Fairman v. Anderson

• Decision Date: 28 September 1999
• Docket Number: No. 98-60420,98-60420
• Citation: 188 F.3d 635
• Parties: (5th Cir. 1999) JERRY FAIRMAN, Petitioner-Appellee, v. JAMES V. ANDERSON, SUPERINTENDENT, MISSISSIPPI STATE PENITENTIARY; MIKE MOORE, Attorney General, State of Mississippi, Respondents-Appellants
• Court: U.S. Court of Appeals — Fifth Circuit

Page 635

188 F.3d 635 (5th Cir. 1999)

JERRY FAIRMAN, Petitioner-Appellee, v. JAMES V. ANDERSON, SUPERINTENDENT, MISSISSIPPI STATE PENITENTIARY; MIKE MOORE, Attorney General, State of Mississippi, Respondents-Appellants.

No. 98-60420

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

September 28, 1999

[Copyrighted Material Omitted] Appeal from the United States District Court for the Northern District of Mississippi

Before JONES, STEWART and DENNIS, Circuit Judges.

CARL E. STEWART, Circuit Judge:

In this appeal, the State of Mississippi ("State") contests the district court's grant of Petitioner-Appellee Jerry Fairman's ("Fairman") petition for habeas corpus relief pursuant to 28 U.S.C. 2254 (1988). As we will explain infra, although we disagree with some of the district court's reasoning, we concur in its conclusion that Fairman is entitled to habeas corpus, and we thus affirm the judgment of the court below.

I

On the afternoon of September 7, 1985, Fairman and Laverne "Whoop" Jones ("Jones"), each armed with a knife, met on a street corner and engaged in an argument. See Fairman v. State, 513 So.2d 910, 912 (Miss. 1987). Michael Prewitt ("Prewitt"), who was also present, broke up the altercation. See id. In the interim, someone called a police officer, who reported to the area and stated that he would straighten out the "mess." See id. All three men subsequently left the scene. See id.

After dark that same day (around 6:30 p.m.), Fairman and Prewitt drove to a store in Fairman's truck. See id. Fairman went into the store; when he returned to the truck, he and Prewitt drove behind the store without turning on the truck's headlights. See id. When he subsequently turned on the headlights, Fairman saw Jones in front of the truck, approaching them. See id. Fairman stopped the truck. He then exited the vehicle, and, noting to Prewitt that "he's got something," armed himself with a large stick that he more commonly used to prop up the hood of his truck. See id. Fairman beat Jones about the head with the stick several times; Jones fell to the ground but then rose and walked away in the direction of his house. See id.

Officer Ollie White ("White"), who was a short distance away, arrived at the scene shortly after the beating.¹ See id. He questioned Prewitt and Fairman (who was still holding the stick) as to what had happened. See id. Satisfied that the fight was not serious and did not require any further detention, White allowed Prewitt and Fairman to leave the area.

Jones returned home around 8:30 p.m. with his head bleeding; hours later, Annie Mae Miller ("Miller"), who lived with Jones, took him to the emergency room of the local hospital, where he was examined, treated, and released. See id. Although the examination revealed that Jones's jaw had been fractured, the X-rays revealed no skull fracture; the treating physician stitched Jones's wounds and advised him to see his own doctor approximately a week later for removal of the stitches. See id. That same night, Miller reported that Jones had died in his sleep. See id.

An autopsy revealed that Jones died from an epidural hematoma which was secondary to head injuries from a beating with a blunt instrument. The hematoma was the product of a skull fracture, which extended across the top of Jones's skull, from above his right ear to the left temple. See id. Investigators found Fairman's stick to be consistent with the wound. See id.

Fairman was tried for the murder of Jones in the Circuit Court of Bolivar County, Mississippi. See id. at 911. At trial he urged a theory of self-defense, claiming that he hit Jones with the stick two to four times when he saw Jones reach for a knife as he came toward him. See id. at 912. He averred that, when Jones ceased his approach, he stopped hitting Jones. See id. Prewitt, the only eyewitness at the scene of both altercations, testified for the prosecution that, although he had seen a knife in Jones's hand during the first argument, he had not seen any weapon at the time of the second altercation.

Fairman was convicted of murder less than capital on December 13, 1985, and sentenced to life in prison six days later. See id. at 911. The conviction and sentence were affirmed by the Mississippi Supreme Court on September 16, 1987, see id. at 916, and rehearing was denied on October 28, 1987.

