United States District Court, N.D. Mississippi, Oxford Division
MICHAEL P. MILLS, UNITED STATES DISTRICT JUDGE.
matter comes before the court on the pro se petition
of Franklin Fitzpatrick for a writ of habeas corpus
under 28 U.S.C. § 2254. The State has responded to the
petition, and Mr. Fitzpatrick has replied. The matter is ripe
for resolution. For the reasons set forth below, the instant
petition 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
The 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 habeas
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).
Fitzpatrick is currently in the custody of the Mississippi
Department of Corrections (MDOC) and housed at the South
Mississippi Correctional Institution in Leakesville,
Mississippi. He was convicted of capital murder in the Tippah
County Circuit Court Cause No. TK2011-006. On May 10, 2013,
the circuit court sentenced him as a habitual
offender to serve a term of life imprisonment
without the possibility of parole in the custody of the MDOC.
See SCR, Vol. 2, p. 214-16.
appealed his capital-murder conviction and resulting sentence
to the Mississippi Supreme Court, raising the following
Issue One: The State's elements instruction contained an
improper statement of the law. Therefore, Fitzpatrick's
conviction must be reversed.
Issue Two: The trial court erred when it overruled
Fitzpatrick's motion for a new trial. The overwhelming
weight of the evidence does not support a conviction for
capital murder of a peace officer.
supreme court interpreted the State's argument to raise a
Issue Three: Fitzpatrick is procedurally barred from
challenging the elements instruction on appeal because he did
not object to it at trial.
Mississippi Supreme Court affirmed the judgment of the
circuit court. Fitzpatrick v. State, 175 So.3d 515
(Miss. 2015), reh'g denied, October 15, 2015.
6, 2016, Fitzpatrick filed an application for leave to
proceed in the trial court in Mississippi Supreme Court Cause
No. 2016-M-00662. See SCR, Mississippi Supreme
Court Cause No. 2016-M-00662. In his application, Fitzpatrick
raised the following claims, pro se, which the court
has restated in the interest of brevity and clarity:
Issue One: Fitzpatrick's conviction and sentence were
imposed in violation of the constitution because his
defective indictment failed to properly notify him of the
Issue Two: The trial court violated his due process rights by
failing to sua sponte order a competency hearing;
Issue Three: Fitzpatrick suffered ineffective assistance of
counsel by his trial counsel's alleged failure to: (a)
challenge the allegedly defective indictment; (b) request a
competency hearing; (c) conduct a proper investigation; (d)
present adequate evidence and witnesses; (e) challenge the
admission of statements at trial; and (f) challenge the
alleged hearsay testimony of Agent Moore.
Issue Four: Fitzpatrick's right to a speedy trial was
20, 2016, the Mississippi Supreme Court entered an order
denying the application as being without merit. Id.
Fitzpatrick filed the instant federal petition for a writ of
habeas corpus on August 31, 2016. ECF doc. 1. In his
federal petition, he raises the following issues pro
se, which the court has summarized for the sake of
brevity and clarity:
Ground One: Fitzpatrick's conviction and sentence were
imposed in violation of the constitution because his
allegedly defective indictment is devoid of any allegation
that Fitzpatrick murdered a law enforcement officer.
Ground Two: The State's elements instruction contained an
improper statement of the law.
Ground Three: The trial court violated his due process rights
by failing to sua sponte order a competency
Ground Four: Mr. Fitzpatrick received ineffective assistance
of counsel by his trial counsel's alleged failure to: (a)
challenge the allegedly defective indictment; (b) raise a
speedy trial violation; and (c) hold a competency hearing.
Ground Five: Mr. Fitzpatrick was denied his constitutional
right to a speedy trial.
December 2, 2010, Franklin Fitzpatrick and Joani Clifton
consumed a designer drug commonly referred to as “bath
salts.” SCR, Vol. 5, p. 320-23; Vol. 6, p. 482,
600. Near midnight, Franklin and Clifton went to the home of
Matt Thrasher, a friend of Clifton, in Tippah County. SCR,
Vol. 4, p. 242-44; Vol. 6, p. 537-38. There, Fitzpatrick
consumed more bath salts, along with marijuana and crystal
methamphetamine. SCR, Vol. 6, p. 537-38. In the early morning
hours of December 3, it became apparent that Fitzpatrick had
consumed too much, and he began acting erratically. SCR, Vol.
