United States District Court, S.D. Mississippi, Northern Division
REPORT AND RECOMMENDATION
Keith Ball United States Magistrate Judge.
INTRODUCTION AND HISTORY
Brown, a Mississippi state prisoner, filed this action
seeking federal habeas relief pursuant to 28 U.S.C. §
2254. The undersigned recommends that Brown's petition be
Moore, a neighborhood “candy lady, ” sold candy,
chips, and drinks out of her home in Jackson, Mississippi. On
the morning of July 30, 2015, two men entered Moore's
home for the purpose of robbing her. Ms. Moore, who was 80
years old and legally blind, called out to her granddaughter,
Cheramie Moore, who lived with her. Cheramie, a nurse, had
worked a night shift and was asleep. When Cheramie heard her
grandmother's shouts and got out of bed, she was met at
the door of her bedroom by one of the men, whom she later
identified as Maurice Brown. Brown, who was wielding a
shotgun, demanded money. Cheramie retrieved approximately
$100 from a drawer and gave it to him. The men also then took
from Mattie Moore a cigar box that she used to make change.
Brown was tried and convicted in the Circuit Court of Hinds
County of armed robbery and sentenced to 27 years
appealed, raising as his sole issue the sufficiency of the
evidence. The Mississippi Supreme Court affirmed. Brown
v. State, 235 So.3d 1399 (Miss. 2017). Brown
subsequently filed a petition for post-conviction relief,
raising a claim of ineffective assistance of counsel for
failure to seek dismissal based upon denial of Brown's
right to a speedy trial. The supreme court denied relief by
order dated October 23, 2018. [8-7] at 2.
then filed for relief in this court, alleging the following
ground for relief, as stated by him in the petition:
That [Brown's] conviction and sentence was obtained in
violation of the United States Constitutional Rights to Due
Process of Law, Speedy Trial, and Effective Assistance of
Counsel during trial and the direct appeal.
 at 3.
extent that Brown is attempting to assert a free-standing
claim for violation of his right to a speedy trial or a claim
of ineffective assistance of appellate counsel, those claims
have been defaulted. Brown has never presented those claims
to the Mississippi Supreme Court, and he would now be barred
from doing so. Thus any such claims are now procedurally
barred pursuant to Sones v. Hargett, 61 F.3d 410,
416 (5th Cir. 1995).
claim of ineffective assistance of trial counsel was
adjudicated on the merits by the state court. Therefore, this
court's review is subject to the highly deferential
standard set forth in the Antiterrorism and Effective Death
Penalty Act (AEDPA), 28 U.S.C. § 2254(d), which allows
habeas relief in this case only if the state court's
rejection of the claim involved “an unreasonable
application of . . . clearly established Federal law . . . as
determined by the Supreme Court of the United States”
or “an unreasonable determination of the facts”
in light of the evidence presented to the state court. 28
U.S.C. Â§ 2254(d). The Supreme Court has repeatedly emphasized
that “an unreasonable application of federal
law is different from an incorrect application of
federal law.” Renico v. Lett, 559 U.S. 766,
773 (2010) (quoting Williams v. Taylor, 529 U.S.
362, 410 (2000)). “[A] federal habeas court may not
issue the writ simply because that court concludes in its
independent judgment that the relevant state-court decision
applied clearly established federal law erroneously or
incorrectly.” Williams, 529 U.S. at 411.
Rather, the application must be not only incorrect but also
“objectively unreasonable.” Id. at 409.
Under this deferential standard, federal relief is precluded
“so long as 'fairminded jurists could disagree'
on the correctness of the state court's decision.”
Harrington v. Richter, 562 U.S. 86, 102 (2011)
(quoting Yarborough v. Alvarado, 541 U.S. 652, 664
of ineffective assistance claims begins with the well-known
test set forth in Strickland v. Washington, 466 U.S.
668 (1984), which requires that a petitioner show that his
counsel's performance was deficient and that the
deficiency resulted in prejudice to the defense. But
when' 2254(d) applies, the ultimate question is not
whether counsel was ineffective under Strickland.
Rather, the reviewing court must ask “whether there is
any reasonable argument that counsel satisfied
Strickland's deferential standard.”
Richter, 562 U.S. at 105.
complains that his right to a speedy trial was violated and
that his attorney's failure to inform him of his right to
a speedy trial and to seek dismissal on this basis
constituted ineffective assistance of counsel. An analysis of
Brown's ineffective assistance claim requires a
consideration of whether either of these rights was violated
in his case. The relevant chronology of events is as follows:
July 30, 2015
Date of the offense.
August 14, 2015
Brown was taken into custody in Abilene, Texas.
[8-3] at 8.
January 21, 2016
Indictment. [8-1] at 5.
February 16, 2016
Arraignment. Bond set and counsel appointed. Trial
set for June 6, 2016. [8-1] at 6, 7.
February 19, 2016
Defense counsel filed a demand for a speedy trial.
[8-1] at 8.
April 25, 2016
Agreed order continuing trial to August 8, 2016.