United States District Court, S.D. Mississippi, Southern Division
ORDER ADOPTING MAGISTRATE JUDGE'S REPORT AND
RECOMMENDATION  AND DISMISSING PETITION  FOR WRIT OF
HABEAS CORPUS WITH PREJUDICE
SULEYMAN OZERDEN, UNITED STATES DISTRICT JUDGE.
matter comes before the Court on the Report and
Recommendation  of United States Magistrate Judge Linda
R. Anderson, entered in this case on July 9, 2018. The
Magistrate Judge recommended that the Petitioner's
Petition  for Writ of Habeas Corpus be dismissed with
March 2011, Petitioner Barry Melton
(“Petitioner”) was convicted of possession of a
controlled substances with intent to distribute in the
Circuit Court of Harrison County, Mississippi, Second
Judicial District. Final J. [13-6] at 13. Pursuant to
Mississippi Code § 99-19-81, Petitioner was sentenced to
a term of imprisonment of forty (40) years without hope of
parole or probation, to serve in the custody of the
Mississippi Department of Corrections. Id. at 14.
Petitioner, through counsel, appealed to the Mississippi
Court of Appeals, which affirmed the conviction and sentence
on October 9, 2012. See Melton v. State, 118 So.3d
605 (Miss. Ct. App. 2012). Subsequently, Petitioner filed a
pro se motion for post-conviction habeas relief in the
Harrison County Circuit Court. The Circuit Court denied his
motion on May 15, 2015, and Petitioner appealed to the
Mississippi Court of Appeals, which affirmed the trial
court's decision on September 27, 2016. See Melton v.
State, 201 So.3d 1085 (Miss. Ct. App. 2016). Petitioner
failed to petition the court for rehearing within fourteen
days. See Miss. R. App. P. 40(a).
November 11, 2016, Petitioner filed this pro se Petition 
under 28 U.S.C. § 2254 for Writ of Habeas Corpus by a
person in state custody. Pet.  at 1. Petitioner advances
three issues in his Petition : (1) ineffective assistance
of counsel regarding his defense attorney's failure to
object to admission of a recorded police interview which
included prior bad acts; (2) failure of the trial court to
not grant Petitioner's motion for judgment
notwithstanding the verdict regarding the sufficiency of
evidence to support the finding of intent to distribute; and
(3) failure of the trial court to sua sponte order a new
trial after admission of his recorded police interview. Pet.
 at 5-8.
9, 2018, the Magistrate Judge entered a Report and
Recommendation  that the Petitioner's Petition  be
dismissed with prejudice. Petitioner has not filed any
objections to the Report and Recommendation , and the
time for doing so has passed.
no party has objected to a magistrate judge's report and
recommendation, the Court need not conduct a de novo review
of it. 28 U.S.C. § 636(b)(1) (“A judge of the
court shall make a de novo determination of those portions of
the report or specified proposed findings or recommendations
to which objection is made.”). In such cases, the Court
applies the “clearly erroneous, abuse of discretion and
contrary to law” standard of review. United States
v. Wilson, 864 F.2d 1219, 1221 (5th Cir. 1989).
conducted the required review, the Court concludes that the
Magistrate Judge's findings are not clearly erroneous,
nor are they an abuse of discretion or contrary to law.
See Id. The Court agrees with the Magistrate's
conclusion. First, Petitioner failed to exhaust his
ineffective assistance of counsel claim and has not
demonstrated cause for the default or that “failure to
consider the claim will result in a fundamental miscarriage
of justice.” Jones v. Jones, 163 F.3d 285, 296
(5th Cir. 2016). Second, the Mississippi Court of
Appeal's finding that the jury heard sufficient evidence
from which it could rationally infer guilt beyond a
reasonable doubt, and from which it could reasonably infer
Petitioner's intention to sell methamphetamine, were not
objectively reasonable. See Coleman v. Johnson, 556
U.S. 650, 651-56 (2012); Jackson v. Virginia, 443
U.S. 307, 319 (1979). Third, Petitioner failed to show that
the state court's rejection of his claim that the trial
court erred by allowing a police statement which included
prior bad acts was prejudicial. See Brecht v.
Abrahamson, 507 U.S. 619, 637 (1993). For these reasons
and for the reasons more fully stated in the Magistrate
Judge's Report and Recommendation , dismissal with
prejudice is warranted.
Court will adopt the Magistrate Judge's Report and
Recommendation  as the opinion of this Court and will
dismiss the Petition  for Writ of Habeas Corpus with
IS, THEREFORE, ORDERED AND ADJUDGED that, the Report
and Recommendation  of United States Magistrate Judge
Linda R. Anderson, entered on July 9, 2018, is
ADOPTED in its entirety as the finding of
IS, FURTHER, ORDERED AND ADJUDGED that Petitioner
Barry Melton's Petition  for Writ of Habeas Corpus is
DISMISSED WITH PREJUDICE.