Russell v. Denmark, 3:14-CV-225-CWR-LGI

• Court: United States District Courts. 5th Circuit. Southern District of Mississippi
• Writing for the Court: Carlton W. Reeves, United States District Judge
• Citation: 528 F.Supp.3d 482
• Parties: Sedrick D. RUSSELL, Petitioner, v. J. DENMARK, Respondent.
• Docket Number: No. 3:14-CV-225-CWR-LGI,3:14-CV-225-CWR-LGI
• Decision Date: 24 March 2021

528 F.Supp.3d 482

Sedrick D. RUSSELL, Petitioner,
v.
J. DENMARK, Respondent.

No. 3:14-CV-225-CWR-LGI

United States District Court, S.D. Mississippi.

Signed March 24, 2021

528 F.Supp.3d 488

Alysson Leigh Mills, Mills & Amond, LLP, New Orleans, LA, for Petitioner.

Erin E. Rutherford, Jerrolyn M. Owens, Kelly McReynolds McLeod, Mississippi Attorney General's Office, Jackson, MS, for Respondent.

Before Carlton W. Reeves, District Judge.

MEMORANDUM OPINION AND ORDER

Carlton W. Reeves, United States District Judge

Sedrick D. Russell was convicted in the Circuit Court of Hinds County, Mississippi, of one count of aggravated assault and one count of being a felon in possession of a weapon. The trial judge sentenced him as a habitual offender to serve two concurrent life terms, without the possibility of parole, in the custody of the Mississippi Department of Corrections. In this proceeding Russell seeks federal habeas relief under 28 U.S.C. § 2254.

On review, this Court finds that the Circuit Court of Hinds County denied Russell the speedy trial he was guaranteed by the Sixth Amendment. In addition, for more than a year, Russell was completely denied access to an attorney, in violation of his right to counsel. The state court's conclusions otherwise were contrary to federal law. The writ must therefore be granted.

I. Background

The below facts and proceedings are drawn from Russell v. State , 79 So. 3d 529 (Miss. Ct. App. 2011) [hereinafter Russell I ], the Mississippi Supreme Court's unpublished Order denying Russell's state application for post-conviction relief, Docket No. 8-2 [hereinafter Russell II ], and the record provided to this Court by the Mississippi Attorney General's Office.

A. The Crime and the Alibi

On December 19, 2006, a dark, winter night at about 11:00 PM, Michael Porter was shot twice in the leg at his then-girlfriend's house in Jackson, Mississippi. He heard four shots and felt two hit his leg, but he did not see who shot him, as the shooter was somewhere behind him. No one who testified at Sedrick Russell's eventual trial saw who fired the gun.

That day in Jackson, Porter had finished his day's work at the neighborhood car

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repair shop, went home "for a hot second," and then went to his then-girlfriend Lawanda Hawkins' house. Lawanda's father had died. Friends and family were gathering to pay their respects.

Sedrick Russell, Lawanda's cousin, was at the house. Testimony would later establish that Lawanda's father had "told Cedric to look after the house because he knew that it was a lot of shooting and burglary going on."¹

Russell wasn't acting in a threatening manner, said Porter, the victim. Docket No. 9-3 at 96. When Porter went to the back of the house to get a cup of ice, though, Russell followed. It made Porter uncomfortable. Russell followed Porter to the porch when Porter walked outside to get some gin from his car. Porter didn't understand why. He had never had a disagreement with Russell.

When Porter reached into the front door of the car to grab the gin from the back floorboard, he was shot in the leg. No one witnessed the shooting from outside or inside.

Porter crawled into the passenger seat and sat in the car for a minute, in case the shooter was going to come around the other side of the car. He waited there until he heard Lawanda's sister, Vicki Hawkins, call his name. People in the house told Porter to get inside. Porter crawled out of the vehicle, stood up, and walked back into the house, never seeing the shooter. Vicki went outside too. She didn't see Russell, and testified that she didn't know who shot Porter. Porter was taken by ambulance to the hospital where he was treated and released.

Porter initially testified that he told police everything that occurred prior to the shooting. On the witness stand, however, he admitted that he did not inform the police that he also had a 9mm pistol in his car when he was shot. Vicki testified that Porter always carried a gun in his car. She added that she saw both Porter and Russell go outside, but did not see Russell when she went outside after hearing gun shots.

