Brown v. Byrd
| Decision Date | 03 February 2016 |
| Docket Number | CAUSE NO. 1:15CV115-LG-RHW |
| Parties | EDDIE JOSEPH BROWN PETITIONER v. RAYMOND BYRD RESPONDENT |
| Court | U.S. District Court — Southern District of Mississippi |
BEFORE THE COURT is the Report and Recommendation [25] entered by United States Magistrate Judge Robert H. Walker in which he recommends that Eddie Joseph Brown's petition for a writ of habeas corpus should be denied. Brown has filed an Objection [29] to the Report and Recommendation. After reviewing the Report and Recommendation, the Objection, the record in this matter, and the applicable law, the Court finds that the Report and Recommendation should be adopted as the opinion of this Court and Brown's petition should be denied.
On May 31, 2011, a grand jury issued an indictment alleging that on December 20, 2010, Brown "did knowingly, wilfully, unlawfully and feloniously possess Cocaine, a Schedule II Controlled Substance, with the intent to transfer or distribute the said controlled substance" in violation of Miss. Code Ann. § 41-29-139(a)(1). (State Ct. R., Vol. 1 at 14, ECF No. 11-1). On March 9, 2012, the assistant district attorney filed two separate motions: (1) a motion to amend the indictment to allege that Brown is a habitual offender subject to being sentenced pursuant to Miss. Code Ann. § 99-19-81; and (2) a motion to amend the indictment to add an enhanced penalty pursuant to Miss. Code. Ann. § 41-29-147 due to Brown's subsequent offender status. (State Ct. R., Vol. 1 at 39-41, ECF No. 11-1). The motions provided that Brown was convicted of felony possession of a controlled substance and sentenced to three years imprisonment on June 13, 2005, and he was convicted of felony transfer of a controlled substance and sentenced to serve ten years imprisonment on February 5, 1993. (Id.) On March 13, 2012, the assistant district attorney also filed a motion to amend the indictment to delete the allegation that Brown intended to transfer or distribute the controlled substance and to add an allegation that he possessed between two and ten grams of cocaine. (State Ct. R., Vol. 1 at 43, ECF No. 11-1).
All three motions to amend the indictment were argued on March 13, 2012, the first day of Brown's trial. (State Ct. R., Vol. 2 at 5-8, ECF No. 11-2). Brown's attorney did not object to the amendment to delete the intent to transfer portion of the indictment. (Id. at 5). As for the request to add Brown's status as a habitual offender pursuant to Miss. Code Ann. § 99-19-81, his attorney stated that she had reviewed the penitentiary packet concerning Brown and that it appeared that he did in fact have two prior convictions. (Id. at 7). Brown's attorney also conceded that Brown had previously pled guilty to simple possession, but she objected to the addition of an enhanced penalty pursuant to Miss. Code Ann. § 41-29-147. (Id. at 8-9). The Circuit Court judge granted the three motions to amend the indictment, and he entered orders accordingly. (Id. at 6-9; State Ct. R., Vol. 1 at 49-51, ECF No. 11-1).
After a two day trial, a jury convicted Brown of possession of between two and ten grams of cocaine, a schedule II controlled substance. (State Ct. R., Vol. 3 at 218, ECF No. 11-3). Due to Brown's habitual offender and subsequent drug offender status, the court sentenced him to serve thirty-two years imprisonment without the hope of early release or parole. Miss. Code. Ann. § 41-29-147; Miss. Code Ann. § 99-19-81.
Brown filed a motion for judgment notwithstanding the verdict or in the alternative a new trial, but the motion was denied. He then filed an appeal. The Mississippi Court of Appeals affirmed his conviction and sentence. Brown v. Mississippi, 143 So. 3d 624 (Miss. Ct. App. 2014). Brown's petition for writ of certiorari was denied by the Mississippi Supreme Court on July 24, 2014. (State Ct. R., Vol. 7 at 90, ECF No. 11-7). Brown then filed an application for leave to proceed in the circuit court with a motion for post-conviction collateral review. The Mississippi Supreme Court denied the application on February 27, 2015. (State Ct. R., Vol. 8 at 2, ECF No. 11-8).
