SHARION AYCOCK, District Judge.
This matter comes before the court on the pro se petition of Charlie Singleton for a writ of habeas corpus under 28 U.S.C. § 2254. The State has responded to the petition, and the matter is ripe for resolution. For the reasons set forth below, the instant petition for a writ of habeas corpus will be denied.
Charlie Singleton is in the custody of the Mississippi Department of Corrections and is currently housed at the Central Mississippi Correctional Facility in Pearl, Mississippi. He was convicted of sexual battery in the Circuit Court of Lowndes County, Mississippi. SCR, Vol. 1, pg. 58. Singleton was sentenced to serve a term of fifteen years in the custody of the Mississippi Department of Corrections with five years of post-release supervision — and to pay restitution. Id. at 85-87. Singleton appealed his conviction and sentence to the Mississippi Supreme Court, which assigned the appeal to the Mississippi Court of Appeals. In his appellate brief, Singleton raised the following grounds for relief, as stated through counsel:
The court of appeals affirmed Singleton's conviction and sentence. Singleton v. State 16 So.3d 742 (Miss. Ct. App. 2009), reh'g. denied September 1, 2009 (Cause No. 2008-KA-00508-COA). Singleton did not seek certiorari review in the Mississippi Supreme Court.
Singleton then sought permission from the Mississippi Supreme Court to proceed with a petition for post-conviction collateral relief in the trial court, raising the following grounds for relief, as summarized by the court:
The Mississippi Supreme Court denied Singleton's application for permission to proceed, holding, in relevant part:
Exhibit B to the State's Response.
Singleton then filed a successive application post-conviction collateral relief, raising the same grounds for relief as those raised in his first application. On December 15, 2010, the Mississippi Supreme Court dismissed the petition as successive and, alternatively, found the claims to be without merit. Exhibit C to the State's Response.
On November 2, 2011, Singleton filed a petition for writ of habeas corpus under 28 U.S.C. § 2254 in this court, raising the same grounds for relief as those raised in his motion for post-conviction collateral relief, listed above. Singleton has exhausted state court remedies as to the issues raised in the instant petition.
Singleton is the victim's biological father, but he separated from her mother, Bonnie, when the victim was about three years old. SCR, Vol. 3, pg. 188. At that time, Singleton lived in Chicago. Id. Bonnie testified that the victim's birthday was August 21, 1986, and that the victim had schizophrenia and was mentally retarded. SCR, Vol. 2, pg. 95. In July of 2002, the victim and Bonnie were in Chicago for a family reunion, and Bonnie agreed to allow Singleton to see the victim. Id. at 97. Sometime around September of 2002, Singleton contacted Bonnie and asked if he could move to Mississippi to try to be a father to the victim. Id. at 98. Singleton eventually moved in with Bonnie, the victim, and Bonnie's other daughter, Lee, in September of 2002. Id. at 99.
At trial, Lee, who is the victim's half-sister, testified that, on September 27, 2003, she, the victim, and Singleton were at the house while her mother was at work. Id. at 80. Lee testified that she got up around 9:15 or 9:30 a.m. and went in to her mother and Singleton's room, where she saw the victim laying on a couch with no clothes on from the waist down. Id. at 82. She testified that, "[a]t that point Charlie had his face in between her legs[,]" "[o]n her private part." Id. Lee testified "[f]rom what I seen — from what I seen as far as I can remember, he had his tongue in between her vagina." Id. at 83. Lee then ran upstairs to call her mother at work and informed Bonnie that Singleton was performing oral sex on the victim. Id. at 82-83. While Lee was on the phone with her mother, Singleton was on the other extension telling Bonnie that Lee was lying. Id. at 83.
After receiving Lee's phone call, Bonnie called 911, got a replacement to fill in for her at work, and went to the house. Id. at 101. When she arrived:
Id. at 101-102. Singleton had left the home in Bonnie's vehicle. Id. at 102. The victim was taken to the hospital. Id. Bonnie identified Singleton as the perpetrator and testified that the victim was 17 at the time of the crime. Id. at 103 and 107.
