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Pryor v. Outlaw

United States District Court, N.D. Mississippi, Greenville Division

September 4, 2019

MARVELLE PRYOR PETITIONER
v.
WARDEN TIMOTHY OUTLAW, et al. RESPONDENTS

          ORDER

          DEBRA M. BROWN UNITED STATES DISTRICT JUDGE

         This petition for a writ of habeas corpus is before the Court on the Report and Recommendation of United States Magistrate Judge Jane M. Virden. Doc. #23.

         I

         Procedural History

         On or about May 13, 2016, Marvelle Pryor filed a petition for a writ of habeas corpus challenging his January 2012 conviction for being a felon in possession of a firearm and subsequent sentence under Mississippi's habitual offender statute. Doc. #1. Pryor's petition asserts five grounds for relief: (1) his sentence was grossly disproportionate (Ground One); (2) he was denied due process rights, his right to effective assistance of counsel, and his “right to have the state carry its burden” when his counsel stipulated to the fact that he had previously been convicted of a felony (Ground Two); (3) he was denied effective assistance of counsel because neither his trial counsel nor appellate counsel presented exculpatory evidence from a “crime laboratory expert” (Ground Three); (4) his sentence as a habitual offender was based on inaccurate facts (Ground Four (A)) and his counsel's failure to object violated his right to effective assistance of counsel (Ground Four (B)); and (5) he was denied effective assistance of counsel when his trial counsel failed to object to perjured testimony, and when his appellate counsel failed to raise the perjured testimony issue on appeal (Ground Five). Id. at 4-7.

         The respondents, at the direction of United States Magistrate Judge Jane M. Virden, responded to the petition on September 12, 2016. Doc. #11. Pryor filed his traverse on or about December 19, 2016.[1] Doc. #16.

         On April 9, 2018, Judge Virden issued a Report and Recommendation (“R&R”) recommending that Pryor's petition for a writ of habeas corpus be denied. Doc. #23. Judge Virden found that all grounds of the petition had been raised and considered in state court and, therefore, may not justify habeas relief unless the adjudication of the grounds resulted in a decision that was contrary to clearly established law, or resulted in a decision based on an unreasonable determination of the facts. Doc. #23 at 4-5. The R&R ultimately found Pryor's petition failed to satisfy this standard. Id. at 24.

         On or about May 18, 2018, Pryor filed objections to the R&R, Doc. #27, and a memorandum of law supporting his objections, Doc. #28. On May 30, 2019, the respondents filed a “Notice” stating that they “do not intend to file any formal response to the … objections.” Doc. #30.

         II

         Standard

         Under 28 U.S.C § 636(b)(1)(C), “[a] judge of the court shall make a de novo determination of those portions of the report … to which objection is made.” “[W]here there is no objection, the Court need only determine whether the report and recommendation is clearly erroneous or contrary to law.” United States v. Alaniz, 278 F.Supp.3d 944, 948 (S.D. Tex. 2017) (citing United States v. Wilson, 864 F.2d 1219, 1221 (5th Cir. 1989)).

         III

         Analysis

         Although less than clear, it appears Pryor objects to Judge Virden's recommendation as to each ground asserted in the petition.

         A. Ground ...


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