Salts v. Epps
| Decision Date | 11 March 2010 |
| Docket Number | 1:08CV183-P-D.,No. 1:08CV182-P-D,1:08CV182-P-D |
| Citation | 696 F. Supp.2d 639 |
| Parties | Marie SALTS, Petitioner v. Christopher EPPS, Jim Hood, Respondents. Michael Salts, Petitioner v. Christopher Epps, Jim Hood, Respondents. |
| Court | U.S. District Court — Northern District of Mississippi |
Jim D. Waide, III, Waide & Associates, PA, Tupelo, MS, for Petitioner.
Jerrolyn M. Owens, Mississippi Attorney General's Office, Jackson, MS, for Respondents.
FINAL JUDGMENT
W. ALLEN PEPPER, Jr., District Judge.
The court has considered the file and records in this action, including the Report and Recommendation of the United States Magistrate Judge dated June 18, 2009, the petitioners' June 29, 2009, objections to the Report and Recommendation, as well as the respondents' July 24, 2009, objections, and the petitioners' August 5, 2009, rebuttal to the respondents' objections. The respondents have objected to the submission of an affidavit by Steven Farese because it was not in the state court record; however, the respondents have likewise submitted an affidavit from Farese. A question thus exists regarding whether either affidavit is properly before this court. Though the affidavits are mentioned in the Magistrate Judge's Report and Recommendation, the holdings therein do not rely upon either affidavit. The court therefore holds that the Magistrate Judge's Report and Recommendation should be approved and adopted as the opinion of the court.
It is, therefore ORDERED:
1. That the Report and Recommendation of the United States Magistrate Judge dated June 18, 2009, is hereby APPROVED AND ADOPTED as the opinion of the court;
2. That the instant petition for a writ of habeas corpus is GRANTED conditionally;
3. That the convictions of Marie Salts and Michael Salts are VACATED
4. That the State of Mississippi must commence a new trial of the petitioners within 120 days of the date of this final judgment.
5. That the pending motions for bail and any motion for release on bond or personal recognizance under Rule 23(c) of the Federal Rules of Appellate Procedure are REFERRED to the Magistrate Judge.
The petitioners Marie and Michael Salts, a married couple, ran a funeral home in Booneville, Mississippi. As a part of their business they collected premiums from customers for burial policies. At different times they did business with two different burial insurance companies and also sold their own small Class A policies. Michael was the individual who handled most of the day to day contact with people coming into the funeral home. He frequently received burial insurance premiums from their customers. Marie handled the bookkeeping for the business including being responsible for submitting paid burial policy premiums received from customers to the insurance companies. When monies their customers expected to be paid were not and policies were canceled, the Saltses were prosecuted for embezzlement.
The Saltses were jointly indicted in May 2003 in Prentiss County, Mississippi on six counts of embezzlement. The indictments alleged that over a period of seventeen years the Saltses had embezzled thousands of dollars from six named individuals. At trial the time period of the alleged embezzlements was limited by the prosecution from December, 1994, until the first half of March, 2002.1
In December 1994, the first of the insurance companies, Gulf National, had terminated their agency relationship with the Saltses. Thereafter, the Saltses shifted some of their business to the other insurance company, Magnolia Guaranty. Some of the Saltses customers listed in the indictments had their insurance changed from Gulf Guaranty to Magnolia and some did not. One count of the indictment was dismissed at trial because of the declining health of a complaining witness. The five remaining named individuals each testified that monies they paid to the Salts Funeral home during this time period were intended as premiums on Gulf Guaranty policies. None claimed to have agreed to move their policies to Magnolia. Marie testified and claimed that neither she nor Michael had embezzled any monies. She blamed some of the funeral home's former employees for any embezzlement and/or for the failure to forward monies. Michael did not testify at trial.
Marie and Michael were each convicted in October 2005 on three counts of felony embezzlement and one count of misdemeanor embezzlement. They were each acquitted by the jury on one count. Marie was sentenced to two consecutive five year sentences, fined $11,000.00 and ordered to pay restitution in the amount of $692.00. Michael was convicted on the same counts and received the same sentence except his sentence was imposed without the possibility of parole because of his habitual offender status.
Marie and Michael initially retained Steve Farese to represent them. Farese was allowed to withdraw from representation in September 2003 because of a conflict of interest. The Saltses then retained Michael Thome to represent them. Thorne filed for and was granted a series of continuances between the spring of 2004 and August, 2005. The continuances were requested both on the basis of needing time to prepare for trial and because of serious health problems suffered by Thome's wife and father. There were also delays in the case caused by ongoing renovations at the Prentiss County courthouse. Two times the case would have been continued anyway because two separate circuit judges found it necessary to recuse themselves shortly before scheduled trials.
On Thursday, September 29, 2005, four days before the scheduled trial date, the Saltses delivered a letter to the trial judge advising that they were terminating Thome. The following day they and Thome appeared before the judge for the last hearing on pre-trial motions. They advised the trial court that they did not see eye-to-eye on the handling of the defense and that Thome was discharged because he was not prepared for trial. They advised the court that they had retained Jim Waide as their counsel. The trial court was adamant that the case would not be continued. A motion on the day of trial sought either a dismissal or a continuance on the ground that a conflict of interest existed between Michael and Marie such that counsel should not be required to represent both of them at trial. The motion was rejected after brief argument and without a hearing or the opportunity to present proof.
The convictions and sentences2 were affirmed by the Mississippi Court of Appeals and the Mississippi Supreme Court denied the petition for a writ of certiorari. The Saltses have filed petitions for writ of habeas corpus in this court asserting two grounds for relief.3
Because there is no question that the Saltses have fully complied with all procedural requirements of Mississippi and federal habeas law, this court must consider each of their claims on the merits. This court's power to upset the judgments of the state courts in a criminal matter is appropriately very limited. The federal courts address only issues affecting substantial federal constitutional rights. The federal courts do not function as superappellate courts over the states and hold no supervisory authority over those courts. The federal courts may not correct errors of state law unless they also violate the constitutional rights of an accused.4
Even in matters affecting fundamental constitutional rights the federal courts have a very limited scope of review. Title 28 U.S.C. § 2254(d) of the Anti-Terrorism and Effective Death Penalty Act (AEDPA) provides:
The federal courts may not disturb the legal holdings of the state courts even if convinced they are erroneous. The federal courts may intervene only if it the application of federal law is also contrary to clearly established federal law or objectively unreasonable. Williams v. Taylor, 529 U.S. 362, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000). The AEDPA presumes each factual finding by the state court is correct. The petitioners' claims have been reviewed in light of the AEDPA's limitations.
On May 12, 2003, the Saltses were indicted and arraigned on July 3, 2003. They were initially represented by Steve Farese. On September 2, 2003, Farese filed a motion to withdraw based upon a conflict of interest.5 The motion stated, (R: 1:60). The state's response to the motion did not dispute the existence of a conflict of interest (R. 1:64), and on September 18, 2003, an order was entered by the trial court judge allowing Farese to withdraw. The case was continued until February, 2004. (R. 1:66).
It is unclear when Thorne was retained, but on February 23, 2004, (R. 1:67-68) Thorne filed a motion for a continuance, citing the failure of Farese to turn over discovery, the general complexity of the case and a possible need for the assistance of an accountant. As it turned out the case had to be continued in any event because a trial judge recused herself from the case. (R. 1:87).
Thorne filed another motion for continuance...
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