Brent v. Cain

1

JAMES LEE BRENT PETITIONER v. BURL CAIN RESPONDENT

Civil Action No. 3:22-cv-192-CWR-MTP

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

April 18, 2023

REPORT AND RECOMMENDATION

MICHAEL T. PARKER, UNITED STATES MAGISTRATE JUDGE.

BEFORE THE COURT is the Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 [1] filed by James Lee Brent (“Brent”). After careful consideration of the parties' submissions and the applicable law, the undersigned recommends that the Petition be denied.

FACTS AND PROCEDURAL HISTORY

Brent was initially convicted of armed robbery, kidnapping, and possession of a firearm on August 24, 2016, in the Circuit Court of Madison County, Mississippi. ([22-6] at 110). On appeal, the Mississippi Court of Appeals reversed Brent's conviction for possession of a firearm by a felon and rendered a verdict in Brent's favor on that charge. See Brent v. State, 247 So.3d 367 (Miss. Ct. App. 2018). The court of appeals also granted Brent a new trial on the armed robbery and kidnapping charges.

On December 4, 2018, a jury convicted Brent of armed robbery and kidnapping in the Madison County Circuit Court. The trial court sentenced Brent to serve two concurrent life sentences in the custody of the Mississippi Department of Corrections as a violent habitual offender under Mississippi Code Annotated § 99-19-83. The instant habeas petition is based on Brent's conviction after the new trial on the armed robbery and kidnapping charges.

Brent appealed his sentences with the assistance of counsel. The Mississippi Supreme Court summarized the facts underlying Brent's convictions as follows:

Rayshaun Banks worked the third shirt as a forklift operator at a factory in Canton, Mississippi. At approximately 3:00 a.m. on November 12, 2015, Banks took his lunch break and walked outside to his 2008 Chrysler Sebring sedan. Upon reaching his car, Banks noticed that his driver-side rear tire was low and decided to drive to the Shell gas station in Canton to add air to it.

After getting some quarters from inside the gas station Banks bent down and began adding air to the tire. A man [(Brent)] approached Banks from behind, undetected, and pressed something “[l]ike the barrel of a gun” against the back of his head. Banks told Brent that he did not have any money. Brent then ordered Banks into the driver's seat and told Banks to drive Brent to Jackson. Banks complied with Brent's orders because Banks thought Brent had a gun. Banks explained that he feared for his life and believed that Brent was going to shoot him.

As the two were headed south on I-55 toward Jackson, Banks told Brent that he could get Brent some money out of the bank. Brent then told Banks to take the Gluckstadt exit and go to an ATM. Banks complied. After pulling up to an ATM Banks explained to Brent that Banks needed to step out of the car to retrieve his wallet. When Banks stepped out of his car, he immediately ran to a nearby Sonic restaurant and told the Sonic employee to call the police. Banks then noticed a sheriff's deputy at the Exxon nearby and ran to the deputy for help. At the same time, Brent was spotted driving past the Exxon in Banks's car. Banks was then taken to the Canton Police Department and provided a statement about what happened.

Later that same morning, Investigator Terence Ware with the Canton Police Department contacted Banks and asked for Banks to come to the department and speak with him. While Banks was explaining to Investigator Ware what happened, Investigator Ware received a call from the Jackson Police Department stating that they had Brent and Banks's car in custody.

After Brent had signed an acknowledgment and waiver of his Miranda rights, Investigator Ware interviewed Brent that afternoon. Brent admitted that he took Banks's car without permission, but he denied ever having a gun. Instead Brent claims that he had placed two fingers behind Banks's head to imitate a gun. Brent demonstrated this to Investigator Ware. When asked why Banks ran and left Brent sitting in the car at the ATM, Brent responded that he guessed Banks got frightened. Neither Canton police nor Jackson police ever recovered a gun.

Brent v. State, 296 So.3d 42, 45-47 (Miss. 2020), reh'gdenied, June 4, 2020 (Cause No. 2019-KA-00095-SCT).

On July 12, 2019, appointed counsel for Brent filed a Lindsey^[1]brief, stating that no arguable issues exist in the record. ([22-7] ¶ 1-10). Brent also filed a pro se supplemental brief raising four issues for review (as stated by Petitioner):

I. Whether the State proved each and every essential element of the crimes charged in the indictment brought against Appellant beyond a reasonable doubt.

