Massey v. Denmark

LONNIE MASSEY PETITIONER v. JOHNNIE DENMARK RESPONDENT

CIVIL ACTION NO. 3:14CV582 HTW-LRA

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF MISSISSIPPI NORTHERN DIVISION

January 17, 2017

REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE

Lonnie Massey seeks federal habeas relief under 28 U.S.C. § 2254. Respondent Johnnie Denmark filed a Response to the petition wherein he asserts that Massey is not entitled to federal habeas relief because his claims are procedurally defaulted and without merit. As a thorough review of the case supports the Respondent's contention, the Court recommends that the petition be dismissed.

On December 6, 2010, Massey pled guilty to two counts of possession of a firearm by a previously convicted felon and one count of aggravated assault in the Circuit Court of Madison County, Mississippi. Pursuant to 28 U.S.C. § 2254 (e)(1), the following factual determinations are presumed to be correct:

On March 29, 2009, the Madison County Sheriff's Department dispatched deputies to a store on Ratliff Ferry Road in Madison County. A caller had reported two men were fighting, and at least one of the men had a firearm. Upon arrival, the deputies were informed that the men had left. The deputies went to a nearby house trailer and witnessed Massey holding a .410 shotgun inside the dwelling. As a result of this encounter, Massey was indicted for possession of a firearm by a previously convicted felon. He had been convicted in Louisiana of multiple felonies.

On or about August 29, 2009, law enforcement officers responded to a call that alleged Massey had fired a .22 rifle at his neighbors, Ande Daniel and Cynthia Pacquin. They executed reports and attested that Massey had in fact fired a gun at them.

As a result of these separate events, Massey was charged with possession of a firearm by a previously convicted felon and two counts of aggravated assault.

Massey v. State, 131 So.3d 1213, 1215 (Miss. Ct. App. 2013) reh'g denied, Nov. 5, 2013, cert. denied, Feb. 13, 2014.

Massey's first defense attorney was appointed in the summer of 2010 and recommended a guilty plea. Although she filed a motion to compel discovery, on December 6, 2010, Massey alleged that she had not diligently represented him. That same day, Massey was appointed a new attorney who negotiated a plea deal dropping the aggravated assault charge of Pacquin in exchange for a guilty plea on the remaining charges. Id.

On the two counts of possession of a firearm, Massey was sentenced to serve concurrent ten-year terms in the custody of the Mississippi Department of Corrections ("MDOC"). On the count of aggravated assault of Daniel, he was sentenced to twenty years to run consecutively to the possession of a firearm charge, with one day to serve and the remainder of the sentence suspended, and five years of post-release supervision.¹ Aggrieved, Massey filed a motion for post-conviction relief on October 17, 2011, challenging the voluntariness of his guilty plea, the effectiveness of his counsel, and thevalidity of his sentence. He also claimed to have newly discovered exonerating evidence. The trial court denied the motion for post-conviction relief on January 3, 2012, and the Mississippi Court of Appeals affirmed the denial on July 16, 2013.

While the appeal was pending before the Mississippi Court of Appeals, Massey filed a "Motion for Court Order to Vacate Sentence and Conviction," which was liberally construed by the state courts as a second motion for post-conviction relief. As grounds, Massey alleged, inter alia, that in an effort to circumvent an ineffective assistance of counsel claim, his newly appointed counsel and the circuit clerk conspired to backdate his guilty-plea petition so as to cover up counsel's failure to investigate his case. The record indicates that Massey pled guilty on December 6, 2010, but the guilty plea petition was signed on November 6, 2010.²

On December 5, 2012, the Mississippi Supreme Court found that the motion was improperly filed, and denied it without prejudice to Massey's right to file it in the trial court. On February 4, 2013, Massey filed the motion to vacate in the trial court and it was subsequently dismissed as successive and without merit by that court on March 8, 2013. Aggrieved, Massey appealed the denial to the Mississippi Supreme Court, and raised the following as grounds (as stated by petitioner):

A. After being appointed, [the new attorney] went immediately to the Honorable District Attorney for Madison County and negotiated a plea deal.

B. To see and witness very clear evidence of conspiracy, appellant asks this Honorable Court to see the last page of the "Best-Interest" plea bargain.³

On April 8, 2014, the Mississippi Court of Appeals affirmed the lower court's dismissal of Massey's second post-conviction motion as a successive writ. Massey v. State, 144 So.3d 204 (Miss. Ct. App. 2014), reh'g denied, Aug.12, 2014, cert. denied, Nov. 6, 2014. The Court alternatively found that the claims raised therein were barred by res judicata and without merit.

