Appendix — Rushing v. Kelly (No. 09-140)

Srasame Court, U.S.

FILED

4

"59 Ot pp

Number

FICE OF THE CLERK

In The Wiitem K. Suter, Clark

SUPREME COURT OF THE UNITED STATES

JAMES R. RUSHING, JR.

PETITIONER

Versus

LAWRENCE KELLY, Superintendent, and

JIM HOOD, Attorney General of

Mississippi

RESPONDENTS

ON PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

APPENDIX

to

PETITION FOR A WRIT OF CERTIORARI

James R. Rushing, Jr

Pro Se

901 - 21st Street

Meridian, MS 39301

601) 482-8764

Petitioner

Number

In The

SUPREME COURT OF THE UNITED STATES

JAMES R. RUSHING, JR.

PETITIONER

Versus

LAWRENCE KELLY, Superintendent, and

JIM HOOD, Attorney General of

Mississippi

RESPONDENTS

ON PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

APPENDIX

to

PETITION FOR A WRIT OF CERTIORARI

James R. Rushing, Jr.

Pro Se

901 - 21st Street

Meridian, MS 39301

601) 482-8764

Petitioner

TABLE OF CONTENTS

Order of Fifth Circuit with reasons. ..................ccccscscescossseece 1

Order of Fifth Circuit Panel Denying Reconsideration.......3

Constitutional and Statutory Provisions Involved.............. 4

Constitution of the United States of America .......... 4

Amendment XIV

Amendment VI

Anti-terrorism and Effective Death Penalty Act................. 4

28 U.S.C.A. § 2241

28 U.S. C. 2253(c)(1)

28 U.S. C. 2254(d

Mississippi Statutes .......... cee eee. raisins nsvansaesses.-+. 6

§ 97-3-65(1996 Version)

Other Materials ............... Se 7

Judgment of District Court Adopting....................6..000eeeeeee 7

Magistrate Report and Recommendation

Magistrate Judge Report and Recommendation ..... 01 eee 8

a Order of Fifth Circuit with reasons

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 08-60314

USDC No. 3:05-CV-101

JAMES R RUSHING, JR,

Petitioner -Appellant

Vv.

SUPERINTENDENT LAWRENCE KELLY,

Respondent -Appelilee

Appeal from the United States District Court

for the Southern District of Mississippi at Jackson

(Filed: U. S. Court of Appeals

Mar 16 2009

Charles L. Fulbruge, III Clerk)

ORDER:

James R. Rushing, Jr., Mississippi prisoner # 04851,

filed a 28 U.S.C. § 2254 petition challenging his 1997

conviction and 10-year sentence for rape. The district court

considered the merits of each of Rushing’s claims and

dismissed the petition with prejudice.

Represented by counsel, Rushing contends that

there was insufficient evidence to support his conviction

because, under the correct view of evidence, the sexual

encounter at issue was consensual. He also contends that

trial counsel was ineffective for failing to do the following:

(1) introduce emergency room reports and the victim's

prior statements to show that her testimony regarding the

severity of the assault that preceded the rape was

exaggerated; (2) introduce a detective’s report wherein the

victim clarified that she was not restrained at the time of

the rape; (3) move to sever the rape charge from an

aggravated assault charge, which resulted in a conviction

but was later overturned, because the testimony regarding

the assault could “be used to show some force on Rushing’s

part as a basis for the rape;” (4) prove the relationship

between Rushing and the victim, “the question of the

paternity of the child” that the couple had together, the

fact that Rushing owned the trailer in which the victim

resided, and that it would thus have been to the victim’s

benefit to placate Rushing with consensual sex; and (5) call

the emergency room doctor and a utility worker who went

to the trailer on the morning of the rape to testify

regarding “the conniving nature of the purported rape.”

With respect to the constitutional claims that

Rushing has raised in his motion seeking a certificate of

appealability (COA), Rushing has not shown that

reasonable jurists would find the district court’s

assessment of those claims to be debatable. See Miller-El

v. Cockrell, 537 U.S. 322, 336 (2003); Slack v. McDaniel,

529 U.S. 473, 484(2000). Accordingly, his motion for a

CUA to appeal the district court’s dismissal of those claims

is denied. Al of the other claims raised in the district

court, including additional assertions of ineffective

assistance of counsel, that were not raised in Rushing’s

COA motion before this court have been abandoned. See

Hughes v. Johnson, 191 F.3d 607, 613(5th cir. 1999).

