United States District Court, S.D. Mississippi, Western Division
ORDER ADOPTING REPORT AND RECOMMENDATION
BRAMLETTE UNITED STATES DISTRICT JUDGE.
cause is before the Court on the Petitioner James Douglas
McKnight (“McKnight”)'s Petition under 28
U.S.C. § 2254 for a Writ of Habeas Corpus by a Person in
State Custody (docket entry 1), filed
September 5, 2017. McKnight also filed an Amended Petition on
October 10, 2017 (docket entry 5). The
Petition and Amended Petition challenge McKnight's 2013
conviction for murder and possession of a firearm by a
Respondent, Warden Brian Ladner, filed an Answer to the
Amended Petition on March 9, 2018 (docket entry 10). In a
text order of April 5, 2018, McKnight was granted an
extension of time to file a Reply to Warden Ladner's
Answer. On June 27, 2018, McKnight moved for an additional
extension of time (docket entry 13), and the Court granted
the motion in a text order of June 28, 2018, extending the
time for filing the Reply to July 30, 2018.
August 7, 2018, McKnight filed motions for further additional
time (docket entry 15), to amend his Petition (docket entry
16), and to invoke discovery (docket entry 17). The motion
for additional time was granted and the motion to amend
petition was denied; however, the petitioner was granted
leave to file exhibits with his reply (text order of August
8, 2018). Warden Ladner filed his response to McKnight's
motion to invoke discovery on August 21, 2018 (docket entry
September 6, 2018, McKnight filed a motion for extension of
time to file a response/reply to the Respondent's Answer
to McKnight's Amended Complaint. The motion was granted
in part and denied in part (text order of September 7, 2018).
On October 10, 2018, McKnight filed a motion to amend his
Petition (docket entry 21). Warden Ladner filed a Response,
submitting that McKnight's motion to amend had previously
been granted to the extent that the Court allowed McKnight to
supplement his petition with the exhibits attached to his
motion to amend. In addition, the Respondent submitted that
McKnight's remaining arguments raised in the motion to
amend should be liberally construed as his traverse or reply
to the Respondent's answer, and, as such, any motion to
amend on those arguments should be denied given that the
Court had allowed petitioner time to file his traverse.
Judge John C. Gargiulo entered a text order on October 29,
2018, denying McKnight's Motion to Amend Petition for
Writ of Habeas Corpus, but construing McKnight's exhibits
21-1 and 21-2 as his Reply to the Response to his Petition
for Writ of Habeas Corpus for the Court's consideration.
On February 11, 2019, the Magistrate Judge denied
McKnight's motion to invoke discovery (docket entry 23).
Judge Gargiulo issued a Report and Recommendation
(docket entry 24) recommending that the
Petitioner's request for relief under § 2254 be
denied on grounds that McKnight has not demonstrated that he
is entitled to federal habeas relief.
the entry of the Report and Recommendation, McKnight filed a
Motion to Alter or Amend Judgment (docket entry
26) and a Motion Objecting to Magistrate Judge's
Report and Recommendation (docket entry 27).
On March 15, 2019, Warden Ladner filed a Response in
Opposition to Petitioner's Motion to Alter and Amend
(docket entry 28) and a Response to
Petitioner's Objections to the Report and Recommendation
(docket entry 29). Petitioner McKnight filed
a “Reply to Respondents' Response to
Petitioner's Objections to Report and Recommendation on
March 27, 2019 (docket entry 30).
is a post-conviction inmate in the custody of the Mississippi
Department of Corrections. After a jury trial in the Circuit
Court of Pike County, Mississippi, he was convicted of murder
and possession of a firearm by a convicted felon on June 13,
2013. He was sentenced as a habitual offender to life in
prison without the possibility of parole on each conviction,
with sentences to run consecutively. After his motions for
judgment notwithstanding the verdict and for a new trial were
denied, McKnight appealed, and the Mississippi Court of
Appeals affirmed his conviction.
direct appeal to the Mississippi Court of Appeals, McKnight,
who was represented by an attorney, raised seventeen issues.
The State Court of Appeals found each of these to be without
merit and affirmed McKnight's conviction. After his
motion for rehearing was denied, McKnight, proceeding pro
se, filed a Petition for Writ of Certiorari before the
Mississippi Supreme Court raising three grounds for relief.
The Mississippi Supreme Court denied McKnight's Petition
on March 31, 2016. McKnight then filed a Motion for
Post-Conviction Collateral Relief before the Mississippi
Supreme Court on April 26, 2017, raising thirty-seven grounds
for relief. The Mississippi Supreme Court found
McKnight's claims of ineffective assistance of counsel to
be without merit, and found that the other claims were
September 5, 2017, McKnight filed his 28 U.S.C. § 2254
Petition for Writ of Habeas Corpus, then filed an Amended
Petition on October 10, 2017, in which he raises thirty-eight
grounds for relief.
