Shelton v. King, Civil Action No. 5:04cv284-DCB-MTP.

• Decision Date: 12 March 2008
• Docket Number: Civil Action No. 5:04cv284-DCB-MTP.
• Citation: 548 F.Supp.2d 288
• Parties: Jarvis Ray SHELTON, Petitioner v. Ron KING, Superintendent of SMCI and Jim Hood, Attorney General, Respondents.
• Court: U.S. District Court — Southern District of Mississippi

548 F.Supp.2d 288

Jarvis Ray SHELTON, Petitioner v. Ron KING, Superintendent of SMCI and Jim Hood, Attorney General, Respondents.

Civil Action No. 5:04cv284-DCB-MTP.

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

March 12, 2008.

COPYRIGHT MATERIAL OMITTED

Jarvis Jay Shelton, Leakesville, MS, pro se.

Jerrolyn M. Owens, Office of the Attorney General, Jackson, MS, for Respondents.

ORDER

DAVID BRAMLETTE, District Judge.

This cause comes before the Court on the Report and Recommendation [docket entry no. 40] of the Magistrate Judge and the petitioner's Objection [docket entry no. 41] thereto. Having carefully considered the Report and Recommendation, having conducted a de novo review of the portions of the same to which the petitioner has objected in light of applicable statutory and case law, and being otherwise fully advised in the premises, the Court finds and orders as follows:

On October 29, 2004, Jarvis Ray Shelton, petitioner herein, filed a Petition for a Writ of Habeas Corpus [docket entry no. 1] pursuant to 28 U.S.C. § 2254 wherein he urges numerous grounds for relief. On January 24, 2008, the Magistrate Judge issued his Report and Recommendation [docket entry no. 40] that Shelton's petition be dismissed with prejudice. On February 8, 2008, the petitioner filed his Objection [docket entry no. 41] to the Magistrate Judge's Report and Recommendation.

In his Objection, Shelton raises nine specific points of disagreement with the findings and conclusions of law made by the Magistrate Judge in the Report and Recommendation: 1) it was error for the respondents to include the sworn affidavit of Yazoo City Circuit Clerk Susie Bradshaw with their answer to the petition and for the Magistrate Judge to consider the same; 2) the respondents failed to forward the petitioner's supporting evidence to the district court; 3) the Magistrate Judge erred by determining certain issues were not properly raised by the petitioner on direct appeal and would now be procedurally barred from review; 4) the Magistrate Judge improperly reworded, reorganized, and rephrased the petitioner's claims; 5) the Magistrate Judge's erred in finding that the underlying indictment charging the petitioner with capital murder was proper and sufficient and that the petitioner's trial and appellate counsel were not ineffective for raising the issue of the allegedly fatally deficient indictment at trial and on appeal; 6) the Magistrate Judge did not entertain the petitioner's criminal complaint and affidavit which Shelton filed against the respondents for their obstruction of justice; 7) the Magistrate Judge made several false statements in the Report and Recommendation; 8) the Magistrate Judge's findings and conclusions on all of the ineffective assistance of counsel claims were in error; and 9) the Magistrate Judge wrongly found that the petitioner's trial counsel had been duly appointed.

Having thoroughly conducted a de novo review of the portions of the Report and Recommendation to which the petitioner has specifically objected, the Court finds no merit to the points raised in the petitioner's Objection. Accordingly,

IT IS HEREBY ORDERED that the Report and Recommendation [docket entry no. 40] of the Magistrate Judge is ADOPTED.

IT IS FURTHER ORDERED that the petitioner's Objection [docket entry no. 41] to the Report and Recommendation is OVERRULED.

SO ORDERED.

REPORT AND RECOMMENDATION

MICHAEL T. PARKER, United States Magistrate Judge.

BEFORE THE COURT is the pro se petition of Jarvis Jay Shelton for a writ of habeas corpus under 28 U.S.C. § 2254. Having considered the petition, the answer, the reply, the record of the state court proceedings and the applicable law, the undersigned is of the opinion that the petitioner's request for relief pursuant to 28 U.S.C. § 2254 should be denied.

PROCEDURAL HISTORY

Following a jury trial, petitioner was convicted of one count of capital murder in the Circuit Court of Yazoo County, Mississippi.¹ By Order filed April 26, 2001, petitioner was sentenced to a term of life imprisonment without parole in the custody of the Mississippi Department of Corrections. Supreme Court Record ("SCR") vol. 5, pp. 704-05. Thereafter, petitioner appealed his judgment of conviction and sentence to the Mississippi Supreme Court, assigning as error the following (as stated by petitioner):

A. Whether the trial court erred by refusing to suppress the pre-trial identification of evidence and testimony of the out-of-court show up identification and by allowing the in-court identification testimony of Molly Crow and Katie Crow.