COA DENIED.

s/Fortunato P. Benavides

United States Circuit Judge

II. Order of Fifth Circuit Panel Denying

Reconsideration

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 08-60314

USDC No. 3:05-CV-101

JAMES R RUSHING, JR,

Petitioner -Appellant

Vv.

SUPERINTENDENT LAWRENCE KELLY,

Respondent -Appellee

Appeal from the United States District Court

for the Southern District of Mississippi at Jackson

Before JOLLY, BENAVIDES, and HAYNES, Circuit

Judges.

PER CURIAM:

A member of this panel previously denied

appellant’s motion for certificate of appealability. The

panel has considered appellant's motion for reconsideration

IT IS ORDERED that the motion is Denied.

(Filed: U.S. Court of Appeals

Apr 29, 2009

Charles L. Fulbruge, III Clerk)

III. CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

A. Constitution of the United States of America

Amendment XIV

Section 1. All persons born or naturalized in the

United States, and subject to the jurisdiction thereof, are

citizens of the United States and of the State wherein they

reside. No State shall make or enforce any law which shall

abridge the privileges or immunities of citizens of the

United States; nor shall any State deprive any person of

life, liberty, or property, without due process of law; nor

deny to any person within its jurisdiction the equal

protection of the laws.

Amendment VI

[In all criminal prosecutions, the accused shall enjoy the

right to a speedy and public trial, by an impartial jury of

the State and district wherein the crime shall have been

committed, which district shall have been previously

ascertained by law, and to be informed of the nature and

cause of the accusation; to be confronted with the

witnesses against him; to have compulsory process for

obtaining witnesses in his favor, and to have the

Assistance of Counsel for his defence.

B. Anti-terrorism and Effective Death Penalty Act

28 U.S.C.A. § 2241

(a) Writs of habeas corpus may be granted by the Supreme

Court, any justice thereof, the district courts and any

circuit judge within their respective jurisdictions. The

order of a circuit judge shall be entered in the records of

the district court of the district wherein the restraint

complained of is had.

(c) The writ of habeas corpus shall not extend to a prisoner

unless—(3) He 1s in custody in violation of the Constitution

or laws or treaties of the United States; or ...

28 U.S. C. 2253(c)(1)

Unless a circuit justice or judge issues a certificate of

appealability, an appeal may not be taken to the court of

appeals from—

(A) the final order in a habeas corpus proceeding in which

the detention complained of arises out of process issued by

a State court; or

(B) the final order in a proceeding under section 2255.

(2) A certificate of appealability may issue under

paragraph (1) only if the applicant has made a substantial

showing of the denial of a constitutional right.

(3) The certificate of appealability under paragraph (1)

shall indicate which specific issue or issues satisfy the

showing required by paragraph (2).

28 U.S. C. 2254(d)

An appiication for a writ of habeas corpus on behalf of a

person in custody pursuant to the judgment of a State

court shall not be granted with respect to any claim that

was adjudicated on the merits in State court proceedings

unless the adjudication of the claim—

(1) resulted in a decision that was contrary to, or involved

an unreasonable application of, clearly established Federal

law, as determined by the Supreme Court of the United

States; or

(2) resulted in a decision that was based on an

unreasonable determination of the facts in light of the

evidence presented in the State court proceeding.

(e)(1) In a proceeding instituted by an application for a

writ of habeas corpus by a person in custody pursuant to

the judgment of a State court, a determination of a factual

issue made by a State court shall be presumed to be

correct. The applicant shall have the burden of rebutting

the presumption of correctness by clear and convincing

evidence.

(2) If the applicant has failed to develop the factual basis of

a claim in State court proceedings, the court shall not hold

an evidentiary hearing on the claim unless the applicant

shows that—

(A) the claim relies on—

(1) a new rule of constitutional law, made retroactive to

cases on collateral review by the Supreme Court, that was

previously unavailable; or

(ii) a factual predicate that could not have been previously

discovered through the exercise of due diligence; and

(B) the facts underlying the claim would be sufficient to

establish by clear and convincing evidence that but for

constitutional error, no reasonable factfinder would have

found the applicant guilty of the underlying offense.