Carol Gartman, a nurse at Baptist Memorial Hospital, performed a rape kit on the victim. Id. at 111. She collected "[f]ingernail scraping, a dried secretion, pubic hair combings, pulled pubic hair, oral swab, vulvar swab, vaginal swab, rectal swab, pulled head hairs, and a blood sample." Id. Gartman identified a photograph of the rape kit, which was marked as Exhibit 2. Id. at 113-114. Deedra Hughes of the Mississippi Crime Lab, testified that the dried secretions recovered from the victim tested positive for the presence of seminal fluid. Id. at 142. The Columbus Police Department requested a DNA examination of the secretions, so they were sent to Orchid Cellmark for further testing. Id. at 12-143. Lacy Bowen with Orchid Cellmark testified that she performed DNA tests on the dried secretions and the epithelial fraction of the secretions matched the victim's DNA, while the sperm fraction matched Singleton's DNA.
SCR, Vol. 3, pg. 165.
Eli Perrigin, an officer with the Columbus Police Department., testified that on the day of the sexual battery, Singleton came to the police station. Officer Perrigin stated, "[w]hile I was standing out in the parking lot, Mr. Singleton came around — came out of nowhere, and he walked up to me and said he needed to talk to me, you know, and something about he wanted to press charges against his wife." Id. at 174. Perrigin testified that Singleton told him that the victim:
Id. at 175. He also testified Singleton said, "she done this to everyone else on 7th Avenue and something about he might as well go ahead and let her do it since she was a mother f****** slut. Excuse my language." Id. Officer Perrigin told Singleton to speak to Corporal Casey Freeman. Id. at 176. Officer Anita Ray testified that, when she arrived at the Columbus police station, she observed Singleton speaking with Perrigin. SCR, Vol. 2, pg. 122. In addition, Corporal Casey Freeman testified that Singleton came to the "information and receiving office where I was working that day and said he wanted to make an affidavit out or make — file some charges against his wife." SCR, Vol. 3, pg. 180. Corporal Freeman stated:
Id. at 181. Corporal Freeman further testified that Singleton said "something that was to the effect, I don't remember exactly the wording of it, but was that a man couldn't do much when a woman did that to him, and he finished and that it felt good." Id. at 182.
Singleton chose to testify. He claimed that he went to sleep and "[w]hen I woke and next thing I know I seen [the victim] had her leg on the couch coming down on my face, you know, with her naked body, and [the victim's sister] was in the door saying I'm going to tell mama; she going to leave you for good." Id. at 191. He stated that he then got dressed and went to the police station. Id.
Federal courts have no jurisdiction to review a habeas corpus claim "if the last state court to consider that claim expressly relied on a state ground for denial of relief that is both independent of the merits of the federal claim and an adequate basis for the court's decision." Roberts v. Thaler, 681 F.3d 597, 604 (5
A petitioner may overcome the procedural bar by showing cause for it — and actual prejudice from its application. To show cause, a petitioner must prove that an external impediment (one that could not be attributed to him) existed to prevent him from raising and discussing the claims as grounds for relief in state court. See United States v. Flores, 981 F.2d 231 (5
On post-conviction collateral review, the Mississippi Supreme Court found that Singleton's allegations in Grounds Two, Three, Four, Five, Six, Seven, and Eight were procedurally barred under Miss. Code Ann. § 99-39-21(1).
In addition, Singleton has not shown that any external impediment prevented him from bringing these claims in state court; likewise, he has not shown that actual prejudice would result from applying the bar. Further, as discussed below, Singleton's trial counsel and appellate counsel provided effective assistance in defending him; as such, Singleton may not rely on ineffective assistance of counsel to establish cause for his failure to raise these issues in a timely fashion. In failing to establish these two elements, Singleton has not overcome the state procedural bar, and the court cannot review Grounds Two, Three, Four, Five, Six, Seven, and Eight of the instant petition.
