DEBRA M. BROWN, District Judge.
Justin James' 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. #11.
On September 20, 2019, Justin James was convicted by a jury of one count of armed robbery (Count One), one count of manslaughter (Count Two), two counts of aggravated assault (Counts Three and Four), and one count of conspiracy to commit armed robbery (Count Five). Doc. #9-7 at PageID #485. James was sentenced to twenty years each for the convictions on Counts One through Four, and five years for the conviction on Count Five. Id. at #486. Under the terms of James' judgment, the sentences on Count Two and Count Three run concurrently with each other; the sentence on Count Four runs consecutively with the sentences on Counts Two and Three; the sentence on Count One runs consecutively with the sentences on Counts Two through Four; and the sentence on Count Five runs concurrently with the other sentences. Id.
James directly appealed his convictions and sentence on five grounds:
James v. State, 146 So.3d 985, 991 (Miss. Ct. App. 2014). The Mississippi Court of Appeals rejected each enumeration of error and affirmed the lower court. Id. Certiorari was denied. James v. State, 146 So.3d 981 (Miss. 2014).
James later sought post-conviction relief on the ground that Barry Love, one of the witnesses during his trial, recanted his testimony. James v. State, 220 So.3d 989 (Miss. Ct. App. 2016). James' petition was denied in the trial court and affirmed on appeal. Id. at 990-91. Certiorari was also denied. James v. State, 220 So.3d 979 (Miss. 2017).
On November 30, 2017, James filed in the United States District Court for the Northern District of Mississippi an amended
On August 14, 2018, Judge Virden issued a Report and Recommendation ("R&R") recommending that James' petition be denied. Doc. #11. On September 6, 2018,
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)).
James' response to the R&R challenges only Judge Virden's conclusions as to Ground Two and Ground Four. See Doc. #13. However, before addressing the merits of these objections, it is important to clarify the appropriate standard of review for James' petition.
Where a petitioner's claims were considered on the merits in state court, habeas relief is only appropriate if the state court's decision:
28 U.S.C. § 2254(d).
The respondents argued, and Judge Virden agreed, that § 2254(d)'s deferential standard applies here. Doc. #11 at 10. However, there is no indication the federal claims at issue here were raised in state court, much less addressed on the merits by any state court decision. Though James' direct appeal brief cited a general federal standard regarding jury instructions, his arguments regarding jury instructions were confined exclusively to the application of state law. See Doc. #9-19 at PageID ## 2023-28. James' post-conviction relief briefing contains no reference to federal law at all. See Doc. #9-3. Federal law was not discussed in either Mississippi Court of Appeals decision. Under these circumstances, the Court concludes James' federal claims were not adjudicated on the merits in state court. See Johnson v. Williams, 568 U.S. 289, 298 (2013) ("[A] state court may not regard a fleeting reference to a provision of the Federal Constitution or federal precedent as sufficient to raise a separate federal claim."). To the extent the R&R held otherwise, this was error.
At his trial, James proffered the following instruction, labeled as D-7:
Doc. #9-7 at PageID ##458-60.
The trial court rejected D-7 in favor of S-3, which stated:
Id. at PageID # 443.
James' amended petition is cursory and offers little to no authority on each asserted ground. See Doc. #4. His traverse is little better. See Doc. #10. He simply argues in conclusory fashion that his proposed "accomplice instruction" should have been given by the trial judge. Id. at ¶ 5. Judge Virden found the accomplice instruction was properly rejected because Love's testimony that James participated in the relevant crimes was corroborated by non-accomplice evidence and because an accomplice instruction was given, "albeit in a shortened state." Doc. #11 at 17. James objects to the R&R on the grounds that the allegedly corroborating evidence was not corroborating. Doc. #13 at 1-2. He does not address the fact that an accomplice instruction was given.
Galvan v. Cockrell, 293 F.3d 760, 764-65 (5th Cir. 2002) (citations, alterations and quotation marks omitted). Under this standard, a "substantively correct instruction" does not violate the federal constitution. Id. at 765. Even a substantively incorrect instruction will not justify habeas relief "unless there is more than a mere reasonable possibility that it contributed to the verdict." Id. Put differently, a petitioner must show both that an instruction was deficient (or that the failure to give an instruction was deficient) and that there is more than a mere reasonable possibility that the deficiency contributed to the verdict. See generally Maier v. Smith, 912 F.3d 1064, 1072-73 (7th Cir. 2019) ("Maier must show both that the instruction was deficient and that `there was a reasonable likelihood that the jury applied the instruction in a way that relieved the State of its burden of proving every element of the crime beyond a reasonable doubt.'") (quoting Waddington v. Sarausad, 555 U.S. 179, 191 (2009)).
"Clear law in the State of Mississippi is that the jury is to regard the testimony of coconspirators with great caution and suspicion." Williams v. State, 32 So.3d 486, 490 (Miss. 2010) (quotation marks omitted). Consistent with this law, an accomplice jury instruction must be given when (1) "the witness was in fact an accomplice" and (2) the testimony is not otherwise corroborated. Id. The Mississippi Supreme Court recently clarified that when an accomplice instruction is warranted, the trial court should give the following instruction:
Jones v. State, ___ So. 3d ___, No. 2018-KA-01060-SCT, 2019 WL 4198794, at *7 (Miss. Sep. 5, 2019). However, even before this clarification, Mississippi law was clear that an accomplice instruction is deficient when it replaces the word "suspicion" with the word "care," as was the case here. Smith v. State, 907 So.2d 292, 297 (Miss. 2005). Accordingly, if an accomplice instruction was required, the trial judge's refusal to give D-7 (or an otherwise proper accomplice instruction) was legally deficient under Mississippi law.