C. Mississippi Statutes

§ 97-3-65. Rape; carnal knowledge of child under fourteen

years of age.(Amended Mississippi Laws 1998, Ch. 549,

§ 2, eff. July 1, 1998)

(2) Every person who shall forcibly ravish any person of

the age of fourteen (14) years or upward, or who shall have

been convicted of having carnal knowledge of any person

above the age of fourteen (14) years without such person’s

consent, by administering to such person any substance or

liquid which shall produce such stupor or such imbecility of

mind or weakness of body as to prevent effectual

resistance, upon conviction, shall be imprisoned for life in

the State Penitentiary if the jury by its verdict so

prescribes; and in cases where the jury fails to fix the

penalty at life imprisonment the court shall fix the penalty

at imprisonment in the State Penitentiary for any term as

the court, in its discretion, may determine.

IV. Other Materials

A. Judgment of District Court Adopting

Magistrate Report and Recommendation

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF MISSISSIPPI

JACKSON DIVISION

JAMES R. RUSHING, #04851

PETITIONER

VS.

CIVIL ACTION 3:05cv101 TSL-JCS

LAWRENCE KELLY AND JIM HOOD

RESPONDENTS

JUDGMENT

This matter having come on to be heard on this date

upon the report and recommendation of United States

Magistrate Judge James C. Sumner entered in this cause

on February 8, 2008, and the court, having adopted said

report and recommendation as the finding of this court by

order dated this day, finds that this cause should be

dismissed with prejudice.

IT 1S, THEREFORE, ORDERED AND ADJUDGED that

the above captioned cause be, and the same is hereby,

dismissed with prejudice.

SO ORDERED this the 14th day of March, 2008.

/s/Tom S. Lee

UNITED STATES DISTRICT JUDGE

(Filed: U. S. District Court

S. D. Mississippi

Mar 14, 2008

J. T. Noblin, Clerk)

B. Magistrate Judge Report and Kecommendation

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF MISSISSIPPI

JACKSON DIVISION

JAMES R. RUSHING, #04851

PETITIONER

VS. CIVIL ACTION NO. 3:05CV1LOITSL-JCS

LAWRENCE KELLY AND JIM HOOD

RESPONDENTS

(Filed: U.S. District Court

S. D. Mississippi,

Feb. 8, 2008

J.T. Noblin, Clerk)

REPORT AND RECOMMENDATION

This cause is before the undersigned on the petition

of James R. Rushing for habeas corpus relief pursuant to

28 U.S.C. §2254. Having considered Rushing’s petition, the

State’s answer thereto and the state court record, the

undersigned concludes, for the reasons which follow, that

the petition is not well taken and should be denied.

L_ PROCEDURAL HISTORY

James R. Rushing, Jr., was convicted by a jury of

aggravated assault and rape on September 11, 1997, in the

Cireuit Court of Lauderdale County, Mississippi. He was

sentenced to twenty years on the aggravated assault

conviction and ten vears on the rape conviction. to run

concurrently

Rushing appealed his conviction and sentence

through counsel to the Mississippi Supreme Court,

assigning as error the tollowing:

A. Whether a jury instruction on aggravated

assault with a “deadly weapon” without the

element of “serious bodily injury” is a variance

from an indictment that does not have “deadly

weapon” as an element but only has “serious

bodily injury” and the defendant is denied

1

proper constitutional notice of the charges, a

fair trial, the right to confrontation and due

process of law.

B. Whether jury instructions on aggravated

assault are “plain error” as a judicial comment

on the evidence by containing the phrases

“when used as a weapon under the existing

circumstances” and the phrase “a deadly

weapon, specifically a broken pool stick” and

thus the defendant is denied a fair trial,

confrontation of witnesses and due process of

law.

C. Whether the jury instructions under facts

which showed hilling with a broken pool stick,

pointing a gun and kicking with a foot are

fatally confusing and abstract when the

only specific reference to “deadly weapon”"in

the instructions points to the pool stick and

thus the defendant is denied a fair trial and

due process of law and trial by jury.

1). Whether the evidence of forcible rape is

sufficient to support a verdict of guilty when

there was no contemporaneous force and the

victim had many opportunities to seek aid,

assistance and flee from the presence of the

defendant with whom she had a long term

beneficial sexual hatson and she traveled with

him back to her trailer and nearly twelve

hours atter the coupling first told the

interrogating officer she had not been sexually

assaulted.

