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Burgess v. Fisher

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

December 19, 2018

CASEY MARK BURGESS PETITIONER
v.
MARSHALL L. FISHER, Commissioner, Mississippi Department of Corrections RESPONDENT

          OPINION AND ORDER

          WILLIAM H. BARBOUR, JR. UNITED STATES DISTRICT JUDGE

         This cause is before the Court on Petitioner's Objection to the Report and Recommendation (“R and R”) of United States Magistrate Judge John C. Gargiulo. Having considered the R and R, the Objection, the other pleadings in this case, as well as relevant authorities, the Court finds the R and R should be adopted in its entirety over Petitioner's Objection.

         I. Discussion

         Casey Mark Burgess (“Burgess”) was convicted of three counts of sexual battery against his wife “S.B.” in the Circuit Court of Rankin County, Mississippi, and was sentenced to concurrent thirty-year terms of imprisonment on each count. After his post-trial motions for judgment notwithstanding the verdict and new trial were denied by the circuit court, Burgess appealed. On appeal, Burgess raised several issues including, but not limited to, that the instructions given to the jury constructively amended the indictment to include the additional element of force; his voir dire was improperly limited; and the trial court erred by denying his for-cause challenges of certain jurors, excluding evidence of S.B.'s prior sexual acts, denying his motions for instructions and post trial relief, giving a flight instruction, and/or admitting/excluding certain evidence at trial and sentencing. On review, Burgess's conviction and sentence were affirmed. See Burgess v. State, 178 So.3d 1266 (Miss. 2015).

         In November of 2016, Burgess filed a Petition, pursuant to 28 U.S.C. § 2254, for Writ of Habeas Corpus by a Person in State Custody (“2254 Petition”) in this Court, essentially raising the same issues as he did on direct appeal. In his 2254 Petition, Burgess raises the following claims:

- His due process rights were violated because the state was allowed to try him under a statute that was not specified in the indictment.
- His right to a fair and impartial jury was violated because (a) he was precluded from questioning potential jurors about their religious beliefs on the issue of oral sex, and (b) four of his for-cause venire challenges were denied.
- The trial court improperly excluded evidence from S.B. regarding the couple's history of sexual activity, and manner of dress when engaging in that activity.
- The trial court improperly denied his peremptory instructions and post trial motions.
- He was denied a fair and impartial trial because the jury was given a flight instruction.
- His due process and confrontation clause rights were violated when the Court admitted correspondences from third parties during sentencing.
- The trial court erred when it allowed the state to question him about a text message on redirect.

         The 2254 Petition came before United States Magistrate Judge John C. Gargiulo who, on review, entered a Report and Recommendation (“R and R”) recommending that Burgess's Petition be denied. See R and R [Docket No. 12].

         Burgess timely objected to the R and R. Under federal law, a district judge has the authority to review a magistrate judge's R and R regarding prisoner petitions, and is required to make a de novo determination of any portion of the R and R to which a specific written objection has been made. See 28 U.S.C. ยง 636(b); Fed.R.Civ.P. 72(b). Thereafter, the district judge may accept, reject, or modify the recommendation of the ...


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