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Trotter v. Hall

United States District Court, S.D. Mississippi, Eastern Division

August 17, 2018

MILTON TROTTER PETITIONER
v.
PELICIA E. HALL, et. al RESPONDENTS

          REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE

          LINDA R. ANDERSON UNITED STATES MAGISTRATE JUDGE

         This cause is before the Court on Respondents' Motion to Dismiss Petitioner Milton Trotter's Third Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254. The first petition was dismissed with prejudice as time-barred pursuant to 28 U.S.C. § 2244(d) in 2006. Trotter v. Mississippi (Trotter I), No. 4:05CV163-LS, 2006 WL 1581348 (S.D.Miss. Apr. 5, 2006). The second petition was ruled partially successive by the Fifth Circuit, In re Trotter (Trotter II), 544 Fed.Appx. 392 (5th Cir. 2013), and dismissed on remand for failure to exhaust the non-successive claim in 2013. Trotter v. Epps, et al. (Trotter III), No. 4-12-CV-00061, HTW-LRA (S.D.Miss. Apr. 12, 2012). Trotter, having now fully exhausted his claims on state post-conviction review, Trotter v. State (Trotter IV), 212 So.3d 829 (Miss. Ct. App. 2014), cert. granted, 178 So.3d 333 (Miss. 2015), aff'd en banc, No. 2013-CT-00547-SCT (Miss. Sept. 15, 2016), files the instant petition (Trotter V) challenging his continued incarceration by the State of Mississippi.

         The facts and procedural history are outlined in detail in the above referenced decisions and will not be repeated in depth here. In 1981, Trotter was sentenced to two terms of life imprisonment. The United States District Court for the Southern District of Mississippi imposed the first sentence pursuant to a guilty plea on a federal kidnapping charge. The second sentence was imposed by the Circuit Court of Lauderdale County, Mississippi, pursuant to a guilty plea of murder arising from the same instance as the kidnapping. The circuit court's sentencing order provided that Trotter would be allowed to serve his state life sentence concurrently with his federal sentence in the federal penitentiary.[1]

         In May 2011, Trotter was paroled from his federal sentence after serving 30 years in federal custody. Upon his release however, he was transferred to state custody after having been denied state parole a month earlier. Aggrieved, Thomas filed collateral review applications in state and federal court asserting, inter alia, that his 1981 plea agreement was breached by the Mississippi Parole Board's refusal to grant him parole when the federal authorities granted parole on his concurrent federal life sentence for kidnapping. Specifically, he claimed that by entering a guilty plea, “he traded an opportunity to defend against the murder charge, to require a grand jury to indict him in exchange for the promise by the State of Mississippi that when he served his life sentence in the federal system he would be paroled.” According to Trotter, the Mississippi Parole Board had a duty, “created by his agreement to waive indictment and plead guilty in state court” to grant parole. The failure to do so was a breach of his plea agreement rendering his plea involuntary, and his “continued incarceration by the State of Mississippi requires him to challenge his plea to murder.”[2]

         The Mississippi Court of Appeals rejected Trotter's claim on post-conviction review, explaining as follows:

Though Trotter pushes a “breach of plea agreement” claim, we find he is reading into both his state plea agreement and sentencing order a term that simply does not exist. What Trotter is trying to do is stretch the circuit judge's courtesy of allowing him to serve his concurrent state sentence in a federal correctional institution into some sort of “promise” that he “must” immediately be granted state parole if he is ever paroled in the federal system.
Trotter pled guilty to a federal kidnapping charge in the Southern District of Mississippi and received a life sentence. And on October 19, 1981, he waived indictment and pled guilty to murder in the Lauderdale County Circuit Court. Trotter's sentencing order for his state murder conviction shows he was “sentenced to a term of life in the Mississippi State Penitentiary at Parchman, Mississippi.” This sentence was “to run concurrent[ly] with the life sentence of the United States Federal Court.” The order also stated that Trotter “[is] allowed to serve said sentence in the [f]ederal [p]enitentiary.”
It is clear Trotter pled guilty to two different crimes, in two distinct jurisdictions, and received two separate concurrent life sentences. But there is absolutely nothing in his plea agreement, the sentencing order, or any other part of Trotter's record submissions that shows he was promised parole on his Mississippi sentence if granted parole in the federal system. What is more, Mississippi's parole mechanism is permissive, not mandatory, so the judge could not have bound the Parole Board. Instead, our review shows Trotter got just the sentence he bargained for in his murder case-a concurrent life sentence.

Trotter IV, 212 So.3d at 832. The decision was affirmed by an equally divided Mississippi Supreme Court on September 15, 2016. Trotter now brings the instant petition and raises the same grounds considered and rejected on post-conviction review.[3]

         In Ground One, he contends that his constitutional rights were violated by the State of Mississippi's failure to honor his plea agreement that when he was “paroled from his federal life sentence for kidnaping, he would have served all his state life sentence and thus be entitled to parole.” According to Trotter, “[s]uch development makes the waiver of rights to trial, due process of law, assistance of counsel and proof beyond a reasonable doubt subject to challenge as violating his United States constitutional rights to fundamental fairness, trial by jury, proof beyond a reasonable doubt and process of law.”[4]

         In Ground Two, Trotter asserts that he is entitled to habeas relief because he is actually innocent of the underlying murder conviction. In every petition for relief, he has consistently maintained that he was asleep while the murder was being committed.[5]

         In Ground Three, Trotter raises various claims challenging the state habeas proceedings, specifically: (1) the state courts' refusal to conduct an evidentiary hearing on his breached plea agreement and involuntary guilty plea claims; (2) the state appellate court's ruling that his actual innocence claim was procedurally barred; (3) the state appellate court's refusal to order an evidentiary hearing on his breached plea agreement claim; and, (4) the state appellate court's refusal to vacate his conviction and order a new trial.[6]

         Respondents argue that to the extent Trotter challenges his guilty plea and conviction or alleges actual innocence, his claims are successive and should be dismissed for lack of jurisdiction. See 28 U.S.C. § 2244(b). In the alternative, Respondent argues that the instant petition should be dismissed as untimely pursuant to 28 U.S.C. § 2244(d), or for failure to state a claim upon which relief may be granted.

         As a preliminary matter, Trotter has made no showing that he has received authorization from the Fifth Circuit to file a third application for writ of habeas corpus. Pursuant to 28 U.S.C. § 2244(b)(3), before a successive application may be filed in the district court, “the applicant shall move in the appropriate court of appeals for an order authorizing the district court to consider the application.” See Burton v. Stewart, 549 U.S. 147, 156 (2007). Until Trotter obtains leave to file a successive petition, this court lacks jurisdiction to consider his claims or the affirmative defenses raised in response thereto. See Robinson v. Johnson, 313 F.3d 128, 140 (3rd Cir. 2002) (“It would circumvent the intent of the gatekeeping function of § 2244 for a district court to proceed to rule on the merits of a second or successive petition or on any affirmative defense before the court of appeals has made a decision whether to let the petition for habeas corpus proceed in the district court.”). The undersigned therefore recommends that this petition be dismissed without ...


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