Neither will this court's decision to forego considering Singleton's claims result in a "fundamental miscarriage of justice," as he has failed to show, by clear and convincing evidence not available at trial, that "he did not commit the crime of conviction." Fairman v. Anderson, 188 F.3d 635, 644 (5
The Mississippi Supreme Court has already considered Grounds One and Nine on the merits and decided those issues against Singleton; hence, these claims are barred from habeas review by the Antiterrorism and Effective Death Penalty Act, 28 U.S.C. § 2254(d), unless they meet one of its two exceptions:
Id. (emphasis added). The first exception, subsection (d)(1), applies to questions of law. Morris v. Cain, 186 F.3d 581 (5
Under subsection (d)(1), a petitioner's claim merits habeas review if its prior adjudication "resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law." Id. (emphasis added). A state court's decision is contrary to federal law if it arrives at a conclusion opposite to that reached by the United States Supreme Court on a question of law, or if it decides a case differently from the Supreme Court on a set of "materially indistinguishable facts." Williams v. Taylor, 529 U.S. 362, 120 S.Ct. 1495, 1523 (2000). A state court's decision involves an unreasonable application of federal law if it identifies the correct governing principle but unreasonably (not just incorrectly) applies that principle to facts of the prisoner's case; this application of law to facts must be objectively unreasonable. Id. at 1521. As discussed below, the petitioner has not shown that the Mississippi Supreme Court unreasonably applied the law to the facts, or that the court's decision contradicted federal law. Accordingly, the exception in subsection (d)(1) does not apply to Grounds One and Nine of the petitioner's claim.
Nevertheless, under § 2254(d)(2) these grounds may still merit review if the facts to which the supreme court applied the law were determined unreasonably in light of the evidence presented. Because the supreme court is presumed to have determined the facts reasonably, it is the petitioner's burden to prove otherwise, and he must do so with clear and convincing evidence. Miller v. Johnson, 200 F.3d 274, 281 (5
Singleton has raised numerous allegations that trial and appellate counsel provided constitutionally ineffective assistance in defending him against the State's charges. The court must address claims of ineffective assistance of counsel under the two-prong test found in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). To prove that defense counsel was ineffective, the petitioner must show that counsel's performance was deficient and that the deficiency resulted in prejudice to her defense. Under the deficiency prong of the test, the petitioner must show that counsel made errors so serious that he was not functioning as the "counsel" guaranteed by the Sixth Amendment. Strickland, 466 U.S. at 687. The court must analyze counsel's actions based upon the circumstances at the time — and must not use the crystal clarity of hindsight. Lavernia v. Lynaugh, 845 F.2d 493, 498 (5
In Ground One (A), Singleton argues that his trial attorney should have challenged the indictment charging sexual battery because it did not contain the words "without her consent." As an initial matter, the sufficiency of a state indictment is not a matter for federal habeas corpus relief unless it can be shown that the indictment was so defective that the convicting court had no jurisdiction. Riley v. Cockrell, 339 F.3d 308, 313-14 (5
Singleton was convicted of sexual battery of his daughter under Miss. Code Ann. § 97-3-95(2), which provides:
Under this statute, lack of consent is not an element of the crime. Singleton was originally indicted for four counts of sexual abuse against his daughter. However, Counts I, II, and III were dismissed because "they are either duplications or merged into Count IV." SCR, Vol. 1, pg. 35. With regard to Count IV, the indictment charged, in pertinent part:
Id. at 5. On February 19, 2008, the trial court entered an order amending the indictment to state that Singleton was, in fact, the victim's father, "to reflect the truth of the victim's parentage." Id. at 34. Singleton's indictment tracked the language of the statute under which he was convicted. Put simply, Single's claim that the indictment was defective because it did not include the phrase "without her consent" is frivolous — as consent of the victim is not an element of the crime for which he was convicted. Counsel's decision not to raise such a challenge was sound, and attorneys are not required by the Sixth Amendment to file meritless motions. United States v. Gibson, 55 F.3d 173, 179 (5
Singleton argues that his attorney should have challenged Jury Instructions S-1 and S-2A. He complains that these instructions did not state that the sexual battery was without the victim's consent or contain the victim's date of birth. ECF doc. 4, pg. 30. A challenge to jury instructions will not warrant federal habeas corpus relief unless a petitioner establishes that an improper instruction rose to the level of a constitutional due process violation. Estelle v. McGuire, 502 U.S. 62, 71-71 (1991).