Warden Ladner filed his Answer on March 9, 2018, alleging
that McKnight did not exhaust ground 19, that grounds 3, 4,
9, 10, 28 and 32 rest on adequate state law grounds, that the
remaining grounds for relief were decided on the merits in
state court, and that the state court's decision was not
an unreasonable application of federal law.
Amended Petition of October 10, 2017, was denied by the
Court, but the Court also construed McKnight's attached
exhibits (docket entries 21-1 and 21-2) as his Reply.
McKnight makes additional arguments concerning Grounds 1, 2,
3, 4, 5, 6, 7, 8, 9, 11, 12, 13, 23, 35, and 39; however, he
also states that the “Court may strike” Grounds
19 and 22; therefore, the Court will not consider those two
considering the merits of a petition under 28 U.S.C. §
2254 for writ of habeas corpus, the Court must first
determine if all procedural steps necessary to preserve each
issue raised for federal review have been taken. First, the
petition must be timely filed with the Court in compliance
with 28 U.S.C. § 2244(d)(1). In this case, there is no
challenge to the timeliness of the petition. Second, a writ
of habeas corpus may not be granted unless it appears that a
petitioner has exhausted all available state court remedies.
See 28 U.S.C. § 2254(b)(1). To exhaust a
federal constitutional claim, a petitioner must “fairly
present” in state court both the operative facts and
federal legal theory of his or her claim in a procedurally
proper manner. O'Sullivan v. Boerckel, 526 U.S.
838, 848 (1999).
matter of comity and federalism, federal courts generally may
not review a state court's denial of a federal
constitutional claim if the state court's decision rests
on a state procedural ground that is independent of the
federal question and adequate to support the judgment.
Coleman v. Thompson, 501 U.S. 722, 729-30 (1991).
“To qualify as an ‘adequate' procedural
ground, a state rule must be ‘firmly established and
regularly followed.'” Walker v. Martin,
562 U.S. 307, 316 (2011)(quoting Beard v. Kindler,
558 U.S. 53, 60-61 (2009)). A federal court may also find
claims procedurally defaulted if the petitioner failed to
present them in state court and “the court to which the
petitioner would be required to present his claims in order
to meet the exhaustion requirement would now find the claims
procedurally barred.” Sones v. Hargett, 61
F.3d 410, 416 (5th Cir. 1995)(quoting Coleman, 501
U.S. at 735 n.1). Federal courts retain the power to consider
the merits of a procedurally defaulted claim if the
petitioner demonstrates legitimate cause for the failure to
properly exhaust the claim in state court and prejudice from
the alleged constitutional violation, or shows that a
fundamental miscarriage of justice would result if the claim
is not heard on the merits in federal court. See Schlup
v. Delo, 513 U.S. 298, 324-27 (1995).
the issue in a federal habeas proceeding is not whether there
was an error in applying state law but whether there has been
a denial of rights protected by the United States
Constitution. Estelle v. McGuire, 502 U.S. 62, 67-68
(1991). “[I]t is not the province of a federal habeas
court to reexamine state-court determinations on state-law
questions.” Id. The federal courts do not
function as super appellate courts over the states to review
errors under state law and may not correct errors of state
law unless they also violate the constitutional rights of an
accused. See Smith v. Phillips, 455 U.S. 209, 221
(1982); Mendiola v. Estelle, 635 F.2d 487, 491 (5th
matters affecting constitutional rights, federal courts have
a very limited scope of review. The Court's authority to
grant relief to a person held in custody pursuant to a state
judgment is narrowly circumscribed by 28 U.S.C. §
2254(d), which provides that a writ of habeas corpus shall
not be granted unless the state court adjudication of the
1. resulted in a decision that was contrary to, or involved
an unreasonable application of, clearly established Federal
law, as determined by the Supreme Court of the United States;
2. resulted in a decision that was based on an unreasonable
determination of the facts in light of the evidence presented
in the State court proceeding.
recently summarized by the Fifth Circuit Court of Appeals:
Because “§ 2254(d)(1)'s ‘contrary
to' and ‘unreasonable application' clauses have
independent meaning, ” there are three ways a federal
court can grant habeas relief: (1) if the state court
decision was contrary to clearly established Supreme Court
law; (2) if the state court decision involved an unreasonable
application of clearly established Supreme Court law; or (3)
if the state court decision was based on an unreasonable
determination of the facts in light of the evidence
presented. “AEDPA's standard is intentionally
difficult to meet.”
Poree v. Collins, 866 F.3d 235, 245 (5th Cir.
