Webber v. Denmark

• Decision Date: 17 July 2017
• Docket Number: No. 1:14CV126-SA-JMV,1:14CV126-SA-JMV
• Parties: FREDDIE L. WEBBER, JR. PETITIONER v. MR. DENMARK, ET AL. RESPONDENTS
• Court: U.S. District Court — Northern District of Mississippi

FREDDIE L. WEBBER, JR. PETITIONER v. MR. DENMARK, ET AL. RESPONDENTS

No. 1:14CV126-SA-JMV

UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF MISSISSIPPI ABERDEEN DIVISION

July 17, 2017

MEMORANDUM OPINION

This matter comes before the court on the pro se petition of Freddie L. Webber, Jr. for a writ of habeas corpus under 28 U.S.C. § 2254. The State has responded to the petition; Webber has not replied, and the deadline to do so has expired. For the reasons set forth below, the instant petition for a writ of habeas corpus will be denied.

Facts and Procedural Posture

Freddie Webber is in the custody of the Mississippi Department of Corrections and is currently housed at the Mississippi State Penitentiary in Parchman, Mississippi. Webber was convicted for the sale of cocaine in Lowndes County Circuit Court Cause No. 2010-0280-CR1H and sentenced to thirty years in the custody of the Mississippi Department of Corrections as a non-habitual offender and to pay a fine of $5,000.00. Webber was originally sentenced as a habitual offender, but was resentenced as a non-habitual offender following post-conviction collateral review.

Webber appealed his conviction and sentence to the Mississippi Supreme Court. In his appellate brief, Webber raised the following grounds for relief, as stated by Webber through counsel:

I. Whether the trial court erred by not exclude[ing] prior bad acts evidence?

II. Whether the State's reliance on a paid confidential informant entitled the defense to a cautionary instruction?

III. Whether the weight of the evidence supports a guilty verdict?

The state supreme court affirmed Webber's conviction and sentence. Webber v. State, 108 So.3d 930 (Miss. 2013) (Cause No. 2012-KA-00115-SCT).

Webber then filed a pro se application in the Mississippi Supreme Court seeking permission to proceed in the trial court with a petition for post-conviction collateral relief. In his application, Webber raised the following grounds for relief, as summarized by the court:

I. The indictment was insufficient under Mississippi Uniform County and Circuit Court Rule 7.06.

II. The trial court lacked subject matter jurisdiction to impose Webber's sentence as a habitual offender under Miss. Code Ann. § 99-19-81.

The Mississippi Supreme Court held in pertinent part:

After due consideration we find that Webber was unfairly surprised by the State's motion to amend the indictment to charge Webber as an habitual offender in accordance with § 99-19-83, and that in these circumstances the trial court erred in sentencing Webber as an habitual offender. This Court finds that Webber's Motion for Post-Conviction Collateral Relief should be granted as to this claim. We further find that Webber's sentence as a habitual offender under Miss. Code Ann. §99-19-81 should be vacated, and this matter should be remanded to the Lowndes County Circuit Court for re-sentencing as a non-habitual offender for the crime of which the jury convicted him.

Webber then filed the instant federal petition for a writ of habeas corpus under 28 U.S.C.A. § 2254, raising the following grounds for relief (as stated by Mr. Webber):

Ground One: Direct [verdict] / J.N.O.V ineffective assistance counsel trial/appeal.

Ground Two: Petitioner her[e] wish to reargue the same grounds that were raised on appeal.

Ground Three: Petitioner is wishing to re-argue his claim of subject matter jurisdiction.

Ground Four: Due Process and Equal Protection 8/14 amendment.

As noted above, the State originally moved to dismiss Webber's petition because his allegations in Grounds One and Four are unexhausted. Doc. 10. The court afforded Webber an opportunityto amend his petition to delete the unexhausted claims, Doc. 12, which he did, withdrawing Grounds One and Four, Doc. 14.

Discussion

After Webber's withdrawal of the unexhausted grounds for relief, the issues currently before the court are as follows, as summarized by the court:

Ground Two: Claims raised on direct appeal:

A. Whether the trial court erred by not excluding prior bad acts evidence?

B. Whether the State's reliance on a paid confidential informant entitled the defense to a cautionary instruction?

C. Whether the weight of the evidence supports a guilty verdict?

Ground Three: The trial court lacked subject matter jurisdiction because his indictment was insufficient under U.C.C.C.R. 7.06 for failure to list the statutory schedule of cocaine.

Ground 2(A) - Procedural Bar

The Mississippi Supreme Court held that Webber's allegation in Ground Two (A), that the trial court erred in failing to exclude evidence of prior bad acts, was procedurally barred for failure to lodge a contemporary objection:

Although Webber initially objected to the video because it contained a discussion between Webber and Jones about prior drug transactions, the objection was waived at trial. The waiver is reflected in the record:

Webber's Counsel: ... [A]fter discussing the issue with my client, the possibility of waiving other issues, we have made the informed decision to withdraw the objection to the video and play it in its entirety.

