United States District Court, N.D. Mississippi, Greenville Division
SHARION AYCOCK, U.S. DISTRICT JUDGE
matter comes before the court on the pro se petition
of Mario Harris for a writ of habeas corpus under 28
U.S.C. § 2254. The State has responded to the petition,
and the matter is ripe for resolution. For the reasons set
forth below, the instant petition for a writ of habeas
corpus will be denied.
Corpus Relief Under 28 U.S.C. § 2254
writ of habeas corpus, a challenge to the legal
authority under which a person may be detained, is ancient.
Duker, The English Origins of the Writ of Habeas Corpus: A
Peculiar Path to Fame, 53 N.Y.U.L.Rev. 983 (1978); Glass,
Historical Aspects of Habeas Corpus, 9 St. John's L.Rev.
55 (1934). It is “perhaps the most important writ known
to the constitutional law of England, ” Secretary
of State for Home Affairs v. O'Brien, A.C. 603, 609
(1923), and it is equally significant in the United States.
Article I, § 9, of the Constitution ensures that the
right of the writ of habeas corpus shall not be
suspended, except when, in the case of rebellion or invasion,
public safety may require it. Habeas Corpus, 20 Fed.
Prac. & Proc. Deskbook § 56. Its use by the federal
courts was authorized in Section14 of the Judiciary Act of
1789. Habeas corpus principles developed over time
in both English and American common law have since been
statutory provisions on habeas corpus appear as
sections 2241 to 2255 of the
1948 Judicial Code. The recodification of that year set out
important procedural limitations and additional procedural
changes were added in 1966. The scope of the writ, insofar as
the statutory language is concerned, remained essentially the
same, however, until 1996, when Congress enacted the
Antiterrorism and Effective Death Penalty Act, placing severe
restrictions on the issuance of the writ for state prisoners
and setting out special, new habeas corpus
procedures for capital cases. The changes made by the 1996
legislation are the end product of decades of debate about
Id. Under 28 U.S.C. § 2254, a federal court may
issue the writ when a person is held in violation of the
federal Constitution or laws, permitting a federal
court to order the discharge of any person held by a
state in violation of the supreme law of the land.
Frank v. Mangum, 237 U.S. 309, 311, 35 S.Ct. 582,
588, 59 L.Ed. 969 (1915).
and Procedural Posture
Harris is in the custody of the Mississippi Department of
Corrections and is currently housed at Mississippi State
Penitentiary in Parchman, Mississippi. Mr. Harris was
convicted of murder (Count I) and drive by shooting (Count
II) in the Circuit Court of LeFlore County, Mississippi. He
was sentenced to serve a term of life in Count I and thirty
(30) years in Count II, to be served consecutively in the
custody of the Mississippi Department of Corrections as a
habitual offender under Miss. Code Ann. § 99-19-81.
S.C.R., Vol. 1, pg. 51. This sentencing order was later
amended to run the sentences concurrently with each other.
S.C.R., Vol. 1, pg. 60.
Harris appealed his convictions and sentences to the
Mississippi Supreme Court, which assigned the case to the
Mississippi Court of Appeals. In his appellate brief, he
raised the following grounds for relief through counsel:
I. The trial court erred by allowing the introduction of
gruesome photographs that were unnecessary and prejudicial
II. The trial court erred in denying Harris' motion for a
new trial because the verdict was against the overwhelming
weight of the evidence.
III. Whether there was cumulative error that deprived
Appellant of his right to a fundamentally fair and impartial
Mississippi Court of Appeals affirmed Harris' convictions
and sentences. Harris v. State, 188 So.3d 601 (Miss.
Ct. App. 2016) (Cause No. 2014-KA-01398-COA).
Harris filed an application in the Mississippi Supreme Court
seeking permission to proceed with a motion for
post-conviction collateral relief in the trial court. In his
application, he raised the following grounds for relief
pro se, as summarized by the court:
I. Fatally defective indictment for failure to comply with
U.C.C.C.R. 7.06 because Harris should have been charged under
drive by shooting statute, Miss. Code Ann. § 97-3-109,
with regard to the murder victim Cornelius Banks instead of
being charged with murder under Miss. Code Ann. §
II. Ineffective assistance of trial counsel for failure to
file a motion to dismiss for speedy trial violations. Also
ineffective assistance of appellate counsel for failure to
address trial counsel's decision not to pursue the speedy
III. Ineffective assistance of appellate counsel for failure
to seek discretionary review.
IV. The testimony of Mr. Harris' accomplices was
(A) They were not informed that their testimony could be used
against them or that they could choose not to testify;
(B) Tims was never severed and Johnson was severed the day of
(C) Neither had pleaded guilty or been to trial prior to
(D) Both had been given bail.
V. Prosecutorial misconduct for stating in closing that the
accomplices would plead guilty and receive sentences for
their part in the crimes.
VI. The trial judge erred in denying Harris' motion for
directed verdict with regard to Count II.
VII. The conviction and sentence for murder are
unconstitutional because he should have been convicted of
second-degree murder, Miss. Code Ann. § 97- 3-19(1)(b),
which was in effect as of sentencing but not at the time of
VIII. Jury instructions S-1, S-6A, D-8, and D-9 were
Mississippi Supreme Court denied Harris' application,
holding in relevant part:
In his application, Harris argues that he is entitled to
post-conviction collateral relief because: (1) his indictment
was improper; (2) his convictions were against the
overwhelming weight of the evidence; (3) the testimony of his
alleged accomplices was constitutionally infirm; (4) several
jury instructions were defective; and (5) he received
ineffective assistance of trial and appellate counsel. After
due consideration, the panel finds that (1) - (3) are barred
by res judicata and/or lack an arguable basis. Regarding (4),
the panel finds that Harris's claim is waived and/or
barred by res judicata. As to (5), the panel finds that
Harris fails to meet the requisite prongs of deficient
performance and prejudice provided in Strickland v.
Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674
(1984). Accordingly, the panel finds that this application
should be denied.
Harris filed a petition for a writ of habeas corpus
in this court under 28 U.S.C.A. §2254, raising the
following grounds, as summarized by the court:
Ground One: The indictment was fatally defective because
Harris was indicted under the wrong statute
Ground Two: Ineffective assistance of trial counsel for
failure to raise a speedy trial issue and of appellate
counsel for failure to challenge trial counsel's decision
not to raise a speedy trial issue.
Ground Three: The testimony of Harris' accomplices was
Ground Four: The trial judge erred in denying Harris'
motion for directed verdict with regard to Count II.
Ground Five: Ineffective assistance of appellate counsel for
failing to seek discretionary review.
Ground Six: Harris' conviction and sentence are
unconstitutional because he was not convicted under the
second degree murder statute.
Ground Seven: Jury instructions S-1, S-6A, D-8 and D-9 were
reasons set forth below, Mr. Harris is not entitled to
habeas corpus relief based on these claims.
Harris has exhausted his state court remedies as to the
issues raised in the instant petition and that any further
return to the state court on these issues would be futile. A
summary of the evidence will clarify the issues in this case.