Burrough v. Horton
| Decision Date | 03 January 2011 |
| Docket Number | No. 4:09CV117-A-S,4:09CV117-A-S |
| Parties | CHRISTOPHER JASON BURROUGH, PETITIONER v. WARDEN RAYFORD HORTON, ET AL. RESPONDENTS |
| Court | U.S. District Court — Northern District of Mississippi |
This matter comes before the court on the pro se petition of Christopher Jason Burrough for a writ of habeas corpus under 28 U.S.C. § 2254. The state has answered the petition, and the petitioner has filed a traverse. The matter is ripe for resolution. For the reasons set forth below, all the claims in the instant petition, save one, will be dismissed. The final issue, failure of counsel to inform the petitioner of his right to appeal the legality of his sentence, will require more briefing by both parties. The briefing schedule will be set by separate order.
Christopher Jason Burrough is in the custody of the Mississippi Department of Corrections and currently housed at the Issaquena County Correctional Facility. He pled guilty to burglary of a dwelling in the Circuit Court of Carroll County, Mississippi. State Court Record, (S.C.R.), Vol. 1, pg. 41. Burrough was sentenced on this conviction to serve a term of twenty-five years in the custody of the Mississippi Department of Corrections. S.C.R., Vol. 1, pg. 64.
Burrough filed a "Motion to Vacate Judgment and Sentence, " in the Circuit Court of Carroll County, Mississippi, under Mississippi's Uniform Post-Conviction Collateral Relief statute, Miss. Code Ann. §99-39-1, etseq. S.C.R., Vol. 1, pg. 68. In that motion, Burrough raised the following grounds for relief (as stated by Petitioner pro se):
I. Trial court breached the plea agreement making Petitioner's plea of guilty involuntarily given.
II. Trial court imposed a disproportionate sentence.
Burrough never brought that motion before the trial court for a ruling; indeed, even the certificate of service on this pleading does not indicate that Burrough ever sent a copy to the Circuit Court Judge. S.C.R., Vol. 1, pg. 81.
On May 8, 2007, Burrough filed a "Motion to Post-Conviction Relief to Vacate and Set Aside Conviction and Sentence, "(PCR) in the Circuit Court of Carroll County, Mississippi, raising the following grounds for relief (as summarized by the court):
A. The petitioner's due process rights were violated because the trial court failed to consider the factual basis of the guilty plea and counsel was ineffective for failing to object to this fact.
B. The petitioner's due process rights were violated when the trial court failed to advise Burrough that he could appeal his sentence to the Mississippi Supreme Court and counsel was ineffective for failing to bring this error to the court's attention.
C. The petitioner's due process rights were violated when the trial court imposed a greater sentence than that in the plea recommendation and did not allow the petitioner to withdraw his guilty plea when faced with the higher sentence. Counsel was ineffective in failing to object to this.
D. Cumulative errors require reversal of the petitioner's conviction and sentence.
On January 7, 2008, Burrough filed a "Petition[ ] for Writ of Mandamus or For to Show Cause, " asking the Mississippi Supreme Court to order the Circuit Court of Carroll County to rule on his PCR, which was docketed as Mississippi Supreme Court Cause No. 2008-M-0034. Exhibit A. On February 1, 2008, the Circuit Court of Carroll County, Mississippi filed a "Response to Petition for Writ of Mandamus." In that response, the trial court noted that, with regard to the August 29, 2006, PCR, "[t]his Court has no record or recollection of receiving this motion and the docket reflects that no action was taken." Id. The trial court went on to state that the May 8, 2007, petition was "substantially the same motion, " and that "[t]his Court does recall receiving and examining this second motion." Id. The trial judge indicated that the May 2007 petition had been ruled on shortly after its receipt. However, since no copy of the order could be found, the trial court filed, with his response to the mandamus, a copy of an order finding Burrough's May 2007 PCR to be without merit and denying post-conviction collateral relief. On May 13, 2008, the Mississippi Supreme Court entered an order recognizing the trial court's denial of Burrough's PCR and dismissing his petition for a writ of mandamus as moot.
On February 13, 2008, Burrough filed a "Notice of Appeal" in the Mississippi Supreme Court appealing the trial court's denial of his May 2007 PCR. This appeal was filed in the same cause number as Petitioner's mandamus action, Cause No. 2008-TS-0034. In his appellate brief, Burrough raised the following grounds for relief (as summarized by the court):
Issue One: Petitioner was denied due process of law when the trial court failed to consider the factual basis of Petitioner's guilty plea and defense counsel was ineffective for failing to object to this.
Issue Two: Petitioner was denied due process of law when the trial court failed to advise Burrough that he could appeal the sentence imposed pursuant to his guilty plea and defense counsel was ineffective for failing to bring this error to the court's attention.
Issue Three: Petitioner was denied due process of law when the trial court rejected the plea recommendation and imposed a greater sentence under the mistaken belief that there was no plea recommendation and not allowing Petitioner to withdraw his guilty plea before imposing the greater sentence. Defense counsel was ineffective for failing to object.
Issue Four: The cumulative error in this case requires reversal.
The Mississippi Supreme Court found that Burrough's allegations were without merit and affirmed the trial court's denial of Petitioner's state court PCR. Burrough v. State, 9 So.3d 368 (Miss. 2009), reh'g. denied June 4, 2009 (Cause No. 2008-CP-00034-SCT).
In his federal petition for a writ of habeas corpus, Burrough raises the following grounds for relief (as summarized by the court): 1
Ground One: The trial court erred in failing to find that a due process violation occurred when the guilty plea was accepted without consideration of the factual basis of the guilty plea.
Ground Two: The trial court erred in failing to find that a due process violation occurred when the trial court failed to advise Petitioner that he could appeal the sentence imposed pursuant to his guilty plea.
Ground Three: The appellate court erred in failing to find that the trial court violated due process when it refused the plea recommendation and imposed a greater sentence without allowing the petitioner to withdraw his guilty plea.
Ground Four: The state court erred in failing to find that the cumulative error required a reversal of Petitioner's conviction and sentence.
Ground Five: 2 Ineffective assistance of counsel for failing to:
(A) object to the acceptance of the guilty plea;(B) advise the petitioner of his right to appeal his sentence;
(C) object to the trial court's imposition of a harsher sentence without, first, allowing the petitioner to withdraw his plea;
(D) advising the petitioner to plead guilty to an illegal sentence under the Mississippi post-release supervision statute MISS. Code Ann. § 47-7-33 and Miller v. State, 875 So.2d 194, 200 (Miss. 2004).
Burrough has exhausted his state court remedies as to the issues raised in the instant petition.
The Mississippi Supreme Court has already considered all grounds for relief in the instant petition on the merits and decided those issues against the petitioner; hence, these claims are barred from habeas 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 (5th Cir. 2000). The second exception, subsection (d)(2), applies to questions of fact. Lockhart v. Johnson, 104 F.3d 54, 57 (5th 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 bothsubsections.
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, 120 S.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 any grounds for relief in the present petition.
Nevertheless, under § 2254(d)...
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