On January 9, 1989, Prewitt signed an affidavit recanting his trial testimony. In it, he stated that Jones had wielded a butcher knife during the second encounter and that Fairman had struck Jones only after the threat from the knife became apparent. He explained that he had committed perjury only because the police coerced him into making a false statement by threatening to charge him with the murder of Jones if he did not testify for the State.

Although the time for filing a petition for state post-conviction relief expired on September 16, 1990, Fairman did not file his petition until June 8, 1992, when he submitted a pro se state application for leave to file a motion for post-conviction relief and a motion for post-conviction relief. He argued that his claims should not be procedurally barred as untimely because he had retained a series of attorneys to assist him on his case before the limitations period had expired, and each had failed to act. Fairman detailed through affidavits and exhibits his difficulties in attempting to procure legal assistance and also submitted newly-discovered evidence in the form of Prewitt's affidavit. On July 29, 1992, the Mississippi Supreme Court denied Fairman's claims as time-barred without exception pursuant to MISS. CODE ANN. 99-39-5(2) (Supp. 1991), and denied his request for rehearing on September 13, 1992.

On August 24, 1993, Fairman filed a pro se motion asserting twelve claims for federal habeas relief pursuant to 28 U.S.C. 2254 (1988).² On December 16, 1996, the magistrate judge recommended that each of Fairman's claims be dismissed except for his allegation that the state had knowingly used false evidence to obtain Fairman's conviction. Addressing the procedural bar in 99-39-5, the magistrate judge found that Fairman had alleged sufficient facts to establish "cause for his default" (the failure of the attorneys on whom he had relied to pursue relief for him) and "actual prejudice" that resulted from constitutional due process violations. Failure to consider the claims, the magistrate opined, also would lead to a fundamental miscarriage of justice. Although both Fairman and the State objected to the magistrate's report and recommendation, the district court adopted the findings therein on February 13, 1997. In its attendant order, the district court explained why attorney inaction in Fairman's case constituted sufficient cause for default and sent the case back to the magistrate for an evidentiary hearing. The magistrate appointed counsel for purposes of the hearing, which attorney continues to represent Fairman.

After taking testimony from Prewitt and White on the newly-discovered evidence claim on May 27 and June 27, 1997, the magistrate judge filed a second report and recommendation on November 12, 1997, making specific factual findings and granting Fairman habeas relief. He found that Fairman's request for a new trial should be granted because his claims were not procedurally barred; that Prewitt's recantation was credible;³ and that the State knowingly used perjured testimony that unquestionably affected the jury's decision with regard to Fairman's self-defense claim. The district court adopted the report and recommendation of the magistrate judge on June 5, 1998, and ordered Fairman to be released from custody unless he was retried within 120 days. The State filed the instant appeal on June 15, 1998. On July 17, 1998, the district court stayed its order that Fairman be released from custody on the condition that the State request an expedited appeal. We granted that unopposed motion on September 22,1998.

II

Two different elements of review are applicable to this case.⁴ The second sequentially, but the one of which we may more easily dispose, is our review of the district court's grant of habeas corpus to Fairman. We review a court's findings of fact on requests for habeas corpus relief for clear error and its rulings on issues of law de novo. See Little v. Johnson, 162 F.3d 855, 859 (5th Cir. 1998). As with any case we review, a "finding of fact made by the district court is clearly erroneous only when the reviewing court, after reviewing the entire evidence, is left with the definite and firm conviction that a mistake has been committed." 2925 Briarpark, Ltd. v. Commissioner, 163 F.3d 313, 317 (5th Cir. 1999). A due process claim that a state knowingly used perjured testimony at trial or allowed untrue testimony to go uncorrected presents a mixed question of law and fact, and thus we will review the underlying facts for clear error and the conclusions from the facts de novo. See Creel, 162 F.3d at 391.

We also review de novo a district court's decision to grant federal habeas review of a prisoner's claims defaulted in state court pursuant to an independent and adequate state procedural rule. See Martin v. Maxey, 98 F.3d 844, 847 (5th Cir. 1996). Under pre-AEDPA law, 28 U.S.C. 2254(d) required federal courts in habeas proceedings to accord a presumption of correctness to state-court findings of fact. See Sumner v. Mata, 455 U.S. 591, 591-92 (1982) (per curiam). The habeas corpus statute applied to Fairman provided that "a determination after a hearing on the merits of a factual issue, made by a State court of competent jurisdiction . . . shall be presumed to be correct." 28 U.S.C. 2254(d) (1992). Only when one of seven specified factors is present or the federal court determines that the state court's finding of fact "is not fairly supported by the record" may the presumption properly be viewed as inapplicable or rebutted.⁵ See Mata, 455 U.S. at 592.

In the...