E. Whether the defendant was denied his

right to confrontation of witnesses and a fair

trial when moments before the victim’s son

was to testify, the state first disclosed to the

defendant that the son would testify to

defendant’s admission of assaulting the

mother and testify that the defendant had

made three valuable offers to the mother if

she would drop the charges.

i’. Whether the defendant was denied his

right to confrontation of witnesses and a fair

trial when the court refused admissibility of

the victim’s contradictory statement to the

interrogating officer that she had not been

sexually assaulted.

G. Whether the evidence was sufficient to

support a verdict of aggravated assault, when

the victim only had bruises, redness on the

throat from alleged choking and a broken

finger and gave a contradictory and

exaggerated account of the incident with the

defendant at the bar and much later engaged

in voluntary sex with him after rejecting an

opporcunity to return to her trailer alone

without defendant.

On February 8, 2000, on Rushing’s motion tor

rehearing, the Mississippi Court of Appeals, to whom the

case had been assigned by the Mississippi Supreme Court,

affirmed Rushing’s rape conviction and sentence, but

reversed and remanded the aggravated assault conviction

Fol Rushing v. State, 753 So. 2d 1136 (Miss. App. 2000)

1O

Thereafter, Rushing filed, again through counsel, a

“Appellant’s Motion for Post-Conviction Relief and Bail.” In

this pleading before the Mississippi Supreme Court, he

urged the following grounds:

A. Facts exclude rape.

B. Material evidence some of which is newly

discovered and some of was not offered in the

original tnial, and which would have resulted in

acquittal of the rape charge.

C Ineffective assistance of counsel:

(1) failure to make certain essential

pretrial motions such as requirements

to prove inconsistent statements by the

prosecutrix;

(2) failure to make a Motion for

Severance:

(3) failure to make a Pre-trial

Motion to strike a defamatory alias

Injected by prosecution:

(Fn 1 Rushing has not been reprosecuted for the

ascault charge.)

3

(4) failure to make a Motion to

restrict prosecutors from using alias in

voir dire, opening statements,

examination of witnesses, and closing

statements;

(5) failure to adequately prepare for

trial in a reasonable manner including

failure to notify the appellant timely

and to investigate the facts and prepare

trial subpoenas for essential

documentary evidence and material

witnesses to testify;

(6) failure to adequately cross-

examine the prosecutrix;

(7) failure to adequately present and

argue a Motion for Directed Verdict on

the rape;

(8) failure to offer any rebuttal

evidence, police records, testimony of

medical doctor who conducted rape test;

(9) failure to carry out any pretrial

discovery;

(10) failure to furnish proper and

essential jury instructions defining the

rape statute and the burden of the state

to prove forcible rape.

D. Prejudicial and unfair tactics by prosecution

consisting of a two count indictment, adding the

rape charge to give force to the assault charge and

changing the name in the indictment by adding the

Appellant s a/k/a “devil catcher” so as to connote

that Rushing was a professional criminal and to

unduly prejudice the jury, and unfairly referring to

him by this name in Voir Dire through closing

arguments.

On August 8, 2001, the Mississippi Supreme Court

granted Rushing’s application to file a postconviction

motion on the issue of the victim’s recanted testimony.

After an evidentiary hearing.

on October 12, 2001, the circuit court denied Rushing’s

motion for relief, from which Rushing appealed, raising the

following issues:

A.

B.

Whether a defendant is denied due process of

law and fundamental fairness when the hear

ing judge finds that had the recanting witness

testified there was no way to know what she

would say, whether to support her trial

testimony or recant it, and denies a new trial

by finding that recanting deposition was the

result of pressure,where the ultimate finding

of truth at trial is clearly erroneous and not

supported by substantial evidence and a new

trial should be ordered.

Whether the standard of review is one of de

novo rather than deference when the hearing

judge reflects in his opinion and ruling that

the recanting witness cannot be relied upon to

tell the truth, but faults the prisoner for notc

alling her as his witness where the district

attorney has obtained her affidavit reaffirm

ing her trial testimony and that such belief in

the final district attorney s affidavit reflects

that the hearing judge has accepted the belief

that the district attorney s affidavit is the

truth without sufficient evidence and a new

trial should be ordered.

Whether a defendant is denied due process of

law, the right to confrontation and fundamen

tal fairness when a recanting victim s hearsay

statements to the district attorney are allowed

into evidence resulting in a finding that the

recanting deposition and affidavits were the

result of pressure, when the recanting victim

has become the district attorney s witness in

an affidavit on the eve of the post-conviction

rehef hearing where she reaffirms her trial

testimony but the district attorney does not

call her to the stand.