Court: That is from the start of this particular witness's involvement that day up until the conclusion, from the pre-buy to the post-buy.

Webber's Counsel: From the pre-buy to the postbuy, yes, Your Honor.

Court: There's no objection to the entire video then?

Webber's Counsel: No objection to the entire video.

Because the entire video was admitted without objection, this issue was not preserved for appeal. See, e.g., Ross v. State, 954 So.2d 968, 987 (Miss.2007) (failure to raise a contemporaneous objection waives the issue on appeal).

Webber v. State, 108 So.3d 930,931 (Miss. 2013).

The Doctrines of Procedural Default and Procedural Bar

If an inmate seeking habeas corpus relief fails to exhaust an issue in state court - and no more avenues exist to do so - under the doctrine of procedural default that issue cannot be raised in a federal habeas corpus proceeding. Sones v. Hargett, 61 F.3d 410, 416 (5^th Cir. 1995). Similarly, federal courts have no jurisdiction to review a habeas corpus claim "if the last state court to consider that claim expressly relied on a state ground for denial of relief that is both independent of the merits of the federal claim and an adequate basis for the court's decision." Roberts v. Thaler, 681 F.3d 597, 604 (5^th Cir.2012). Thus, a federal court may not consider a habeas corpus claim when, " (1) a state court [has] declined to address [those] claims because the prisoner [has] failed to meet a state procedural requirement, and (2) the state judgment rests on independent and adequate state procedural grounds." Maples v. Thomas, — U.S. —, 132 S.Ct. 912, 922, 181 L.Ed.2d 807 (2012) (alterations in original) (internal quotation marks omitted). This doctrine is known as procedural bar. To determine the adequacy of the state procedural bar, this court must examine whether the state's highest court "has strictly or regularly applied it." Stokes v. Anderson, 123 F.3d 858, 860 (5^th Cir. 1997) (citing Lott v. Hargett, 80 F.3d 161, 165 (5^th Cir. 1996)). The petitioner, however, "bears the burden of showing that the state did not strictly or regularly follow a procedural bar around the time of his appeal" - and "must demonstrate that the state has failed to apply the procedural bar rule to claims identical or similar to those raised by the petitioner himself." Id.

Cause and Prejudice - and Fundamental Miscarriage of Justice -

As Ways to Overcome Procedural Bar

Whether a petitioner's claims are procedurally defaulted or procedurally barred, the way he may overcome these barriers is the same. First he can overcome the procedural default or bar by showing cause for it - and actual prejudice from its application. To show cause, a petitioner must prove that an external impediment (one that could not be attributed to him) existed to prevent him from raising and discussing the claims as grounds for relief in state court. See United States v. Flores, 981 F.2d 231 (5^th Cir. 1993). To establish prejudice, a petitioner must show that, but for the alleged error, the outcome of the proceeding would have been different. Pickney v. Cain, 337 F.3d 542 (5^th Cir. 2003). Even if a petitioner fails to establish cause for his default and prejudice from its application, he may still overcome a procedural default or bar by showing that application of the bar would result in a fundamental miscarriage of justice. To show that such a miscarriage of justice would occur, a petitioner must prove that, "as a factual matter, that he did not commit the crime of conviction." Fairman v. Anderson, 188 F.3d 635, 644 (5^th Cir. 1999) (citing Ward v. Cain, 53 F.3d 106, 108 (5^th Cir. 1995)). Further, he must support his allegations with new, reliable evidence - that was not presented at trial - and must show that it was "more likely than not that no reasonable juror would have convicted him in light of the new evidence." Fairman, 188 F.3d at 644 (citations omitted).

The failure to lodge a contemporaneous objection in the trial court is an independent and adequate state procedural bar, Smith v. Black, 970 F.2d 1383, 1387 (5^th Cir.1992), and Mr. Webber has not shown that the Mississippi's appellate courts have failed to strictly and regularly apply the contemporaneous objection rule. As such, this claim must be dismissed under the doctrine of procedural default. In addition, Mr. Webber cannot overcome the procedural default because he has shown neither cause for his default nor prejudice he would suffer if the courtapplied it. Mr. Webber has not shown that the default was caused by "something external to [him], something that cannot fairly be attributed to him." Coleman, 501 U.S. at 753 (emphasis in original). Finally, Mr. Webber has not produced new, reliable evidence - that was not presented at trial - to show that it was "more likely than not that no reasonable juror would have convicted him in light of the new evidence." Fairman, 188 F.3d at 644 (citations omitted).

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