Jury Instruction S-1 provided:
SCR, Vol. 1, pg. 43. This instruction tracks the language of Miss. Code Ann. § 97-3-95(2), and, therefore, is a proper instruction on the applicable law. During the jury instruction conference, Singleton's trial counsel acknowledged the propriety of the instruction, noting that it, "[t]racks the statute. Your Honor, no objection." SCR, Vol. 3, pg. 214. Trial counsel wisely chose not to challenge a proper jury instruction. See Clark, 19 F. 3d at 966.
Jury Instruction 2-A, reads:
SCR, Vol. 1, pg. 44.
As Singleton was charged under Miss. Code Ann. § 97-3-95(2), consent of the victim was not an element of the crime. In addition, Instruction S-1 clearly informed the jury that, to return a verdict of guilty, they must find that the victim was under the age of 18 when the crime occurred. There is no requirement that the jury instructions contain a reference to the victim's birthday. Singleton's attorney provided effective assistance in deciding not to raise these meritless objections to the instructions. As such, Singleton has not shown that he was prejudiced by counsel's decision. Hence, the state court's finding that this claim failed to satisfy Strickland, supra, was neither contrary to, nor did it involve an unreasonable application of, clearly established federal law, as determined by the Supreme Court of the United States. Further, the decision was not based on an unreasonable determination of the facts in light of the evidence presented. For these reasons, Charlie Singleton is not entitled to habeas corpus relief based on his allegations in Ground One (B).
Singleton also argues that he had a "conflict of interest" with his trial attorney because the two "could not agree on anything." ECF doc. 4, pg. 30. "[P]rejudice is presumed only if the defendant demonstrates that counsel `actively represented conflicting interests' and that `an actual conflict of interest adversely affected his lawyer's performance.'" Smith v. State, 666 So.2d 810, 812-13 (Miss. 1995) (citing Cabello v. State, 524 So.2d 313, 316 (Miss.1988)). Indeed, "[i]n order to establish a violation of the Sixth Amendment, a defendant who raised no objection at trial must demonstrate that an actual conflict of interest adversely affected his lawyer's performance." Cuyler v. Sullivan, 446 U.S. 335, 348, 100 S.Ct. 1708, 1718, 64 L. Ed. 2d 333 (1980). In this case, Singleton has not established that there was an actual conflict of interest, only an that Singleton and his attorney had differences of opinion — an allegation that does not show that counsel had divided loyalties resulting in an actual conflict of interest. Moreover, Singleton certainly has not demonstrated that he was prejudiced by any alleged conflict of interest. As such, Singleton has not shown that counsel was ineffective due to a conflict of interest, and the state court's finding that this claim failed to show ineffective assistance of counsel was neither contrary to, nor did it involve an unreasonable application of, clearly established federal law, as determined by the Supreme Court of the United States. Further, the decision was not based on an unreasonable determination of the facts in light of the evidence. As such, Singleton is not entitled to habeas corpus relief based on the allegation in Ground One (C).
Singleton also alleges that his attorney should have sought a continuance so that the victim could be present at trial. At trial, the victim's mother testified that, prior to the trial, the victim had become unpredictable. SCR, Vol. 2, pg. 96. She testified that, "[the victim] was calm and collect up until 72 hours before this trial," after that, the victim disappeared and the family was unable to find her. Id. As a result, the victim was not present at trial.
Lilly v. Virginia, 527 U.S. 116, 123-24, 119 S.Ct. 1887, 144 L.Ed.2d 117 (1999). However, in this case, the victim did not testify against Singleton.