Whether the tral judge abused his discretion

upon a hearing of the prisoner’s motion for

reconsideration which attached affidavits

which materially contradicted the state’s

evidence at the evidentiary hearing by

refusing to consider the affidavits and

refusing to reconsider the denial of post-

conviction relief and thus defendant is denied

due process of law, the right to confrontation

and

D

fundamental fairness.

On September 23, 2003, the Mississippi Court of

Appeals affirmed the circuit court’s denial of Rushing’s

motion for post-conviction relief. ~ Rushing v. State, 873

So. 2d 116 (Miss. App.2003), reh’g denied, January 20,

2004; cert. denied, May 20, 2004.

On February 14, 2005, Rushing filed his petition for

writ of habeas corpus in this court, raising the following

grounds:

Ground A - Ineffective Assistance of Counsel under

the Sixth Amendment to the United States

Constitution:

(1) Trial counsel failed to adequately prepare

for trial in that he did not obtain and use

pohce reports, rape kit, emergency room

records as well as statements by the victim in

which she indicated the sex was consensual;

did not issue subpoenas or view photographs

until the day before trial; failed to develop

sexual history between petitioner and victim;

and failed to introduce information regarding

the paternity of victim’s child.

(2) ‘Trial counsel failed to file motion

requesting severance of Counts one and two.

(-3) Trial counsel] failed to call Tommy

Johnson, the utility worker who interrupted

the alleged rape and failed to call the doctor

who performed the rape kit.

(4) Trial counsel failed to thoroughly cross

examine the victim regarding the utility

worker, her inconsistent statements and

whether she was forced to have sex with

petitioner.

(5) Trial counsel failed to attack victim’s

veracity by questioning victim and other

witnesses.

(6) Trial counsel should have objected when

the prosecution used Rushing’s alias, “Devil

(. tcher,” numerous times throughout the

trial.

Ground B - Petitioner was denied due process of law

under the 14th Amendment because the “forcible

and no consent” element of rape was not proven

beyond a reasonable doubt.

6

Ground C- Petitioner was denied a fair trial by

jury since the prosecution used unfair, irrelevant

tactics and dominated Ms. Lynch and thus petition

er was denied a fair trial by a fair jury and due

process of law under the 14th Amendment to the

United States Constitution.

Ground D - The jury was not properly instructed

and if all the witnesses and contradictions had been

presented at trial petitioner would not have been

convicted, since he 1s actually innocent and thus he

is being denied “fundamental fairness” and due

process of law under the 14th Amendment to the

United States Constitution.

Ground E - Petitioner was denied a fair trial by a

fair jury because the testimony of the alleged victim

Marilyn Lynch is now shown through her post trial

affidavit as inadequate to constitute forcible rape

and Ms. Lynch has now stated under oath facts to

support the conclusion that there was no force

surrounding the sex, but the sexual acts were by

consent and thus petitioner has been denied his

rights to due process under the 14th Amendment to

the United States Constitution.

Ground F - Whether a jury instruction on

aggravated assault with a “de-dly weapon” without

the element of “serious bodily injury” is a variance

from an indictment that does not have “deadly

weapon’ as an element but only has “serious bodily

injury” and the defendant is denied proper

constitutional notice of the charges, a fair trial, the

right to confrontation and due process of law.

Ground G. Whether jury instructions on aggravated

assault are “plain error” as a judicial comment on

the evidence by containing the phrases “when used

as a weapon under the existing circumstances” and

the phrase “a deadly weapon, specifically a broken

pool stick” and thus the defendant is denied a fair

trial, confrontation of witnesses and due process of

law.

Ground H. Whether the jury instructions under facts

which showed hitting with a broken pool stick,

pointing a gun and kicking with a foot are fatally

confusing and abstract when the only specific

reference to “deadly weapon” in the instructions

points to the pool stick and thus the defendant is

denied a fair trial and due process of law and trial

by jury.

Ground I - Whether the evidence of forcible rape is

sufficient to support a verdict of guilty when there

was no contemporancous force and the victim had

many opportunities to seek aid, assistance and flee

from the presence of the defendant with whom she

had a long term beneficial sexual liaison and she

traveled with him back to her trailer and nearly

twelve hours after the coupling first told the

interrogating officer she had not been sexually

assaulted.

.

