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.