On the contrary, the victim's sister testified that she witnessed Singleton's sexual battery of the victim. SCR, Vol. 1, pp. 82-83. The victim's mother testified that she was notified of the abuse and called 911. Id. at 101. Further, there was testimony that, according to DNA testing, the semen collected from the victim's body in the rape kit belonged to Singleton. SCR, Vol. 3, pg. 164. In addition, no witness testified regarding statements by the victim. As such, Singleton was able to confront all the witnesses against him, and, with regard to the victim, there was no Confrontation Clause violation, as she was not a witness against him. Moreover, there is no indication in the record that anyone knew how to locate the victim at the time of trial, and Singleton has not demonstrated that any continuances would have allowed them to find the victim and bring her to trial. Finally, counsel's decision not to press for the victim's presence at trial was likely a calculated one. The victim's mother testified that the victim was extremely vulnerable — both mentally retarded and schizophrenic — a combination likely to evoke tremendous sympathy from the jury. Her absence from trial thus probably helped Singleton. For these reasons, trial counsel cannot be considered deficient in choosing not to seek a continuance to locate the victim. Further, there is more than a "reasonable argument that counsel satisfied Strickland's deferential standard" under Harrington, supra. As such, the state court's holding that this claim failed to satisfy Strickland was neither contrary to, nor did it involve an unreasonable application of, clearly established federal law, as determined by the Supreme Court of the United States. In addition, the decision was not based on an unreasonable determination of the facts in light of the evidence. As such, Singleton is not entitled to habeas corpus relief as to the allegations raised in Ground One (D) of the petition.
Singleton argues in Ground One (E) that trial counsel should have objected when he was sentenced to post-release supervision because he was a prior convicted felon. Singleton argues that, as a prior convicted felon, he was not eligible for post-release supervision. He was sentenced to a term of fifteen years in the custody of the Mississippi Department of Corrections, with five years of postrelease supervision. Id. at 85-87. To support his position, Singleton relies upon Miss. Code Ann. § 47-7-33, which reads in part:
Singleton did not, however, receive a suspended sentence; he received post-release supervision, which is governed by Miss. Code Ann. § 47-7-34. That statute reads, in relevant part:
"Under Mississippi Code Annotated Section 47-7-34(1) convicted felons are eligible to receive postrelease supervision." Hunt v. State, 874 So.2d 448, 451 (Miss. Ct. App. 2004). Singleton also bases his argument upon Goss v. State, 721 So.2d 144 (Miss. 1998), but that case was overruled by Johnson v. State, 925 So.2d 86 (Miss. 2006). In Johnson, the Court held:
Johnson, 925 So. 2d at 105.
Singleton's sentence was therefore proper under Mississippi law, and any objections to the sentence on this basis would have been without merit. As discussed above, the court will not find counsel deficient because he declined to interpose a meritless objection. See Clark, supra. Therefore, the Mississippi Supreme Court's holding was neither contrary to, nor did it involve an unreasonable application of federal law. In addition, the decision was not based on an unreasonable determination of the facts in light of the evidence. Singleton's request for habeas corpus relief on this ground must therefore be denied.
Singleton also argues that counsel was ineffective because he did not object when the court did not advise Singleton of the maximum and minimum possible sentence for sexual battery. Under Mississippi Uniform Circuit and County Court Rule 8.04(A)(4)(b), when a criminal defendant wishes to
Singleton complains that he was not brought to trial within 270 days of arraignment as required by Miss. Code Ann. § 99-17-1, which provides, "[u]nless good cause be shown, and a continuance duly granted by the court, all offenses for which indictments are presented to the court shall be tried no later than two hundred seventy (270) days after the accused has been arraigned." There is also a federal a constitutional right to a speedy trial, which Singleton invoked by reference to the 5
An analysis of the Barker factors reveals that Singleton is not entitled to habeas corpus relief on this ground because the delays prior to his trial are largely attributable to Singleton himself.
This factor serves as a "triggering mechanism." Id. at 530. "Until there is some delay which is presumptively prejudicial, there is no necessity for inquiry into the other factors that go into the balance. Nevertheless, because of the imprecision of the right to speedy trial, the length of delay is necessarily dependent upon the peculiar circumstances of the case." Id. "The relevant period of delay is that following accusation, either arrest or indictment, whichever occurs first." Robinson v. Whitley, 2 F.3d 562, 568 (5
In this case, Singleton was indicted on August 4, 2005. SCR, Vol.1, pg. 5. A warrant was issued for his arrest that same day. Id. at 7. The warrant was reissued on September 26, 2005, and entered into the National Crime Information Center (NCIC) database on October 3, 2005. Id. at 8. Singleton was arrested on May 30, 2007. Id. The record reflects that Singleton had to be extradited from Tennessee. Id. at 16. His trial commenced on February 19, 2008, more than a year after his indictment; as such, the court must weigh the remaining Barker factors. SCR, Vol. 2, pg. 1.
