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Totten v. Shaw

United States District Court, N.D. Mississippi, Oxford Division

August 9, 2018

JEROME TOTTEN PETITIONER
v.
FRANK SHAW, and ATTORNEY GENERAL OF THE STATE OF MISSISSIPPI RESPONDENTS

          MEMORANDUM OPINION AND ORDER

          SHARION AYCOCK UNITED STATES DISTRICT JUDGE.

         Petitioner Jerome Totten, a Mississippi inmate proceeding pro se, has filed a federal habeas petition pursuant to 28 U.S.C. § 2254 challenging the convictions and sentences for burglary of a dwelling and grand larceny that he received in the Circuit Court of Tate County, Mississippi. Having considered the submissions of the parties, the State-court record, and the law applicable to Totten's claims, the Court finds that an evidentiary hearing[1] is not warranted, and that the petition should be denied.

         I. Background Facts and Procedural History

         In March 2012, Tate County resident, Corey Rakestraw, was test-driving his newly-repaired dirt bike near his home when a man in a white, extended-cab pickup stopped him to ask if the bike was for sale. After a brief conversation that concluded with no sales transaction occurring, Rakestraw returned home. As he turned into his driveway, Rakestraw noticed that the white truck followed behind him, looking toward the Rakestraw home as he passed by slowly.

         A few days later, Rakestraw left town for two weeks for work. His wife and children stayed with extended family while he was gone. When Rakestraw returned home on April 11, 2012, he discovered that his home had been burglarized. Among the items missing from the home were a clothes dryer, two chainsaws, an Amish-style heater, a laptop, and tools. Rakestraw notified the Tate County Sheriff's Department of the burglary and contacted a local pawn shop owned by Eddie Archer to ask the shop employees to watch for the stolen items. The pawn shop employee who answered Rakestraw's call put him in touch with Marshall County Sheriff's Department Investigator, Jason Mills, who informed Rakestraw that the sheriff's department had recently recovered a heater and a laptop from community members who believed the items might have been stolen as part of a recent string of church burglaries that were under investigation. Specifically, a local woman named Annie Davis had purchased a heater from Jerome Totten for $10 and turned it over to the police, believing that it might be stolen. A laptop was recovered after Totten attempted to sell it to Bo Mims, who, at the request of pawn shop owner Eddie Archer, was on the lookout for a laptop stolen from a local church. The heater and laptop were not linked to the church burglaries, however, but were both identified by Rakestraw as property stolen during the burglary of his home in Tate County. Trial testimony established that when Rakestraw identified the recovered computer as his property, he and his wife also identified a disk found inside the laptop as a medical terminology disk belonging to his wife.

         At trial, Rakestraw identified Totten as the man who asked about buying his dirt bike. The heater and laptop had previously been returned to him, so he identified police photographs of the recovered items as his personal property. He also testified as to the value of the items stolen from his home, which totaled at least $1, 860. Annie Davis and Bo Mims testified that they had received the stolen heater and laptop directly from Totten. Totten testified on his own behalf and argued that, because he had a good job, he was not motivated to commit the burglary. The court denied Totten's motion for a directed verdict.

         The jury returned a unanimous verdict of guilty on both the burglary and grand-larceny counts. Totten was sentenced as a habitual offender to twenty-five years for burglary and ten years for grand larceny, to be served concurrently. The court denied his post-trial motions.

         Following the trial, the court permitted Totten's counsel was to withdraw, and the Office of Indigent Appeals were appointed to assist Totten in his appeal. On appeal, the Mississippi Supreme Court affirmed the judgment of the circuit court. Totten v. State, 166 So.3d 32 (Miss. 2015), reh'g denied, June 25, 2015 (Cause No. 2013-KA-01768-SCT). Certiorari review was denied on October 13, 2015. See Doc. #24-2.

         Proceeding pro se, Totten filed an application for post-conviction review in the Mississippi Supreme Court. By Order filed June 15, 2017, the Mississippi Supreme Court denied Totten's application. See Doc. #24-3 (Cause No. 2016-M-00937).

         On or about October 5, 2017, Totten filed the instant action, raising the following twenty-six claims for review, as paraphrased:

