Swilley v. Higgason
| Decision Date | 02 June 2017 |
| Docket Number | CIVIL ACTION NO. 3:16-cv-230-CWR-RHW |
| Parties | JAMES ANTHONY SWILLEY # 78170 PETITIONER v. WARDEN NEAL HIGGASON RESPONDENT |
| Court | U.S. District Court — Southern District of Mississippi |
Before the Court is [9] Petitioner James Anthony Swilley's amended petition for federal habeas corpus relief filed April 28, 20161 pursuant to 28 U.S.C. § 2254. Respondent Neal Higgason filed his answer to the petition along with the State Court Record on June 22, 2016. [15], [16] Upon review and consideration of the pleadings, the records on file, and relevant legal authority, the undersigned is of the opinion that the petition for federal habeas relief should be denied and the petition, dismissed.
At about midnight on May 1, 2013, Ronnie Murray of the Hazlehurst, Mississippi police department responded to an alarm at Kitchens Brothers lumber yard. As Murray proceeded to the business, he saw a car enter the roadway from an off-road area around the railroad tracks near Kitchens Brothers; the bumper was hanging out of the car's open trunk. When Murray stopped the car, driver Billy Price told him he had torn the bumper off his car trying to help his passenger, James Swilley, free his truck2 which was stuck on the railroad track. [16-2, p. 44] Terrell Davis, Criminal Investigator with Hazlehurst Police Department, photographed the truck and a quantity of "scrap iron" on the ground near the truck. Davis advised Swilley of his rights and Swilley signed a waiver of rights. Swilley told Davis he drove down alongside the railroad track to get on the Kitchens Brothers property, that he took all the metal and pipes on the ground around the truck from various places at Kitchens Brothers, and that he had gone inside the building but did not take anything from inside. [16-2, p. 80]
Alan Lee Kitchens, owner of the property in question, identified the metal lying on the ground around the truck as his property. According to Kitchens, some of the metal pieces in the photographs in evidence were equipment specially made for use on the lumber yard. Kitchens also provided the value of the items shown in the photos, e.g, the pipe-looking things are bolsters that go on racks where lumber is stacked and worth about $500 each, the angle irons fit into the bolsters and are worth about $250 each, the sprocket is worth about $184, the steel rack is worth about $250, the chain sprocket was valued at about $350, and the brass bush bearing is worth around $450. The other "scrap-looking metal" was kept for use around the sawmill. Kitchens testified the office door had been forced open, and that Swilley was not authorized to go on the Kitchens property, enter the office, or remove the metal from the premises. [16-2, p. 62]
In a two-count indictment filed September 25, 2013, Swilley was charged, as a habitual offender under Miss. Code Ann. § 99-19-83, with commercial burglary and grand larceny. [16-1, p. 9] On November 12, 2013, the State sought, and was granted, leave to amend the indictment to charge Swilley as a habitual offender under § 99-19-81, instead of § 99-19-83.3 [16-1, p. 37] Swilley was tried on November 12, 2013, and the Copiah County jury found him guilty of both charges. [16-2, p. 2], [16-5, p. 153], [16-6, p. 203], [16-1, p. 56] Following a sentencing hearing on November 25, 2013, including testimony from the Circuit Clerk and introduction of documentary evidence of Swilley's prior convictions, the trial court sentenced Swilley to serve consecutive sentences of seven years for the burglary and ten years for the grand larceny, without parole. [16-2, p. 104], [16-1, pp. 64, 85]
Swilley appealed, claiming the indictment was defective because the trial court allowed amendment of the habitual offender allegation to charge him as a maximum sentence habitual rather than a life habitual offender, and asserting he received ineffective assistance of counsel at trial.4 The Mississippi Court of Appeals affirmed on March 10, 2015, holding the amendment to charge a defendant as a habitual offender under the maximum penalty statute rather than the life imprisonment statute is an amendment of form rather than substance, and advising Swilley that his ineffective assistance of counsel claim should be pursued through a petition for post-conviction relief. Swilley v. State, 160 So.3d 719 (Miss. Ct. App. 2015). Swilley filed no motion for rehearing, and was thus barred from filing a petition for writ of certiorari in the Mississippi Supreme Court. The Court of Appeals issued its mandate on March 31, 2015. [16-4, p. 2]