4, 252-55. He began sweating, hallucinating, and speaking
irrationally. Id.; SCR, Vol. 6, p. 537-38. Thrasher
brought Fitzpatrick a wet rag to cool him off, but Fitzgerald
became aggressive. SCR, Vol. 4, p. 254. Thrasher testified
Fitzpatrick was “slinging [him] around like a rag doll,
” but he somehow broke loose and ordered Fitzpatrick
and Clifton to leave. Id. at p. 254-55.
after driving off with Fitzpatrick, Clifton returned to
Thrasher's house, as she was afraid that she could not
handle Fitzpatrick by herself. Id. at 256-57; SCR,
Vol. 5, p. 325. Thrasher called 911 to report the disturbance
and ask for assistance. SCR, Vol. 4, p. 259; Vol. 5, p. 301.
Tippah County Sheriff's Deputy Rodney Callahan arrived on
the scene around 4:30 a.m. on December 3, 2010. SCR, Vol. 4,
p. 259; Vol. 5, p. 325-26, 349.
Deputy Callahan got to Thrasher's house, he observed
Fitzpatrick pacing in the driveway wearing just a t-shirt and
sweating profusely, despite it being a cool December night.
SCR, Vol. 5, p. 350-52. Deputy Callahan recalled that
Fitzpatrick was “really wet” when he arrived and
that the whites of Fitzpatrick's eyes were “really
large.” Id. Deputy Callahan testified that
Fitzpatrick kept pacing back and forth, licking his lips.
Id. Fitzpatrick repeatedly requested that Deputy
Callahan pray with him, and he kept saying that he thought
the devil was “going to come up and get him.”
Id. Unable to discern whether Fitzpatrick was on
drugs or suffering from some medical condition, Deputy
Callahan called an ambulance. Id. Fitzgerald then
approached Deputy Callahan, touching his sleeve of his
uniform as he asked Deputy Callahan to pray with him.
Id. at 352. Deputy Callahan advised Fitzpatrick not
to approach him like that again or he would tase him.
Id. Fitzpatrick backed off, and Deputy Callahan
spent the next several minutes trying to get Fitzpatrick to
calm down. Id. at 352-56; SCR, Vol. 4, p. 264-65.
Fitzpatrick, however, began expressing his fear that Deputy
Callahan might shoot him, although Deputy Callahan repeatedly
told Fitzpatrick that he only wanted to talk to him.
Id. at 265, 296-97.
minutes of Deputy Callahan's arrival, Deputy Dewayne
Crenshaw also arrived. Id. at p. 264; SCR, Vol. 5,
p. 310, 357. The deputies continued to try to calm
Fitzpatrick down but concluded it was best for his and their
own safety if they restrained Fitzpatrick. SCR, Vol. 5, p.
360-61. As the deputies approached to handcuff him,
Fitzpatrick resisted, and a scuffle ensued. Id. at
362-63. During the encounter, Fitzpatrick gained control of
Deputy Callahan's service weapon. Id. at 362-65.
When he first heard the shots, Deputy Callahan thought Deputy
Crenshaw had shot Fitzpatrick, but when he reached for his
weapon and it was not there, he realized what had happened.
Id. at 365. Fitzpatrick had yanked Deputy
Callahan's weapon from his holster during the struggle
and had used it to fatally shoot Deputy Crenshaw.
Id. at 374-75, 382, 391, 433; SCR, Vol. 6, p. 575.
Callahan immediately ran for cover. SCR, Vol. 5, p. 365. From
there, he noticed Fitzpatrick no longer had the pistol in his
possession, so he decided to try to subdue him. Id.
at 381-82. An intense struggle ensued, but Deputy Callahan
could not gain the upper hand. Id. at 382. At that
point, the ambulance had arrived. Id.
Callahan, despite being in a fierce struggle with
Fitzpatrick, told the paramedics to first check on Deputy
Crenshaw, but it was too late. Id. at 382-83. Deputy
Crenshaw was dead. Id. After tending to Deputy
Crenshaw, Al Crum, an EMT, joined the struggle to subdue
Fitzpatrick. Id. In the end, however, it took