Pustay v. Banks

• Decision Date: 07 July 2021
• Docket Number: Civil Action 1:18-cv-177-HSO-FKB
• Parties: THOMAS PUSTAY, #129388 PETITIONER v. JACQUELYN BANKS RESPONDENT
• Court: U.S. District Court — Southern District of Mississippi

THOMAS PUSTAY, #129388 PETITIONER v. JACQUELYN BANKS RESPONDENT

Civil Action No. 1:18-cv-177-HSO-FKB

United States District Court, S.D. Mississippi, Southern Division

July 7, 2021

REPORT AND RECOMMENDATION

F KEITH BALL, UNITED STATES MAGISTRATE JUDGE

Before the Court is the amended petition [15] for habeas corpus relief filed by Thomas Pustay. See 28 U.S.C. § 2254. Pustay's original petition [1] was “mixed ” presenting both exhausted and unexhausted claims. The State responded to the original petition [1] with a Motion to Dismiss [8], and Petitioner filed a Response [10]. The Court entered a Report and Recommendation [11], which recommended denial without prejudice of the Motion to Dismiss and that Pustay be allowed to file an amended petition omitting his unexhausted claims. The district judge adopted the Report and Recommendation as the opinion of the Court. See [13]. Thereafter, Pustay filed his amended petition [15] deleting unexhausted grounds five, seven, nine, ten, and eleven, as set forth in his original petition, and the State filed its Response [16]. After considering the filings, the undersigned recommends that the amended petition be dismissed with prejudice.

I. FACTS AND PROCEDURAL HISTORY

In this action, Pustay challenges his convictions in the Circuit Court of the First Judicial District of Harrison County, Mississippi, on two counts of Touching a Child for Lustful Purposes and three counts of Sexual Battery. [8-1]. The state trial court sentenced Pustay to a total of forty (40) years in the custody of the Mississippi Department of Corrections (“MDOC”) on all convictions. [9-9] at 12-13. The victim was Pustay's biological niece, who was also his adopted daughter. Pustay v. State, 221 So.3d 320, 326 (Miss. Ct. App. 2016).

The relevant procedural history was recounted in the previously-entered Report and Recommendation [11]. In sum, Pustay's original petition [1] was “mixed, ” containing both exhausted and unexhausted claims. See Rose v. Lundy, 455 U.S. 509 (1982). Pustay avoided dismissal of his petition by filing an amended petition that omits his unexhausted claims. See [15]. He now presents the following grounds for relief:

1. Ground One: Was it error to allow the State to establish its case through impeachment of its own witness? (original Ground One)

2. Ground Two: Did the trial court err by limiting the defense's cross-examination of Karen Pustay? (original Ground Two)

3. Ground Three: Did the trial court improperly limit defense evidence? (original Ground Three)

4. Ground Four: Did the trial court err in refusing to review records of relevant youth court proceedings? (original Ground Four)

5. Ground Five: Whether it was error to replace jurors stricken peremptorily by the defense? (original Ground Six)

6. Ground Six: Whether the trial court erred in excluding evidence under M.R.E. 412? (original Ground Eight)

7. Ground Seven: Whether the evidence was sufficient on all counts or whether the verdicts are supported by the evidence? (original Ground Twelve)

8. Ground Eight: Whether Counts 2 and 6 merged? (original Ground Thirteen). [15-1] at 10. The Respondent filed an Answer [16], and this matter is ripe for review.

II. DISCUSSION

At the outset, the Court notes that its review of Pustay's conviction is circumscribed. Federal courts do not sit as “super” state supreme courts in habeas corpus proceedings to review errors under state law. Dickerson v. Guste, 932 F.2d 1142, 1145 (5th Cir. 1991). Instead, “[a] state prisoner is entitled to relief under 28 U.S.C. § 2254 only if he is held ‘in custody in violation of the Constitution or laws or treaties of the United States.'” Engle v. Isaac, 456 U.S. 107, 110 (1981)(citing 28 U.S.C. § 2254(a)).