Russell testified in his own defense. He said that prior to the shooting, he went on the front porch to call his friend of several years, Ron Ron, to pick him up. He saw someone come by the house and ask if Porter was inside. Then Ron Ron came and picked him up. Russell was gone before any shots were fired. He learned about the shooting the next day when his family told him the police were looking for him.

Russell was arrested on December 21, 2006. He was charged with one count of aggravated assault and one count of possession of a firearm by a convicted felon.

Russell wished to bring an alibi defense. Normally, a defendant tells his attorney about his alibi, so the attorney can properly notify the prosecution. That did not happen here. Russell could not tell his defense attorney to call Ron Ron. He didn't have an attorney! The assistant public defender who came to his preliminary hearing brushed off Russell's request to get Ron Ron to testify, telling Russell "it was just a preliminary." She never came back. Russell wasn't appointed an attorney until more than a year later, well after his trial setting had come and gone. The Court had to postpone the trial and appoint new counsel to prepare the case.

Russell tried to coordinate an alibi defense by himself. He had the phone number of Ron Ron's girlfriend's house. While

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incarcerated at Hinds County Detention Center waiting for his trial, Russell called that number for approximately eight months to get Ron Ron on standby to testify. However, after eight or nine months, Ron Ron and his girlfriend broke up. Ron Ron was no longer reachable at that number.

Eventually the court appointed another lawyer to represent him. Donald Boykin was appointed on February 14, 2008. By then, Russell had been incarcerated a jaw-dropping 14 months before speaking with a lawyer.

As soon as Boykin arrived at Hinds County Detention Center, Russell told him about Ron Ron. He told him about the disconnected phone and provided Boykin with directions of where he had been with Ron Ron, more than a year ago at this point. But it was too late; Boykin could not find Ron Ron. Russell had no one to speak on his behalf at trial. The trial court also prevented him from telling the jury about his efforts to secure Ron Ron's testimony.

B. Procedural History

Russell had his preliminary hearing on January 8, 2007. Assistant Public Defender Beth Davis represented Russell at the hearing—"just a preliminary."² The court denied bond. Russell was returned to the Hinds County Detention Center.

Nothing happened for approximately four months. Russell did not hear from Davis or anyone else in the public defender's office. On May 2, acting pro se , Russell filed in the Circuit Court a "Motion for Right to a Speedy and Public Trial."

Three more months passed. On August 16, a Hinds County grand jury returned a two-count indictment against Russell. Later that month, Assistant Public Defender Frank McWilliams filed a boilerplate motion seeking discovery from the prosecution. McWilliams had never met nor spoken to Russell.

On October 2, nine months after his preliminary hearing and still with no contact with his lawyer, Russell filed another pro se motion regarding a speedy trial violation. He sought to dismiss the indictment.

Russell was arraigned on November 9. Nothing in the record indicates that he was represented by counsel that day. The same day, Assistant Public Defender McWilliams refiled the boilerplate motion for discovery, perhaps unaware that he had already filed one. Who knows? He may have filed it only after learning of Russell's motion, or to make it appear that he was working diligently on Russell's case. The court set Russell's trial date for March 24, 2008.

On November 15, 2007, Russell sent the court another handwritten request. This one, styled "Petition to Grievances the Government," stated "I've been held in (11) months ... suffering from mental anxiety and concern from oppressive pretrial incarseration, [sic] and a lawyer has not yet contacted me and provided me with the legal repersentation [sic] I need to ensure me with due process and equal protection of the law." Docket No. 9-10 at 59 (emphasis added).

On December 21, 2007, the trial judge issued a written order denying Russell's pro se motion to dismiss.³ In recognition of Russell's complaint, though, the court

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moved Russell's trial a month earlier, to February 11, 2008. Also on December 21, perhaps unaware of the Court's ruling, Russell filed another motion asking "to submit speedy trial argument." He noted his "mental anxiety and concern from the oppressive pretrial detention." He had likely mailed it before the Court issued its ruling, but as noted below he had not received the Court's order.

Russell was displeased...