On July 28, 2014, Massey filed the instant petition for habeas relief raising the following grounds (as stated by Petitioner):

1. Involuntary Plea - All charges where ran together for a package deal, on 12-6-10, at the pre-trial conference hearing. The Circuit Court Judge, Mr. Richardson, said "If he don't take the deal and is found guilty, Im going to do what the law allows me to do." That is a very clear threat made by the judge. No objection from defense attorney. Made plea to best interest, "not guilt."

2. Ineffective Assistance of Counsel, Violation of 6th Amendment right to effective counsel - The circuit court appointed [a new attorney] to take the place of [the previous attorney], on 12-6-2010. [He] went immediately to the State for a plea deal. [He] was offered two (2) witnesses to support that a false report was made, [he] was not interested in nothing but a fast guilty plea. [He] would not object to threats made. [He] would not ask to continue the case to do investigation or contact witnesses.

3. Denying Transcript of Hearing, "Evidence," Violation of Equal Protection. Denied Records and Transcripts -Petition has filed motion after motion requesting the pre-trial conference transcript of 12-6-2010, to show and use as evidence that threats [were] made toinduce a guilty plea. The courts have denied every attempt this petitioner has made for the transcript. The hearing on December 6, 2010 is this Petitioner's, Massey's, evidence that proves his case.

4. Denied Rights to Fundamental Fairness and Due Process; Denied Transcript of Hearing on 12-6-2010 - Petitioner filed a motion to the Court of Appeals asking for his Right to Fundamental Fairness and Due Process. The court denied Petitioner's motions. Petitioner seeks his seriously needed transcript of the pre-trial conference hearing on 12-6-2010, to prove his case, "Threats [were] made," and to show why [new counsel] was appointed. "Denied by the Courts."⁴

Discussion

This Court's review of Petitioner's claims for federal habeas relief is governed by the Antiterrorism and Effective Death Penalty Act ("AEDPA") of 1996. Under the Act, this Court cannot grant a petitioner federal habeas corpus relief for any claim that was adjudicated on the merits in a state court proceeding, unless the adjudication:

(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.

28 U.S.C. § 2254(d). Under 28 U.S.C. § 2254(d)(1), this court reviews questions of law as well as mixed questions of law and fact, while questions of fact are reviewed under 28 U.S.C. § 2254(d)(2).

Under the first prong, the clauses "contrary to" and "unreasonable application of" are independent bases for granting federal habeas relief. Williams v. Taylor, 529 U.S. 362, 405 (2000). A state court's decision is "contrary to" federal law if it contradicts Supreme Court precedent or reaches a different result on materially indistinguishable facts. Id. Under the "unreasonable application" clause, a federal habeas court may grant relief if the state court "correctly identifies the governing legal principle" but then "unreasonably applies it to the facts of the particular case." Bell v. Cone, 535 U.S. 685 694 (2002). The state court's decision must be objectively unreasonable, not merely erroneous or incorrect. Wood v. Allen, 558 U.S. 290, 301 (2010).

AEDPA's second prong requires that federal courts defer to a state court's factual determinations unless they are based on an "unreasonable determination of the facts in light of the evidence presented in the State court proceeding." 28 U.S.C. § 2254(d); Morales v. Thaler, 714 F.3d 295, 301 (5th Cir. 2013). Deference is critical because federal courts have no authority to grant habeas corpus relief simply because "we conclude, in our independent judgment, that a state supreme court's application of [federal] law is erroneous or incorrect." Catalan v. Cockrell, 315 F.3d 491, 493 (5^th Cir. 2002); Jasper v. Thaler, 466 F. App'x 429, 435 (5th Cir. 2012). Thus, we presume the state court's determination of a factual issue is correct, unless a petitioner rebuts the presumption with clear and convincing evidence. See 28 U.S. C. § 2254 (e)(1).

However, applicants seeking federal habeas relief under § 2254 are required to exhaust all claims in state court prior to requesting federal collateral relief. Parr v.Quarterman, 472 F.3d 245 (5^th Cir. 2006). To satisfy the exhaustion requirement of § 2254(b)(1), a "habeas petitioner must have fairly presented the substance of his claim to the state courts." Smith v. Dretke, 422 F.3d 269, 276 (5th Cir. 2005). This requires submitting the factual and legal basis of every claim to the highest...