It appears from the record that, at the time Singleton was indicted (August 4, 2005), he was living in Memphis, Tennessee could not initially be located. On May 31, 2007, Singleton entered a plea of not guilty, and his trial was set for August 27, 2007. SCR, Vol. 1, pg. 17. On August 27, 2007, an order of continuance was entered, noting that the defense was conducting an investigation, that the "defendant was picked up one week before trial," and that trial was set for November 27, 2007. Id. at 18. On November 27, 2007, Singleton filed a "Demand for Speedy Trial." Id. at 22. That same day, the trial court entered an order noting that trial was set for November 27, 2007, but another trial went forward, instead. Id. at 23. Therefore, the trial court set the "case for trial on December 3, 2007, in first place." Id. On December 3, 2007, the trial court entered an order resetting the case for December 5, 2007, because the State was unable to "attain necessary, material witnesses for the trial of this matter." Id. at 24. On December 4, 2007, the trial court reset the trial to February 19, 2008, because "Defendant's counsel has a bad cold and is hoarse and unable to effectively try the case." Id. at 25. Singleton himself signed that order to indicate that he agreed to the continuance. Id. On December 7, 2007, the trial court entered an order finding:
Id. at 26. Singleton's trial began on February 19, 2008.
The court finds that the vast majority of the delay in this case can be attributed to the defense. From August of 2005 to May of 2007, it appears that Singleton could not be located. Once he was arrested, the trial date was promptly set, but was continued at the request of the defense. Then, the trial was continued a short time due to the court's docket. A two-day delay occurred when the prosecution requested that the State be permitted to obtain material witnesses. Then, defense counsel and Singleton himself agreed to continue the case because defense counsel was ill.
The third consideration under Barker is whether the defendant effectively asserted his right to a speedy trial. As noted above, on November 27, 2007, Singleton filed a "Demand for Speedy Trial." Id. at 22.
The final factor the court must consider under Barker is prejudice to the accused. The interests the speedy trial right protects are: (1) prevention of oppressive pretrial incarceration, (2) an effort to minimize anxiety and concern of the accused, and (3) limiting the possibility that the defense will be impaired. Barker, 407 U.S. at 532. The "most serious" of these rights is the last, "because the inability of a defendant adequately to prepare his case skews the fairness of the entire system." Id. In this case, Singleton has not shown that he suffered any prejudice at all from the delay. Though Singleton was indicted in 2005, he was not arrested and held on bond until May of 2007. As such, he did not suffer oppressive incarceration during that time. The court denied a reduction in bond because Singleton stood accused of four serious felonies, and the majority of the delays thereafter can be attributed to Singleton. For this reason, the court holds that the State minimized the time during which Singleton would experience anxiety and concern. Finally, Singleton has not alleged any facts for the court to conclude that his defense was impaired by the delay.
For these reasons, the court cannot hold that trial counsel was deficient with regard to the speedy trial issue. Counsel made a speedy trial demand, and, as discussed above, Singleton has not proved that his speedy trial rights were violated. Singleton thus suffered no prejudice in this regard. He has thus not satisfied Strickland's standard to prove ineffective assistance of counsel. The Mississippi Supreme Court's holding regarding ineffective assistance of counsel was thus neither contrary to, nor did it involve an unreasonable application of federal law. Further, the decision was not based on an unreasonable determination of the facts in light of the evidence. Singleton's claim for habeas corpus relief on this ground will therefore be denied.