Swilley filed applications for leave to seek post-conviction relief in the trial court on grounds that (1) the indictment was defective, (2) the State failed to follow statutory requirements to prove his habitual offender status, (3) the trial court erred in denying a directed verdict, (4) ineffective assistance of trial counsel, (5) the conviction was against the weight orsufficiency of the evidence, (6) ineffective assistance of appellate counsel, and (7) the State failed to prove the elements of grand larceny. [16-5, p. 9], [16-6, pp. 3, 60], [16-7, p. 5] In orders issued from June 23, 2015 to February 24, 2016, the Mississippi Supreme Court dispensed with all these claims, finding issues (1)-(3), (5) and (7) were waived, lacked an arguable basis, and/or were barred by res judicata, and the ineffective assistance claims failed to meet the requirements of Strickland v. Washington, 466 U.S. 668 (1984). [16-5, p. 25], [16-6, pp. 2, 56], [15-5]
In his petition before this Court, Swilley urges his indictment was faulty; his trial counsel was ineffective in failing to object to the amendment of the indictment's habitual offender charge; appellate counsel was ineffective because she filed a Lindsey brief; and his sentence was illegal due to lack of a factual basis to enhance his sentence.5 Respondent argues that since these grounds were presented to, and reviewed by, the Mississippi Supreme Court, and found to have no merit, the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), 28 U.S.C. § 2241, et seq., prohibits federal habeas relief in this case.
The AEDPA restricts the scope of federal habeas review in 28 U.S.C.§2254(d):
Subsection (d)(1) applies to questions of law and mixed questions of fact and law such as are presented in the instant case. Morris v. Cain, 186 F.3d 581, 584 (5th Cir. 1999), reh'g denied April 28, 2000.
A state court decision is contrary to federal law only if it reflects a conclusion opposite to one reached by the United States Supreme Court on an issue of law, or reaches a conclusion different from the Supreme Court's on an indistinguishable set of facts. Williams v. Taylor, 529 U.S. 362 (2000). A state court decision unreasonably applies federal law if it correctly identifies the governing law but applies it unreasonably to the facts of the case; this must be an objectively unreasonable application of federal law, not merely an erroneous or incorrect application. Williams, 529 U.S. at 407-408; see also Ramdass v. Angelone, 530 U.S. 156, 157 (2000); Dale v. Quarterman, 553 F.3d 876, 879 (5th Cir. 2008); Knox v. Johnson, 224 F.3d 470, 476 (5th Cir. 2000). Schriro v. Landrigan, 550 U.S. 465, 473-74 (2007) () The AEDPA also requires federal habeas courts to presume the correctness of state courts' factual findings unless applicants rebut this presumption with "clear and convincing evidence." Id.; Miller v. Johnson, 200 F.3d 274, 281 (5th Cir. 2000); 28 U.S.C. § 2254(e)(1). "The presumption is especially strong when the state habeas court and the trial court are one in the same." Clark v. Johnson, 202 F. 3d 760, 764 (5th Cir. 2000).
In his first and fourth grounds for habeas relief, Swilley challenges the sufficiency of his indictment and propriety of his sentencing as a habitual offender under the amended indictment.The indictment clearly charges that on or about May 1, 2013, in Copiah County, Mississippi, Swilley committed the felonies of burglary of a commercial building in violation of MISS. CODE ANN. § 97-17-33 and grand larceny in violation of MISS. CODE ANN. § 97-17-41, and further charges that the crimes were committed after Swilley had twice previously been convicted of other felonies (also in Copiah County) which are specifically identified by case number, court, description of the offense and sentence imposed, in violation of MISS. CODE ANN. § 99-19-83, Mississippi's life-habitual statute. [16-1, p. 9] The indictment was subsequently amended to charge Swilley as a maximum-penalty habitual offender under MISS. CODE ANN. § 99-19-81, rather than as a life-habitual. The language of the indictment tracks that of the Mississippi burglary and grand larceny statutes alleged to have been violated, which fairly put Swilley on notice of the crimes charged against him, and he has made no allegation to the contrary.
Because Swilley's defective indictment claim presents a state law issue rather than a constitutional question, it provides no basis for federal habeas relief. Bronstein v. Wainwright, 646 F.2d 1048, 1050 (5th Cir. 1981) (...
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