B. Whether the trial court erred by denying Shelton's motion for continuance based upon illness of the defense attorney.

C. Whether the trial court erred by failing to grant Shelton's motion for mistrial after a prospective juror stated in voir dire that this was the second capital murder trial for Shelton.

D. Whether the trial court erred in refusing to grant Shelton's motion for mistrial based on the witness's improper comment regarding Shelton's right to testify or remain silent under Amendment V of the United States Constitution and Article 3, Section 26 of the Mississippi Constitution of 1890.

E. Whether the court committed reversible error when it refused to grant a directed verdict

On July 31, 2003, the Mississippi Supreme Court affirmed petitioner's judgment of conviction and sentence in a written opinion. Shelton v. State, 853 So.2d 1171 (Miss.2003), reh'g denied, (Sept. 25, 2003).

On February 19, 2003, petitioner filed an "Emergency Petition to Dismiss For Being Denied Fundamental-Fairness During The Appeal Process" (hereinafter "Emergency Petition," Exhibit B to Answer) in which he raised the following issues (as stated by petitioner):

(1) Petition to dismiss petitioner's capitol crime conviction-sentence with prejudice, as a result of petitioner being denied fundamental-fairness during the appeal process, by the lower court court-reporters prejudicially failure to provide for (future) appellate purposes, the entire records of all the (recorded) proceedings that led up to petitioner's capitol-crime conviction and sentence in circuit court cause # 96-8080 Yazoo County, MS, State of MS versus Jarvis Shelton, pursuant to petitioner's designated request.

(2) Petition to dismiss petitioner's capitol crime conviction-sentence with prejudice, as a result of petitioner being denied fundamental-fairness during the appeal process, based upon the lower court's clerk prejudicially failure to docket in the record for (future) appellate purposes, certain documents and events that led up to petitioner's capitol-crime conviction and sentence in circuit court cause # 96-8080 Yazoo County, MS, State of Mississippi versus Jarvis Shelton, pursuant to petitioner's designated request.

(3) Petition to dismiss petitioner's capitol-crime conviction and sentence with prejudice, as a result of petitioner being denied fundamental-fairness during the appeal process, based upon the lower court clerk listing fraudulent events occurring under the representation of counsel Chokwe Lumumba in the clerk's records provided for appeal, which is misleading, and highly-prejudicial for (future) appellate purposes in petitioner's capitol-crime cause # 96-8080, Yazoo County Circuit Court, State of MS versus Jarvis Shelton, as well as a violation of the law(s) of this state.

(4) Petition to dismiss petitioner's capitol-crime conviction and sentence with prejudice, as a result of petitioner being denied fundamental fairness during the appeal process, based upon the jury-verdict and sentencing-order provided in the record for appeal (prejudicially) fraudulently allege's that petitioner were arraigned on said capitol charge, while being represented by attorney Chokwe Lumumba as counsel, which is misleading, and highly prejudicial for (future) appellate purposes, in Yazoo County Circuit Court Cause # 96-8080, State of MS versus Jarvis Shelton, as well as a violation of the law(s) of this State.

(5) Petition to dismiss petitioner's capitol-crime conviction and sentence with prejudice, as a result of petitioner being denied fundamental fairness during the appeal process, based upon a court-order provided in the appeal record relieving attorney James (Jim) Arnold Jr. as counsel of record in petitioner's capitol criminal cause, prejudicially and fraudulently alleges that said counsel were being relieved as a counsel on retainer, which is misleading, and highly-prejudicial for (future) appellate purposes, in Yazoo County Circuit Court Cause # 96-8080, State of MS versus Jarvis Shelton, as well as a violation of the law(s) of this state.

(6) Petition to dismiss petitioner's capitol-crime conviction and sentence with prejudice, and to dismiss petitioner's appellate counsels for prejudice, as a result of petitioner prejudicially receiving ineffective assistance by appellate counsels, based upon said counsels preparing petitioner's direct appeal brief upon a fraudulent and incomplete court record provided for appeal, then prejudicially submitted said brief to the MS Supreme Court for a decision, without petitioner's consent, and without considering, entertaining, or addressing petitioner's potential additional issues for review, or a (twice) timely notice from petitioner advising that there existed certain document(s) and record(s) in the trial record that were fraudulent and inaccurate, which was highly-prejudicial to petitioner, during the process of petitioner's direct appeal from a capitol-crime conviction/sentence in the Circuit Court of Yazoo County, MS, State of MS versus Jarvis Shelton, Cause # 96-8080.

(7) Petition to dismiss petitioner's capitol-crime conviction and sentence with prejudice, as a result of the lower court(s) unlawfully permitting attorney James (Jim) Arnold Jr. and attorney Waldo (Wallie) Stuckey Jr. to enter into petitioner's capitol criminal cause as being retained counsels...