The court found Singleton to be indigent before trial and appointed Michael Farrow, Esq. as his attorney. SCR, Vol. 1., pg. 14. Following Singleton's conviction and sentence, Farrow filed a "Notice of Appeal" on Singleton's behalf. Exhibit D to the State's Response. Then, Farrow filed a motion to withdraw and to substitute the Office of Indigent Appeals as Singleton's appellate counsel. Exhibit E to the State's Response. On June 18, 2008, the Mississippi Court of Appeals entered an order allowing Farrow to withdraw and appointing the Office of Indigent Appeals to represent Singleton during his appeal. Exhibit F to the State's Response. On August 5, 2008, Attorney Brenda Jackson Patterson filed an entry of appearance in Singleton's appeal. Exhibit G to the State's Response. Patterson filed Singleton's appellate brief and represented him on appeal. "An indigent defendant has no right to choose his counsel." Montejo v. Louisiana, 556 U.S. 778, 784, 129 S.Ct. 2079, 2084, 173 L. Ed. 2d 955 (2009). Singleton was represented by appointed appellate counsel; as such, he has not shown that he was deprived of a constitutional right, and he is not entitled to federal habeas corpus relief on this ground. The Mississippi Supreme Court's holding that this claim failed to satisfy Strickland was neither contrary to, nor did it involve an unreasonable application of federal law. In addition, the decision was not based on an unreasonable determination of the facts in light of the evidence. As such, Singleton's allegations in Ground One (H) of the petition will be denied.
Though Singleton raises the bare allegation that counsel failed to call character witnesses, he has not identified which witnesses he wished to call — or what their testimony might have been, if called. These bare allegations are insufficient to sustain a request for habeas corpus relief for ineffective assistance of counsel:
Miller v. Johnson, 200 F.3d 274, 282 (5
Singleton's counsel did a commendable job in representing him at trial, despite overwhelming evidence of his guilt, including Singleton's own highly incriminating statements to law enforcement officers. Clearly there is more than a "reasonable argument that counsel satisfied Strickland's deferential standard" under Harrington, supra. For this reason, the Mississippi Supreme Court's rejection of this claim of ineffective assistance of counsel was neither contrary to, nor did it involve an unreasonable application of federal law. Neither was the decision based upon an unreasonable determination of the facts in light of the evidence. Singleton's request for habeas corpus relief on this ground will, therefore, be denied.
In this ground, Singleton alleges that counsel failed to conduct an adequate investigation; however, he does not specify what further investigation counsel should have conducted — or how such investigation would have benefitted Singleton's defense. Such "conclusory allegations do not raise a constitutional issue in a habeas proceeding." Ross v. Estelle, 694 F.2d 1008, 1012 (5
In Ground Nine, Singleton argues that the evidence was insufficient to sustain his conviction for sexual battery because the State failed to show that the victim did not give her consent. ECF doc. 3, pg. 3. As set forth above, however, lack of consent is not an element of the crime of sexual battery for which Singleton was convicted. Further, Singleton did not raise this issue on direct appeal; as such, the issue was procedurally barred on post-conviction collateral review, as discussed above. On direct appeal, Singleton did, however, challenge the sufficiency of the evidence — on the basis that the State put on inadequate evidence of penetration. The court has liberally construed Singleton's pro se petition, as a challenge to the evidence regarding proof of penetration. The Mississippi Court of Appeals held:
Singleton v. State, 16 So.3d 742, 745 (Miss. Ct. App. 2009). As these facts show, the Mississippi Court of Appeals' decision was amply supported in the record. As such, state court's decision that this ground for relief was without merit was neither contrary to, nor did it involve an unreasonable application of, clearly established federal law, as determined by the Supreme Court of the United States. Further, the decision was not based on an unreasonable determination of the facts in light of the evidence presented. As such, Singleton's request for habeas corpus relief on this ground will be denied.
Finally, Singleton argues that he is entitled to federal habeas corpus relief based upon cumulative error. Cumulative error has can be an independent basis for habeas corpus relief, but only when "(1) the individual errors involved matters of constitutional dimensions rather than mere violations of state law; (2) the errors were not procedurally defaulted for habeas purposes; and (3) the errors `so infected the entire trial that the resulting conviction violates due process.'" Westley v. Johnson, 83 F.3d 714, 726 (5
In sum, none of Singleton's claims for habeas corpus relief has merit, and the instant petition for a writ of habeas corpus will be denied. A final judgment consistent with this memorandum opinion will issue today.
