McBride v. Waller

• Decision Date: 02 March 2015
• Docket Number: No. 2:11CV221-SA-JMV,2:11CV221-SA-JMV
• Parties: JERRY L. MCBRIDE PETITIONER v. WARDEN WALLER, ET AL. RESPONDENTS
• Court: U.S. District Court — Northern District of Mississippi

JERRY L. MCBRIDE PETITIONER v. WARDEN WALLER, ET AL. RESPONDENTS

No. 2:11CV221-SA-JMV

UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF MISSISSIPPI DELTA DIVISION

March 2, 2015

MEMORANDUM OPINION

This matter comes before the court on the pro se petition of Jerry L. McBride for a writ of habeas corpus under 28 U.S.C. § 2254. The State has responded to the petition, and McBride has filed a 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.

Facts and Procedural Posture

Jerry McBride is in the custody of the Mississippi Department of Corrections and in currently housed at the Yazoo County Correctional Center in Yazoo City, Mississippi. He was convicted of sexual battery in the Circuit Court of Coahoma County, Mississippi and sentenced to serve twenty-five years in the custody of the Mississippi Department of Corrections. See State Court Record ("SCR") Vol. 1, pp. 26-27.

Through new counsel, McBride appealed his conviction and sentence to the Mississippi Supreme Court, raising the following issues (as stated by appellate counsel):

A. Whether Appellant's constitutional and statutory right to a speedy trial was violated where the trial court found the delays presumptively prejudicial but did not require the State to overcome the presumption; failed to adequately weigh prejudice and where the primary reason for delay is neglect in placing the case on the trial docket.

B. Whether the evidence was sufficient to sustain the verdict where it was not possible to prove the elements of the crime as submitted to the jury in the juryinstructions, within the time frame submitted to the jury as prescribed in said jury instructions.

On May 4, 2010, the Mississippi Court of Appeals affirmed McBride's conviction and sentence. McBride v. State, 61 So. 3d 174 (Miss. Ct. App. 2010), reh'g denied, August 17, 2010 (Cause No. 2008-KA-1347-COA). McBride, through counsel, sought certiorari review of the court of appeals' decision, and on May 12, 2011, the Mississippi Supreme Court affirmed the court of appeals' ruling. McBride v. State, 61 So. 3d 138 (Miss. 2011) (Cause No. 2008-CT-1347-SCT).

McBride then filed, pro se, an "Application for Leave to Proceed in the Trial Court" in the Mississippi Supreme Court. He listed the following grounds for relief in the section of the motion entitled "Concise Statements of the Claim and Grounds Upon Which this Motion is Based" of the motion (as stated by McBride, pro se):

A. Trial court's failure to take adequate steps in conflict of interest between defendant and defense counsel deprived defendant of his constitutional right to effective assistance of counsel and a fair trial.¹

1. Counsel failed to object to victim's testimony and follow up on alleged improper use of 404(b) testimony.

2. Counsel failed to raise speedy trial issue at trial.

B. Court erred by allowing the state to use 404(b), though not ruling on motion to grant or deny, to allow other bad habits to show plan, intent, and motive with an alleged crime, supposingly [sic] happened some years after the first alleged crime.

C. The trial court erred by not applying the mandatory application of the Rule 403 test and not giving limited cautionary instructions to the jury.

D. The state's constructive amendment violated McBride's Fifth Amendment right to be indicted by a grand jury.

E. McBride was denied due process, equal protection of the law in violation of Mississippi Code Annotated Section 99-17-1 and USCA Const. Amend 6.

F. Failure to satisfy proof beyond a reasonable doubt.

G. The state applied ambiguous language to diverge from facts to relieve burden of proving every element beyond a reasonable doubt.

H. Trial court erred in compliance with Miss. Code Ann. § 99-7-9 and Code 1942 § 2441.

I. McBride was denied a fair and impartial trial. With the number of errors, broken laws, denial of laws, constitutional violations, denial of constitutional rights, including effective assistance of counsel, due process, equal protection of the law in McBride's case is imaginary.

