Lattimore v. King
| Decision Date | 11 August 2014 |
| Docket Number | No. 4:11CV71-D-A,No. 4:11CV71-GHD-SAA,4:11CV71-GHD-SAA,4:11CV71-D-A |
| Court | U.S. District Court — Northern District of Mississippi |
| Parties | TERRY LEE LATTIMORE PETITIONER v. SUPERINTENDENT RON KING, ET AL. RESPONDENTS TERRY LEE LATTIMORE, PETITIONER v. RON KING, ET AL. RESPONDENTS |
This matter comes before the court on the pro se petition of Terry Lee Lattimore for a writ of habeas corpus under 28 U.S.C. § 2254. The State has responded to the petition; Lattimore has submitted a traverse, and the State has responded to the traverse. The matter is ripe for resolution. For the reasons set forth below, the instant petition for a writ of habeas corpus will be denied.
Terry Lee Lattimore is in the custody of the Mississippi Department of Corrections and is currently housed at the South Mississippi Correctional Institution in Leakesville, Mississippi. He was convicted of capital murder in the Circuit Court of Washington County, Mississippi, State Court Record, "S.C.R.", 2002-KA-01853,1 Vol. 1, pg. 104. Lattimore was then sentenced to a term of life inthe custody of the Mississippi Department of Corrections. S.C.R., 2002-KA-01853, Vol. 1, pg. 105.
Lattimore appealed his conviction and sentence to the Mississippi Supreme Court, raising the following grounds for relief, (as stated by Lattimore through counsel):
III. Lattimore was denied effective assistance of counsel in violation of the Sixth Amendment of the Constitution of the United States and the Constitution of the State of Mississippi.
IV. The trial court erred in overruling Lattimore's objection to the introduction, by the State, of a metal object as the purported murder weapon.
V. The State made certain comments during closing argument that were improper, inflammatory and outside the record and should be reviewed for plain error. Additionally, this Court should review as plain error Mrs. Dycus' in-court identification of Lattimore as it was suggested and assisted by members of her family in the audience.
VI. Evidence was presented to the trial court that during the course of Lattimore's trial one of the jurors was communicating with someone outside the jury, in direct violation of the trial court's order and the rules of sequestration, accordingly this error should be reviewed by this Court for plain error.
VII. The trial court erred in refusing to grant Lattimore's motion for mistrial following an egregious remark and misrepresentation made by the State during its closing argument.
VIII. The trial court erred in denying Lattimore's motion for a new trial as the verdict of the jury was against the overwhelming weight of the evidence.
IX. Lattimore's conviction and sentence require reversal as the cumulative effect of the errors committed by the State and trial court deprived Lattimore of his constitutional right to a fair trial.
The Mississippi Supreme Court considered Lattimore's claims and affirmed his conviction and sentence. Lattimore v. State, 958 So.2d 192 (Miss. 2007), reh'g. denied June 28, 2007 (Cause No. 2002-KA-01853-SCT)
In the Mississippi Supreme Court, Lattimore filed an application for permission to proceed in the trial court with a motion for post-conviction collateral relief. S.C.R., 2008-CP-01760-COA, Vol. 1, pg. 1. On October 23, 2007, the Mississippi Supreme Court granted Lattimore permission to proceed in the trial court. S.C.R., 2008-CP-01760-COA, Vol. 1, pg. 133. In his motion for post-conviction collateral relief, Lattimore raised the following grounds for relief (as summarized by the court):
B. Counsel failed to properly explain the law governing the pre-trial and in-court identification and should have cited to Gilbert v. California, 388 U.S. 218 (1967).
C. Counsel failed to address trial counsel's failure to address the pre-trial identification issue in terms of deprivation of counsel.
D. Counsel failed to challenge trial counsel's failure to investigate jurors, particularly Arthur L. Dickson.
E. Counsel failed to challenge trial counsel's failure to litigate Lattimore's Fourth Amendment claim.
F. Counsel failed to argue that the trial court had abused its discretion in allowing the pipe to be admitted into evidence.
B. Counsel failed to argue that the trial court had abused its discretion in allowing the pipe to be admitted into evidence.
III. Lattimore was denied his right to counsel.
IV. Lattimore was denied his right to be tried by an impartial jury.
V. Lattimore was denied his right to be free from illegal searches and seizures.
On September 29, 2008, the trial court denied Lattimore's motion. S.C.R., 2008-CP-01760-COA, Vol. 1, pp. 160-164. The Mississippi Court of Appeals then affirmed the trial court's denial of Lattimore's motion for post-conviction collateral relief. Lattimore v. State, 37 So.3d 678 (Miss. App. 2010), reh'g denied June 22, 2010 (Cause No. 2008-CP-01760-COA). Lattimore did not seek a writ of certiorari to the Mississippi Supreme Court for further review of the Court of Appeals' opinion.
Lattimore filed the instant federal petition for a writ of habeas corpus under 28 U.S.C. '2254, raising the following grounds for relief (as summarized by the court)2:
Ground Three: Ineffective assistance of trial counsel for:
A. Representing both Lattimore and accomplice at the time of the pre-trial line up;
B. Failing to adequately investigate Lattimore's case and interview key witnesses;
Ground Five: Lattimore was denied due process due to possible juror misconduct.
Ground Six: The State committed prosecutorial misconduct during closing arguments.
Ground Seven: The trial court erred in failing to grant Lattimore's motion for a mistrial.
Ground Eight: The verdict was against the overwhelming weight of the evidence.
Ground Nine: Ineffective assistance of appellate counsel:
B. Trial counsel failed to appear at the pre-trial lineup.
C. Trial counsel failed to object to the in-court identification.
D. Trial counsel failed to move for a mistrial due to the in-court identification.
Ground Eleven: Ineffective assistance of counsel during pre-trial, trial and post-trial proceedings.
Ground Twelve: Lattimore was denied his right to counsel during the pre-trial line-up.
Ground Thirteen: Lattimore was denied his right to be tried by an impartial jury.
If an inmate seeking habeas corpus relief fails to exhaust an issue in state court - and no more avenues exist to do so - under the doctrine of procedural default that issue cannot be raised in a federal habeas corpus proceeding. Sones v. Hargett, 61 F.3d 410, 416 (5th Cir. 1995). Similarly, "When a state court declines to hear a prisoner's federal claims because the prisoner failed to fulfill a state procedural requirement, federal habeas is generally barred if the state procedural rule is independent and adequate to support the judgment." Sayre v. Anderson, 238 F. 3d 631, 634 (5th Cir. 2001) (citing Coleman v. Thompson, 501 U.S. 722, 111 S.Ct. 2546, 2553-54, 115 L.Ed.2d 640 (1991); Amos v. Scott, 61 F.3d 333, 338-39 (5th Cir. 1995)). This doctrine is known as procedural bar.
Whether a petitioner's claims are procedurally defaulted or procedurally barred, the way he may overcome these barriers is the same. First, the petitioner can overcome the procedural default or bar by showing cause for it - and actual prejudice from its application. To show cause, a petitioner must prove that an external impediment (one that could not be attributed to him) existed to prevent him from properly raising and discussing the claims as grounds for relief in state court. See United States v. Flores, 981 F.2d 231 (5th Cir. 1993). To establish prejudice, a petitioner must show that, but for the alleged error, the outcome of the proceeding would have been different. Pickney v. Cain, 337 F.3d 542 (5th Cir. 2003). Even if a petitioner fails to establish cause for his default and...
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