The Mississippi Court of Appeals, in James' direct appeal, found an accomplice instruction was unnecessary because Love's testimony was corroborated by other evidence. See James, 146 So. 3d at 993-94. Corroboration requires evidence supporting the accomplice's guilt to the specific crimes. See Williams, 32 So. 3d at 491 ("[T]he testimony that must be corroborated is the testimony tying the defendant on trial to the crime ...."); Carson v. State, 212 So.3d 22, 28 (Miss. 2016) (post-crime confession to involvement in robbery not corroboration of accomplice testimony identifying defendant as shooter). Such corroboration need only be "slight[.]" Grossley v. State, 127 So.3d 1143, 1150 (Miss. Ct. App. 2013).
Here, the Mississippi Court of Appeals found Love's testimony connecting James to the armed robbery at issue was specifically corroborated because Love testified that (1) the robbers used James' white Cadillac to commit the crime, and a separate witness saw a white Cadillac near the location of the robbery on the night in question; (2) one of the robbers carried a Tec-9 handgun, and a 9mm round was found in James' car; and (3) the robbers made numerous phone calls amongst themselves on the night in question, and subpoenaed phone records showed calls between the robbers. James, 146 So. 3d at 993-95. Judge Virden agreed with this conclusion.
In his objections, James argues there was no corroboration because:
Doc. #13 at 2.
As an initial matter, James has pointed to nothing in the record which supports his factual contention regarding the location of the cellular tower which provided the evidence of the allegedly corroborating phone call. Even if he had, James has offered no evidence or argument as to why the tower being "not in the city limits" renders the call not corroborating. Id. James' remaining arguments seem to rely on an assumption that corroboration requires evidence definitively supporting the accomplice's testimony. This is of course not the standard, which requires only "slight" corroboration. See Stribling v. State, 81 So.3d 1155, 1161 (Miss. Ct. App. 2011) (testimony of drug sale corroborated by video showing transfer of "three or four small objects"). Love's account of the robbery and James' involvement, which includes identification of the car used, phone calls between the alleged robbers, and possession of a 9-mm firearm, is indisputably corroborated by the non-accomplice evidence identified by the Mississippi Court of Appeals and Judge Virden. Accordingly, the Court concludes that an accomplice instruction was not required and that James' contention to the contrary is without merit.
Sometime after James' convictions, Love, through an affidavit, recanted his testimony linking James to the crimes. See Doc. #8-2. This affidavit formed the basis of James' petition for post-conviction relief. Id. Following an evidentiary hearing at which Love testified, the trial court, noting that Love's new testimony was uncorroborated and that his initial testimony was corroborated by other evidence, found "the recanted testimony to be totally fabricated and not true." Doc. #9-1 at 29. Accordingly, the trial court denied post-conviction relief. Id. The Mississippi Court of Appeals affirmed these findings. James, 220 So. 3d at 990.
James' amended petition challenges the rejection of his post-conviction petition but offers no specific argument in this regard. His traverse argues post-conviction relief was warranted because:
Doc. #10 at 7.
Judge Virden, after reciting the substance of Love's affidavit and hearing testimony, and noting the presumption of correctness afforded state court findings of fact and credibility, rejected James' argument because "other than Petitioner's fanciful and frankly unpersuasive affidavit from his co-defendant ... Petitioner offers no evidence that would rebut the presumption that the trial court's findings are correct or support a finding contrary to that of the circuit court." Doc. #11 at 26-27. In his objections, James argues:
Doc. #13 at 2-3. Based on these arguments, James contends "the state court's decision was based on an unreasonable determination of the facts in light of the evidence" and "result[ed] in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law...." Id. at 3.
"To establish a due process violation based on the government's use of false or misleading testimony, [a petitioner] must show that (1) the testimony in question was actually false; (2) the testimony was material; and (3) the prosecution had knowledge that the testimony was false." United States v. Webster, 392 F.3d 787, 801 (5th Cir. 2004). Even assuming Love's recantation could be deemed credible, James has offered no evidence or argument that the State knew the testimony was false. Accordingly, he is not entitled to habeas relief.
The Court, cognizant of the misapplied deferential standard, has reviewed the portions of the R&R to which James has not objected and has found no clear error in the ultimate conclusions. Such portions of the R&R, which rejected James' remaining grounds for habeas relief and denied an evidentiary hearing, are adopted as the order of the Court.
Rule 11 of the Rules Governing § 2254 Proceedings for the United States District Courts requires a court to "issue or deny a certificate of appealability when it enters a final order adverse to the applicant." A certificate of appealability ("COA") will issue "only if the applicant has made a substantial showing of the denial of a constitutional right." 28 U.S.C. § 2253(c)(2). For cases rejected on their merits, a movant "must demonstrate that reasonable jurists would find the district court's assessment of the constitutional claims debatable or wrong" to warrant a COA. Slack v. McDaniel, 529 U.S. 473, 484 (2000). To obtain a COA on a claim rejected on procedural grounds, a movant must demonstrate "that jurists of reason would find it debatable whether the petition states a valid claim of the denial of a constitutional right and that jurists of reason would find it debatable whether the district court was correct in its procedural ruling." Id. at 484. Based on the Slack criteria, the Court finds that a COA should not issue in this case.
The Report and Recommendation [11] is
