Gunn v. Sparkman

TIMOTHY GUNN (# 96721) PETITIONER v. EMMITT SPARKMAN, ET AL. RESPONDENTS

No. 2:11CV218-MPM-SAA

UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF MISSISSIPPI DELTA DIVISION

December 8, 2014

MEMORANDUM OPINION

This matter comes before the court on the pro se petition of Timothy Gunn for a writ of habeas corpus under 28 U.S.C. § 2254. The State has responded to the petition, and Gunn has filed a traverse. The matter is ripe for resolution. For the reasons set forth below, the instant petition for a writ of habeas corpus will be denied.

Facts and Procedural Posture

The petitioner, Timothy Gunn, is in the custody of the Mississippi Department of Corrections and is currently housed at the Mississippi State Penitentiary in Parchman, Mississippi. Gunn was convicted of grand larceny in the Circuit Court of Bolivar County, Mississippi. On November 18, 2009, he was sentenced as a habitual offender under Miss. Code Ann. § 99-19-81 to serve ten years in the custody of the Mississippi Department of Corrections ("MDOC"). State Court Record (hereinafter "SCR"), Vol. 1, p. 43-44.

Gunn appealed his conviction and sentence in the Mississippi Supreme Court, raising the following issues (as stated by counsel):

Issue 1. The trial court erred in denying defense counsel's motion for a mistrial when the state impermissibly commented on Appellant's exercise of his post-Miranda right to remain silent.

Issue 2. The evidence was [not] sufficient to sustain the jury's verdict of guilty to the charge of grand larceny.

Issue 3. The photo line-up by which Appellant was originally identified was overly suggestive so as to taint the in court identification.

On January 27, 2011, the Mississippi Supreme Court affirmed the judgment of the Circuit Court. Gunn v. State, 56 So.3d 568 (Miss. 2011) reh'g denied March 31, 2011 (Cause No. 2009-KA-01901-SCT).

On July 21, 2011, Gunn filed an Application to proceed in the trial court with a Motion for Post-Conviction Relief in the Mississippi Supreme Court. In that application Gunn raised the same three issues now raised in his federal petition for a writ of habeas corpus. On September 8, 2011, the Mississippi Supreme Court filed an order denying the application. Miscellaneous Pleadings, Cause No. 2011-M-01054.

In the instant petition for a writ of habeas corpus Gunn raises the following issues (pro se):

Ground One. Timothy Gunn's sentence is illegal and in violation of the 5^thand 14^th Amendment to the United States Constitution and Article 3, § 14 and § 26, of the Constitution of the State of Mississippi.

Ground Two. Petitioner, Timothy Gunn, was denied due process of law and effective assistance of counsel, in violation of the 5^th and sixth amendments to the United States Constitution, where the state's evidence never proved grand larceny under elements required by law and where state was prepared to admit this, even after the jury verdict, if Gunn would plead guilty to a misdemeanor offense. Counsel was ineffective in failing to challenge the state's evidence in the trial court and to bring this point in the direct appeal.

Ground Three. Petitioner Timothy Gunn was denied effective assistance of counsel, in violation of the 5^th and 6^th Amendments to the United States Constitution, where counsel, in his closing arguments, made a prejudicial statement to the jury, against the facts provided to counsel by Gunn, that Gunn was the person in the video which the prosecution offered as evidence, thus, thereby telling the jury that Timothy Gunn was guilty.

Grounds Reviewed on the Merits in State Court

The Mississippi Supreme Court has already considered Grounds One, Two, and Three on the merits and decided those issues against the petitioner; hence, these claims are barred from habeas corpus review by the Antiterrorism and Effective Death Penalty Act, 28 U.S.C. § 2254(d), unless they meet one of its two exceptions:

(d) An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim-

(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 the United States; or

(2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.

Id. (emphasis added). The first exception, subsection (d)(1), applies to questions of law. Morris v. Cain, 186 F.3d 581 (5^th Cir. 2000). The second exception, subsection (d)(2), applies to questions of fact. Lockhart v. Johnson, 104 F.3d 54, 57 (5^th Cir. 1997). Since the petitioner's claims challenge both the application of law and the finding of fact, this court must consider the exceptions in both subsections.

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, 120S.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, Two, or Three of the instant petition.

Nevertheless, under § 2254(d)(2) these grounds may still merit review if those 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^th Cir. 2000); 28 U.S.C. § 2254(e)(1). As discussed below, the petitioner has failed to meet this burden; as such, he cannot use subsection (d)(2) to move these claims beyond § 2254(d), which bars from habeas corpus review issues already decided on the merits.

Ground One: Insufficiency of the Evidence

In Ground One, Gunn challenges the sufficiency of the evidence to support his grand larceny conviction. A federal court may consider a challenge to the sufficiency of the evidence presented in state court, but only where the evidence, viewed in the light most favorable to the prosecution, is such that no rational factfinder could have found the essential elements of the crime beyond a reasonable doubt. See Jackson v. Virginia, 443 U.S. 307 (1979). A review of the record, however, reveals more than sufficient evidence to support the jury's verdict in this case.

At trial, Fred King testified that he was working at 21^st Century Cleaners in Cleveland,Mississippi, when he saw a black male across the street walking around a truck parked at the Moose Lodge. SCR, Vol. 2, p. 38. The man, who was wearing a red shirt and khaki pants, lifted up the top of the tool box in the bed of the truck and removed a black and gold bag. SCR, Vol. 2, p. 38, 48. At some point during King's observation, he called out to his boss, James Farmer, who came to the window and also observed the man wearing a red shirt and khaki pants remove the black and gold bag from the truck. SCR, Vol. 2, p. 43, 53. Farmer called the police to report the activity. SCR, Vol. 2, p. 54.

Officer Brian Goza testified that he responded to the call from dispatch who informed him that a black male wearing a red shirt had removed a black and gold bag from a truck parked at the Moose Lodge. SCR, Vol. 2, p. 59. Dispatch also stated that the suspect was near the intersection of South and Chrisman streets walking south. Id. Officer Goza was approximately four blocks from that location when he received the information. Id. Officer Goza approached a man wearing a red shirt and khaki pants who was carrying the yellow and black bag. SCR, Vol. 2, p. 62. When Officer Goza got out of the car, the man laid the bag on ground, turned around, and put hands behind his back in interlocking fashion. Id. Officer Goza recognized the man as Timothy Gunn. Id. The bag was filled with various tools. SCR, Vol. 2, p. 63.

After Officer Goza determined that the tools did not belong to Gunn, he was placed under arrest. SCR, Vol. 2, p. 64. Two days later, King identified Gunn from a photo lineup as the man he saw remove the bag from the truck. SCR, Vol. 2, p. 19. Steven Simpson, the owner of the truck, testified at trial to the contents of the bag and that their value was over $500.00. SCR, Vol. 2, p. 76, 85. Gunn was ultimately tried and convicted of grand larceny. He was sentenced as a habitual offender to ten years without parole.

On direct appeal, the Mississippi Supreme Court held:

The tools taken include a DeWalt tool kit, various drills and saws, extra batteries, some tool bits, a set of specialty wirecutters, screwdrivers, and other miscellaneous items. Simpson paid $1,236.90 as the combined price for his tools six months before they were stolen. Although purchase price of the stolen tools is not direct proof of the market value at the time of the theft, it is circumstantial evidence of value. FN4 Simpson testified that replacing the tools would cost him "approximately the same price."

FN4. Williams v. State, 994...