United States District Court, S.D. Mississippi, Northern Division
OPINION AND ORDER
WILLIAM H. BARBOUR, JR. UNITED STATES DISTRICT JUDGE
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
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).
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
- His due process rights were violated because the state was
allowed to try him under a statute that was not specified in
- 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.
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].
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. § 636(b); Fed.R.Civ.P. 72(b).
Thereafter, the district judge may accept, reject, or modify
the recommendation of the ...