Petitions for a writ of habeas corpus are governed by 28 U.S.C. § 2254. As amended by the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), the relevant portions of § 2254 provide, as follows:

(b) (1) 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 unless it appears that -

(A) the applicant has exhausted the remedies available in the courts of the State; or

(B) (i) there is an absence of available State corrective process; or

(ii) circumstances exist that render such process ineffective to protect the rights of the applicant,

(2) An application for a writ of habeas corpus may be denied on the merits, notwithstanding the failure of the applicant to exhaust the remedies available in the courts of the State.

(3) A State shall not be deemed to have waived the exhaustion requirement or be estopped from reliance upon the requirement unless the State, through counsel, expressly waives the requirement.

(c) An applicant shall not be deemed to have exhausted the remedies available in the courts of the State, within the meaning of this section, if he has the right under the law of the State to raise, by any available procedure, the question presented.

(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 be 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.

28 U.S.C. § 2254(b)-(d)(1996).

Claims that are adjudicated on the merits by the state court, either in direct appeal or in a post-conviction proceeding, are subject to the highly deferential standard of review of the AEDPA. The Supreme Court has repeatedly emphasized that “‘an unreasonable application of federal law is different from an incorrect application of federal law.'” Renico v. Lett, 559 U.S. 766, 773 (2010)(quoting Williams v. Taylor, 529 U.S. 362, 410 (2000)). “[A] federal habeas court may not issue the writ simply because that court concludes in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly.” Williams, 529 U.S. at 411. Rather, the application must be not only incorrect, but also “objectively unreasonable.” Id. at 409.

A. Ground One: Was it error to allow the state to establish its case through impeachment of its own witness?

Pustay argues that the trial court violated clearly established federal law when it allowed the state to treat its witness -- his wife, Karen Pustay -- as hostile, and it admitted a recorded statement she made to police officers as a part of the state's impeachment of her testimony. [15] at 16. Under Mississippi Rule of Evidence 613(b), the “[e]xtrinsic evidence of a witness's prior inconsistent statement is admissible only if the witness is given an opportunity to explain or deny the [inconsistent] statement.” Pustay, 221 So.3d at 332. Before admitting the recorded statement, the trial court allowed the state to cross-examine Karen Pustay about which of her pretrial statements were true or untrue, and whether they were voluntary or motivated by fear and duress. Id. The trial court later instructed the jury that the taped statement “may be used for the limited purpose of considering the truthfulness of Karen Pustay's in court testimony and not for the substance of her out of court statement.” [9-1] at 122.

Because this point raises a question of law, this Court's review is limited to determining whether the state court's ruling involved an unreasonable application of clearly established federal law. The admissibility of evidence is a matter of state law. Edwards v. Butler, 882 F.2d 160, 164 (5th Cir. 1989). The Supreme Court has held that federal habeas corpus relief will not be granted for errors of state law. Estelle v. McGuire, 502 U.S. 62, 67 (1991). “When a federal court reviews state court evidentiary rulings on a petition for habeas corpus, it will grant relief only if the state court error is sufficiently egregious to render the entire trial fundamentally unfair.” Edwards v. Butler, 882 F.2d at 164. An erroneous state evidentiary ruling may be the basis for federal habeas corpus relief only if “the challenged evidence is crucial, critical, or a highly significant factor in the context of the entire trial.” Thomas v. Lynaugh, 812 F.2d 225, 230 (5th Cir. 1987).

Mississippi Rule of Evidence 613(b) is closely modeled after Federal Rule of Evidence 613(b). While the Mississippi Court of Appeals looked primarily to state law to reach its decision on this issue, it was also guided by an analogous federal case. See United States v. Meza, 701 F.3d 411 (5th Cir. 2012). In Meza, the Fifth Circuit held that admission of a prior recorded statement to impeach a government's witness was proper under Rule 613(b) of the Federal Rules of Evidence when the witness claimed that he made the pretrial recorded statement out of fear, and the court gave a limiting instruction to the jury. Id. at 425-428.

In this case, the admission of the recorded statement did not render Pustay's trial fundamentally unfair. Rather, no federal constitutional error occurred, and the state court's interpretation of Meza was objectively reasonable. The record shows that when Petitioner's wife testified contrary to her pretrial statements to investigators, she was given an opportunity to explain the inconsistencies. The prosecutor cross-examined her as to her assertion that her statements were involuntary and made under duress. The recorded statement was probative as to her claim that she was motivated out of fear or duress because...