2017)(quoting Bell v. Cone, 535 U.S. 685, 694
(2002); Woods v. Donald, 135 S.Ct. 1372, 1376
(2015)). The state court's factual findings are presumed
to be correct. The petitioner may rebut “the
presumption of correctness by clear and convincing
evidence.” 28 U.S.C. § 2254(e)(1).
Judge Gargiulo begins by finding that Grounds 3, 4, 9, 10,
28, and 32 are procedurally barred, because when McKnight
raised them in his Motion for Post-Conviction Collateral
Relief in State Court, the Mississippi Supreme Court held
that they were procedurally barred from review under Miss.
Code Ann. § 99-39-21(1). That statute provides that a
failure to raise claims at trial and/or on direct appeal
constitutes a waiver of those claims and a procedural bar,
unless the individual shows cause and actual prejudice.
a state prisoner has defaulted his federal claims in state
court pursuant to an independent and adequate state
procedural rule, this court may not review the prisoner's
habeas petition.” Stokes v. Anderson, 123 F.3d
858, 859 (5th Cir. 1997) (citing Coleman, 501 U.S.
at 729). However, an exception exists if the prisoner can
“demonstrate cause for the default and actual prejudice
as a result of the alleged violation of federal law, or
demonstrate that failure to consider the claims will result
in a fundamental miscarriage of justice.” Id.
such state procedural bar must be “firmly established
and regularly followed.” Beard, 558 U.S. at
60-61 (internal quotations omitted). The Fifth Circuit has
previously held that Miss. Code Ann. § 99-39-21(1) is
“an independent and adequate state procedural
rule.” Stokes, 123 F.3d at 861; see also
Nixon v. Epps, 405 F.3d 318, 323 (5th Cir. 2005).
McKnight “bears the burden of showing that the state
did not strictly or regularly follow a procedural bar around
the time of his direct appeal” and “must
demonstrate that the state has failed to apply the procedural
bar rule to claims identical or similar to those raised by
the petitioner himself.” Stokes, 123 F.3d at
860. McKnight does not address this issue; he merely argues
that ineffective assistance of counsel satisfies the cause
and prejudice requirements of the exception or,
alternatively, failure to consider these claims would result
in a fundamental miscarriage of justice (ECF No. 21-2 at
McKnight repeatedly argues that he should be excused from his
failure to raise these claims because he received ineffective
assistance of counsel, McKnight does not address the fact
that he filed his state certiorari petition while
proceeding pro se and only raised three issues.
Therefore, McKnight has not demonstrated sufficient cause to
overcome the adequate state procedural bar, especially
because the Mississippi Courts found his ineffective
assistance of counsel claims to be without merit. See
Edwards v. Carpenter, 529 U.S. 446, 450-54 (2000).
Further, McKnight has not demonstrated that the failure to
consider these claims will result in a fundamental
miscarriage of justice, as he must “show that he has a
colorable claim of factual innocence.” Shore v.
Davis, 845 F.3d 627, 633, n.4 (5th Cir. 2017)(citing
Sawyer v. Whitley, 505 U.S. 333, 339 (1992)).
McKnight has not done so; therefore, Grounds 3, 4, 9, 10, 28,
and 32 are procedurally barred.
McKnight's remaining grounds, the Respondent submits that
these were decided on the merits in state court, and the
state court's determinations were not an unreasonable
application of the law. Grounds 1, 2, 5, 6, 7, 8, 11, 12, 14,
16, 17, 18, 20, 21, 23, 24, 25, 26, 29, 30, and 40 concern
ineffective assistance of trial counsel. Grounds 13, 31, 33,
37, 39, and 41 concern ineffective assistance of appellate
counsel. Closely related to McKnight's ineffective
assistance of counsel claims are Ground 15, recusal of the
original trial judge, and Ground 34, McKnight's right to
a speedy trial. Finally, Ground 35 concerns the Mississippi
Court of Appeal's harmless error analysis with respect to
Sixth Amendment provides that “[i]n all criminal
prosecutions, the accused shall enjoy the right ... to have
the Assistance of Counsel for his defense.” This right
to counsel “is the right to the effective assistance of
counsel.” Strickland v. Washington, 466 U.S.
668, 686 (1984)(quoting McMann v. Richardson, 397
U.S. 759, 771 (1970)). To show ineffective assistance of
counsel, McKnight “must show that counsel's
performance was deficient, ” which “requires
showing that counsel made errors so serious that counsel was
not functioning as the ‘counsel' guaranteed the
defendant by the Sixth Amendment.” Further, he must
show that the performance prejudiced his defense, which
“requires showing that counsel's errors were so
serious as to deprive the defendant of a fair trial, a trial
whose result is reliable.” Id. at 687.
However, “[j]udicial scrutiny of counsel's
performance must be highly deferential, ” and “a
court must indulge a strong presumption that counsel's
conduct falls within ...