United States District Court, N.D. Mississippi, Greenville Division
M. BROWN UNITED STATES DISTRICT JUDGE
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.
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.
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. Doc. #16.
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.
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.
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
less than clear, it appears Pryor objects to Judge
Virden's recommendation as to each ground asserted in the