Ground One: Whether the court erred by allowing an electronic device to be used to keep petitioner from objecting.
Ground Two: Whether the court erred in allowing evidence known to be false.
Ground Three: Whether the court erred in a deliberate suppression of evidence favorable to petitioner.
Ground Four: Petitioner was denied due process of law or counsel when he was denied an initial appearance and preliminary hearing within 48 hours of arrest.
Ground Five: Petitioner's rights under the Mississippi Constitution and the United States Constitution were violated when the magistrate had no facts in the warrant affidavit to issue a warrant for burglary.
Ground Six: Petitioner's due process rights were violated when the Sheriff's Department failed to preserve the evidence.
Ground Seven: Petitioner was denied due process when the State failed to comply with its obligations under Mississippi Uniform Criminal Rules of Circuit Court Practice 4.06.
Ground Eight: Petitioner's rights under the United States and Mississippi Constitutions were violated when the prosecution used hearsay evidence of a disk, and petitioner was not given an opportunity to cross-examine the owner of the disk.
Ground Nine: Petitioner's rights under the United States and Mississippi Constitutions were violated by the state presenting false evidence in trial and on appeal.
Ground Ten: Counsel rendered ineffective assistance in failing to object to the prosecutor's improper comments in front of the jury and during closing arguments of the guilt phase of trial.
Ground Eleven: Counsel rendered ineffective assistance in failing to object to the prosecutor's presentation of false witness testimony and by the offer of inadmissible hearsay evidence of a disk.
Ground Twelve: Counsel rendered ineffective assistance in failing to object to the fact that the prosecutor lied about having all evidence in her possession, as the evidence had already been returned.
Ground Thirteen: Petitioner was denied due process and a fair trial when the trial judge overruled jury instruction S-5 and when the prosecutor intentionally misstated the evidence. Counsel was ineffective in failing to preserve this issue for appeal.
Ground Fourteen: Petitioner was denied process when the State argued facts outside of the record on appeal.
Ground Fifteen: Petitioner was denied his right to counsel when he was denied a right to be heard by counsel.
Ground Sixteen: Petitioner was denied his right to counsel when counsel failed to perfect the appeal.
Ground Seventeen: Trial counsel was ineffective when he failed to make use of impeaching evidence.
Ground Eighteen: Petitioner was denied his right to fair trial when counsel failed to adequately investigate and argue the lack of probable cause for his arrest.
Ground Nineteen: Trial counsel was ineffective in failing to file a motion to suppress evidence.
Ground Twenty: Trial counsel was ineffective for failing to object to the prosecution's discovery violation.
Ground Twenty-One: Trial counsel was ineffective in failing to object to the disk that served as the State's proof of property.
Ground Twenty-Two: Trial counsel was ineffective in failing to object to fact that there was no opportunity to cross examine the owner of the computer and disk.
Ground Twenty-Three: Trial counsel was ineffective in failing to have the State give a proper chain of custody with the evidence.
Ground Twenty-Four: Trial counsel was ineffective in failing to subject the prosecution's case to meaningful adversarial testing.
Ground Twenty-Five: Appellate counsel was ineffective in failing to get the complete trial record of all trial exhibits and to use plain error when the State had no proof of the disk.
Ground Twenty-Six: The cumulative errors that occurred during the petitioner's case denied him of his constitutional rights.

         Respondents answered the petition on April 17, 2018, conceding that all federal habeas issues raised by Totten were exhausted in State court. Doc. #24. On or about June 19, 2018, Totten filed a response to the answer. Doc. #32.

         II. Legal Standard

         The Court's review of the instant petition is governed by the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), which prevents the grant of federal habeas relief on any claim adjudicated on the merits in state court unless that adjudication (1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established United States Supreme Court precedent; or (2) resulted in a decision based on an unreasonable determination of facts in light of the evidence presented. See 28 U.S.C. § 2254(d)(1) & (2); Schriro v. Landrigan, 550 U.S. 465, 473 (2007).

         Federal habeas relief may be granted under the “contrary to” clause where the State court (1) arrives at a conclusion opposite that reached by the Supreme Court on a question of law; or (2) decides a case differently than the Supreme Court on a set of materially indistinguishable facts. See Williams v. Taylor, 529 U.S. 362, 405-06 (2000). Under the “unreasonable application” clause, a federal court may grant relief where the State court applies the correct legal principle to the facts in an unreasonable manner. See id. at 407-08; Brown v. Payton, 544 U.S. 133, 141 (2005). Whether a decision is “unreasonable” is an objective inquiry; it does not turn on whether the decision is merely incorrect. See Schriro, 550 U.S. at 473 (“The question under the AEDPA is not whether a federal court believes the state court's determination was incorrect but whether that determination was unreasonable a substantially higher threshold.”); Williams, 529 U.S. at 410-11; Morrow v. Dretke, 367 F.3d 309, 313 (5th Cir. 2004) (finding habeas relief merited where state decision was both incorrect and objectively unreasonable). When evaluating the evidence presented in state court, a federal habeas court presumes the correctness of the state court's factual findings unless the petitioner rebuts the presumption by clear and convincing evidence. See 28 U.S.C. § 2254(e)(1).

         III.

         Claims

         A. Ground One

         In Ground One, Totten claims that he was denied due process because an electronic device was placed on him during trial, thereby hindering his ability to raise objections without being shocked. Therefore, he claims, the device hindered his ability to participate in his own defense, and the circuit court erred in its duty to see that Totten was able to aid in his defense and receive a fair trial.

         During the hearing on post-trial motions, Totten informed the trial court that an officer had placed an “electronic shock device” on him, telling him that it would electrocute him if he objected to anything that occurred at trial. Doc. #25-4 at 27. He stated “[t]hat's the reason why I didn't stand up and saying nothing.” Id.

The Mississippi Supreme Court found no factual support for Totten's claim, noting:
Totten argues that he was denied due process due to the presence of an electronic device on him during trial. He states in his supplemental brief that he was afraid to participate verbally in his defense because he was afraid of being shocked. This argument is without merit. As an initial matter, this argument is without merit because there is no factual support in the record that an electronic device to shock him was placed upon him during trial. The record does show that, not only did Totten testify at length on the stand in his own defense, but he was very vocal during the trial proceedings, telling his attorney questions to ask, addressing the bench, and at one point ...

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