II. Whether Appellant's fundamental protected right under the Double Jeopardy Clause forbids a second trial for the purpose of affording the prosecution another opportunity to supply evidence which it failed to muster in the first proceeding.

III. Whether the trial court “improperly” instructed the jury on an “overt act” when in fact Appellant was not charged with said “act” in the indictment found by the grand jury[,] constructively amending Appellant's indictment to conform to the proof that the prosecution attempted to adduce at trial changing as it did the offense charged into another crime not charged nor found by the grand jury.

IV. Whether the prosecution failed to prove beyond a reasonable doubt that Appellant had been sentenced to and had served separate terms of one year or more on each of his prior convictions under §99-19-83 making his conviction as a habitual offender constitutionally illegal.

([22-7] at 16). The Mississippi Supreme Court unanimously affirmed Brent's convictions and sentences in a published opinion. See Brent v. State, 296 So.3d 42, 45-47 (Miss. 2020), reh'g denied, June 4, 2020 (Cause No. 2019-KA-00095-SCT).

Brent then filed an Application for Leave to Proceed in the Trial Court, in which he asserted the following grounds (as stated by Petitioner):

I. Whether the indictment is fatally defective by law and therefore void.

II. Whether the jury was sworn.

III. Whether the trial judge abused his discretion by failing to give proper Sharplin instruction; improperly vouched for State's evidence[;] and invaded the providence of the jury.

IV. Whether [the] State improperly offered lesser-included offense instruction against objection from defense.

V. Whether [the] trial judge abused his discretion by granting lesser-included offense instruction over objection from defense.

VI. Whether trial counsel was ineffective.

a. Failure to request both a circumstantial instruction and a two-theory instruction as to the armed robbery charge.

b. Failure to object to defective indictment.

c. Failure to object to jury instructions that were disjunctive and constructively amended the indictment.

d. Failure to raise the “insufficiency of the elements” allegedly added to the jury instruction and in the “disjunctive indictment” for which Brent argues that no evidence was presented to the jury.

VII. Whether appellate counsel was ineffective.

a. Failure to raise issue on appeal regarding motion for mistrial due to flawed Sharplin instruction.

b. Failure to address on appeal and argue ineffective assistance of trial counsel.

c. Failure to argue on appeal the four enumerated issues [of ineffective assistance of trial counsel] in Ground No. 6.

VIII. Whether arm[ed] robbery statute was unconstitutionally applied to Brent.

([22-8] at 18-24). On May 27, 2021, the Mississippi Supreme Court issued an order denying Brent's application. ([22-8] at 114). Brent then filed a “Petition for Mandamus” which the Court construed as a request for reconsideration of his application for leave to proceed in the trial court.

The Court denied his request and dismissed the petition. ([21-3]).

On April 13, 2022, Brent filed the instant Petition for Writ of Habeas Corpus [1]. He raised the following issues (as stated by Petitioner):

I. Whether the indictment is fatally defective, by law, and is therefore void.

II. Jury not sworn.

III. Trial judge abused discretion for improper Sharplin instruction.

IV. State improperly offered lesser-included offense instruction against objection of defense.

V. Trial judge abused his discretion by granting lesser-included offense instruction over objection from the defense.

VI. Ineffective trial counsel.

a. Failure to request both a circumstantial instruction and a two-theory instruction as to the armed robbery charge.

b. Failure to object to defective indictment.

c. Failure to object to jury instructions that were disjunctive and constructively amended the indictment.

d. Failure to raise the “insufficiency of the elements” allegedly added to the jury instruction and in the “disjunctive indictment” for which Brent argues that no evidence was presented to the jury.

VII. Ineffective appellate counsel.

a. Failure to raise issue on appeal regarding motion for mistrial due to flawed Sharplin instruction.

b. Failure to address on appeal and argue ineffective assistance of trial counsel.

c. Failure to argue on appeal the four enumerated issues in Ground No. 6.

VIII. The arm[ed] robbery statute was unconstitutionally applied to Brent.

([1]; [2] at 1-20). A Response [21] was filed on July 11, 2022, along with the State Court Record [22]. Brent filed his Reply [25], and this matter is now ripe for review.

ANALYSIS

The standard of review for habeas claims to be applied by this Court is set forth in 28 U.S.C. § 2254(d), which provides that a federal court may not grant habeas relief unless the state court's adjudication of the claims “(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of...