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Maxwell v. Banks

United States District Court, S.D. Mississippi, Western Division

September 11, 2019

ROBERT A. MAXWELL, #125351 PETITIONER
v.
JACQUELYN BANKS and JIM HOOD RESPONDENTS

          ORDER ADOPTING REPORT AND RECOMMENDATION

          DAVID BRAMLETTE, UNITED STATES DISTRICT JUDGE

         This cause is before the Court on Petitioner Robert A. Maxwell's “Motion for Judgement on Pleadings, ” (docket entry 16), and on the Respondents Jacquelyn Banks and Jim Hood's Response in Opposition to Petitioner's Motion for Judgment on the Pleadings (docket entry 17). Also before the Court is the Report and Recommendation of United States Magistrate Judge F. Keith Ball (docket entry 20). Magistrate Judge Ball recommends that Maxwell's petition be dismissed with prejudice and that his Motion on the Pleadings be denied.

         Federal courts do not sit as “super” state supreme courts in habeas corpus proceedings to review errors under state law. Instead, a state prisoner is entitled to relief under 28 U.S.C. § 2254 only if he is held ‘in custody in violation of the Constitution or laws or treaties of the United States.'” Engle v. Isaac, 456 U.S. 107, 110 (1981)(citing 28 U.S.C. § 2254(a)).

         Maxwell was convicted of manslaughter in the Circuit Court of Lincoln County, Mississippi, on October 29, 2008. See Maxwell v. State, 216 So.3d 416 (Miss. Ct. App. 2017). After trial, but before sentencing, the State moved to amend Maxwell's indictment to charge him as an habitual offender pursuant to Miss. Code Ann. § 99-19-81. The State based its motion on Maxwell's pleas of guilty to the separate crimes of sale of cocaine and escape from jail in 2006. The trial court granted the motion and sentenced Maxwell to a term of 20 years, without parole or early release, to be served consecutively to the sentence he was serving at the time. The trial court further ordered him to pay court costs, a fine of $10, 000, restitution for funeral expenses, and attorney fees.

         On October 19, 2010, Maxwell filed a pro se notice of appeal. He failed to respond to a clerk-issued show cause notice requiring him to show cause as to why the appeal should not be dismissed as untimely. On November 16, 2010, his appeal was dismissed as untimely and the mandate issued on December 8, 2010.

         On February 25, 2015, Maxwell filed an application in the Mississippi Supreme Court pursuant to the Mississippi Uniform Post-Conviction Collateral Relief Act (“MUPCCRA”). On April 1, 2015, the Mississippi Supreme Court dismissed Maxwell's application with directions to proceed in the trial court. Thereafter, the trial court granted Maxwell leave to pursue an out-of-time appeal and referred his case to the Office of Indigent Appeals for appointment of counsel. In Maxwell's out-of-time appeal, counsel raised only one issue: that the trial court erred by allowing the state to amend the indictment, after conviction, to charge Maxwell as an habitual offender. In Gowdy v. State, 56 So.3d 540 (Miss. 2010), the Mississippi Supreme court found that “an amendment to the indictment to allege habitual offender status after conviction is an unfair surprise, ” contrary to Mississippi rules of court practice.

         In its April 11, 2017, decision, the Mississippi Court of Appeals concluded that Gowdy did not retroactively apply to Maxwell's case because his direct appeal, which was dismissed as untimely on November 16, 2010, was final before Gowdy's mandate was issued on April 7, 2011. Maxwell did not file a motion for rehearing or pursue a petition for writ of certiorari before the Mississippi Supreme Court.

         Maxwell then pursued post-conviction collateral relief before the Mississippi Supreme Court, presenting two grounds for relief:

(1) Illegal sentence. The trial court erred by allowing the state to amend Maxwell's indictment after his conviction to include habitual offender status.
(2) Trial counsel ineffective for failing to object to the amendment of the indictment with 99-19-81 enhancement after conviction. Counsel also failed to file a post trial motion to above mentioned.

         In an Order, the Mississippi Supreme Court denied Maxwell relief on September 20, 2017.

         Maxwell filed his § 2254 petition in this Court on February 14, 2018, and raised two grounds for relief:

1. Petitioner is in custody of the MDOC in violation of the United States Constitution, laws, and treaties, the Mississippi Constitution, and state laws by deprivations of due process and equal protection of law through the vindictive imposition of illegal enhanced sentence by constructive amendment of indictment after a jury verdict to include habitual offender status by surprise.
2. Petitioner is in custody of MDOC in violation of the United States Constitution, laws, and treaties, the Mississippi Constitution, and state laws by denial of competent effective assistance of ...

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