J. McBride's conviction proved miscarriage of justice.

On November 2, 2011, the Mississippi Supreme Court denied the application, finding:

McBride asserts that his right to a speedy trial was violated and that the evidence against him was insufficient to support a guilty verdict. These issues were addressed on direct appeal and are procedurally barred by the doctrine of res judicata. Miss. Code Ann. § 99-39-21(3). McBride's remaining claims were capable of being raised at trial or on direct appeal and are now waived. Miss. Code Ann. § 99-39-21(1). Notwithstanding the procedural bar, the issues are also without merit. Insofar as McBride attaches claims of ineffective assistance of counsel to the various issues in his motion, the panel finds that the claims do not pass the standard set forth in Strickland v. Washington, 466 U.S. 668, 687 (1984). Accordingly, the panel finds that the motion should be denied.

See McBride v. State of Mississippi, (Cause No. 2011-M-01072) (Mississippi Supreme Court, Order of November 2, 2011).

In the instant petition for a writ of habeas corpus, McBride raises the following claims (as stated by petitioner²):

Ground One: Trial court's failure to take adequate steps in conflict of interest between defendant and defense counsel deprived defendant of his constitutional right to effective assistance of counsel and a fair trial.

A. Counsel failed to follow up on use of 404(b) evidence regarding an alleged crime that happened years after the crime charged.

B. Counsel failed to inquire about a cautionary instruction on 404(b) evidence.

C. Counsel failed to inquire about Rule 403 balancing test.

D. Counsel failed to raise a speedy trial challenge at trial.

E. Counsel failed to object to Jury Instruction C-11.

F. Appointed attorney erred when he said he had perfected McBride's direct appeal in the Court of Appeals of the State of Mississippi.

Ground Two: The court erred by allowing the state to use 404(b), though not ruling on motion to grant or deny, to allow other bad habits to show plan, intent and motive with an alleged crime, supposingly, happened some years after the first alleged crime.

Ground Three: Trial court erred by not applying the mandatory application of Rule 403 test and not giving limited cautionary instructions to the jury.

Ground Four: The state's constructive amendment violated McBride's 5^th Amendment right to be indicted by a grand jury.

Ground Five: McBride was denied due process equal protection of the law in violation of the Mississippi Code Annotated Section 99-17-1 and USCA Const. Amend 6.

Ground Six: Failure to satisfy proof beyond a reasonable doubt.

Ground Seven: State applied ambiguous language to diverge from facts to relieve burden of proving every element beyond a reasonable doubt.

Ground Eight: Trial court erred in compliance with Miss. Code Ann. § 99-7-9 and Code 1942 § 2441.

Ground Nine: McBride was denied a fair and impartial trial.

Ground Ten: McBride's conviction proved miscarriage of justice.

Ground Eleven: McBride was falsely arrested and imprisoned.

The Doctrines of Procedural Default and Procedural Bar:

Grounds One (B), (C), (E), (F); Two, Three, Four, Five, Eight, Nine, and Eleven

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 (5^th 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 (5^th 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 (5^th Cir. 1995)). This doctrine is known as procedural bar.

Cause and Prejudice - and Fundamental Miscarriage of Justice -

As Ways to Overcome 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 raising and discussing the claims as grounds for relief in state court. See United States v. Flores, 981 F.2d 231 (5^th 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 (5^th Cir. 2003). Even if a petitioner fails to establish cause for his default and prejudice from its application, he may still overcome a procedural default or bar by showing that application of the bar would result in a fundamental miscarriage of justice. To show that such a miscarriage of justice wouldoccur, a petitioner must prove that, "as a factual matter, that he did not commit the crime of conviction." Fairman v. Anderson, 188 F.3d 635, 644 (5^th Cir. 1999) (citing Ward v. Cain, 53 F.3d 106, 108 (5^th Cir. 1995)). Further, he must support his allegations with new, reliable evidence - that was not presented at trial - and must show that it was "more likely than not that no reasonable juror would have convicted him in light of the new evidence." Fairman, 188 F.3d at 644 (citations omitted).

Procedural Default

Grounds One (B), (C), (E), and (F) of the instant petition for a writ of habeas corpus (all of which involve claims of ineffective assistance of counsel) are precluded from federal habeas corpus review under the doctrine of procedural default because McBride did not raise them before the Mississippi Supreme...