Brown filed the present petition for writ of habeas corpus on April 8, 2015. He was permitted to amend his petition on May 4, 2015. He alleges that: (1) the trial court erred in amending his indictment to (a) delete the intent to transfer allegation and (b) add the weight of the drugs he was charged with possessing; (2) the trial court erred by sentencing him as a habitual offender and subsequent drug offender; (3) the trial court misapplied federal and state law concerning constructive possession; and (4) his attorney provided ineffective assistance of counsel becauseshe (a) failed to interview certain witnesses, (b) conspired to amend the indictment without consulting Brown, (c) failed to move to suppress evidence found in his car, and (d) failed to seek a lesser included offense instruction.
United States Magistrate Judge Robert H. Walker has issued a Report and Recommendation [25] proposing that: (1) Brown's claims of ineffective assistance of counsel for alleged failure to interview witnesses, failure to move to suppress evidence, and failure to seek a lesser included offense instruction are unexhausted claims that should be dismissed; (2) Brown's claims concerning amendment of the indictment should be denied because the state court's decision did not constitute an unreasonable application of federal law; (3) Brown's claims that he was improperly sentenced as a habitual offender and subsequent drug offender are without merit; (4) the state court did not misapply the law as to constructive possession; (5) Brown's ineffective assistance of counsel claim concerning amendment of the indictment is without merit; (6) Brown's motions [17, 19] for an evidentiary hearing should be denied; (7) Brown's motion to strike certain documents that he has filed is moot; and (8) Brown's motion to compel should be denied. Brown filed a timely objection [29] to the Report and Recommendation.
Pursuant to the Antiterrorism and Effective Death Penalty Act ("AEDPA"), a federal court cannot grant an application for a writ of habeas corpus as to any claim that was adjudicated on the merits in state court proceedings unless the state court's adjudication of the claim either "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 "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)(1). Federal courts are also prevented from granting habeas relief unless the petitioner has exhausted available state court remedies. 28 U.S.C. § 2254(b)(1).
In his objection, Brown does not dispute that he failed to raise the following ineffective assistance of counsel claims in state court: failure to interview witnesses, failure to file a motion to suppress, and failure to seek a lesser included offense instruction. As a result, Judge Walker correctly recommended dismissal of these claims for failure to exhaust available state court remedies. See 28 U.S.C. § 2254(b)(1).
Brown argues that the trial court should not have permitted amendment of the indictment to omit the intent to transfer allegation or to add the weight of cocaine he was charged with possessing. He claims that these were substantive changes to the indictment that could only be made by a grand jury. He argues that if the amendment had not been permitted, a jury would have acquitted him of the transfer charge and convicted him of simple possession. Since the weight of the drug was not included in the original indictment, he claims the trial court would have been required to assume he possessed the lowest weight of cocaine provided forin the simple possession statute — less than one-tenth gram — which at that time carried a penalty of one to four years.1 See Miss. Code Ann. § 41-29-139(c)(1)(A)(2012); see also Torrey v. State, 816 So. 2d 452, 454 (¶4) (Miss. Ct. App. 2002) ().
The Fifth Circuit has held that the sufficiency of the indictment may be "a basis for habeas relief if the mistake in the indictment is so fatally defective that it deprives the convicting court of jurisdiction." Riley v. Cockrell, 339 F.3d 308, 313-14 (5th Cir. 2003). "State law dictates whether a state indictment is sufficient to confer a court with jurisdiction." Williams v. Collins, 16 F.3d 626, 637 (5th Cir. 1994).
Under Mississippi law, an indictment can be amended as to form, but an indictment cannot be amended as to a substantive matter "without the agreement of the grand jury that issued the indictment." Kittler v. State, 830 So. 2d 1258, 1259 (Miss. Ct. App. 2002). Amendments to an indictment are as to form if they do not "materially alter facts which are the essence of the offense on the face of the indictment as it originally stood or materially alter a defense to the indictment as it originally stood so as to prejudice the defendant's case." Id. at 1260. "The test for determining whether an amendment will prejudice the defendant's case is whether a defense as it originally stood would be equally available after the amendment ismade." Holmes v. State, 660 So. 2d 1225, 1227 (Miss. 1995), disagreed with on other grounds by Dilworth v. State, 909 So. 2d 731 (Miss. 2005); see also Griffin v. State, 540 So. 2d 17, 21 (Miss. 1989).
An amendment to the indictment that substitutes a lesser included offense is one of form, not substance. Holmes, 660 So. 2d at 1227. Under Mississippi law, possession of a controlled substance is a...
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