Ground J - Whether the defendant was denied his

right to confrontation of witnesses and a fair trial

when moments before the victim s son was to testify,

the state first disclosed to the defendant that the son

would testify to defendant’s admission of assaulting

the mother and testify that the defendant had made

three valuable offers to the mother if she would drop

the charges.

Ground K - Whether the defendant was denied his

right to confrontation of witnesses and a fair trial

when the court refused admissibility of the victim s

contradictory statement to the interrogating officer

that she had not been sexually assaulted.

Ground L - Whether the evidence was sufficient to

support a verdict of aggravated assault, when the

victim only had bruises, redness on the throat from

alleged choking and a broken finger and gave a

contradictory and exaggerate? *-csunt of the

incident with the defendant at the bar and much

later engaged in voluntary sex with him after

rejecting an opportunity to return to her trailer

alone without defendant.

Ground M -There was no proof beyond a rcasonable

doubt of the elements of forcible rape and due

process was denied with the state failing to meet its

burden of proof. Both convictions should have been

reversed because the joint trial, without severance of

the count for aggravated assault, so infected a fair

jury trial on the rape count, that due process was

denied. The forcible rape and an instruction on

“feloniously” should have been granted when

requested by the jury.

Ground N - The prosecution used unfair

tactics denying a fair trial by the two count

indictment, knowing the proof was not there on the

rape count and by inflaming the jury with the

Petitioner's citizens band “handle” of “Devil Catcher”

in the indictment and constantly referring to him by

that name at trial. The State dominated the alleged

victim Marilyn Lynch on the sex testimony contrary

to the facts.

Ground O - Material evidence was not

presented that would have resulted in an acquittal

and some of this is newly discovered evidence.

Ground P - The trial counsel was ineffective

by failing to adequately prepare for trial, advise

Petitioner of the trial date weeks before and not just

a few days before and failure to ask for a

continuance because of a pending DNA paternity

test that would have revealed Ms. Lynch falsely

accused Petitioner of being the father. Trial counsel

failed to obtain the E.R. records on Ms. Lynch's visit

to Riley Hospital, which reveal no rape and

contradict the charge of rape. Trial counsel was

ineffective by failing to adequately cross-examine

adverse witnesses especially and to call material

ha

witnesses and cross-examine Ms. Lynch on prior

material substantial conflicting statement of “no

rape’ and other statements and testimonial conduct.

In particular, counsel should have pointed out that

Lynch told Detective McElhenny that she was not

restrained at the trailer, only at the Club. Counsel

failed to seek a severance and adequately to argue

his Motion for Directed Verdict. Improper and unfair

jury instructions were not opposed and counsel did

not present adequate instructions on the forcible

rape. Also, the prosecution used peremptory jury

challenges to exclude Blacks, the final jury being 10

whites and 2 Blacks, but trial counsel made no

objection and no argument against violation of

Batson.

Ground Q. Ms. Lynch changed and elaborated upon

her testimony in affidavits and a deposition where

she was represented by counsel which confirms no

rape took place, but the sex was consensual and

thus due process and a fair trial were denied. The

rape accusation was manufactured by the Meridian

Police Department as unfair leverage to exact a

guilty plea from Petitioner on the aggravated

assault count. The two count indictment was an

unfair tactic and a severance should have been

requested and granted.

Ground R - If there had been a fair trial, without

prejudicial linking of the aggravated assault and al]

the evidence heard, and the jury properly instructed,

there would have been an acquittal of James

Rushing of forcible rape. Rushing is actually

innocent. of the rape count.

As the State correctly points out, the fifteen grounds

set out by petitioner are repetitive, and thus, for ease of

analysis will be regrouped into eight issues/grounds, as

suggested by the State: (1) sufficiency of the evidence

(Grounds B, I, I. and M); (2) ineffective assistance of

counsel (Grounds A and P); (3) prosecutorial misconduct

(Grounds C, N and Q); (4) improper jury instructions

(Grounds D, F, G, H and M); (5) actual innocence/new

evidence (Grounds E, H, O, Q and R); (6) improper

admission of evidence (Ground J); (7) improper exclusion of

evidence (Ground K); and (8) severance (Grounds M and

Q). In response to the petition, the State argues that the

applicable portions of the Antiterrorism and Effective

Death Penalty Act of 1996 [“AEDPA”], Pub. L. 104-132,

110 Stat. 12144, prevent this court from granting relief

based upon Rushing s petition.

9

Il STANDARD OF REVIEW

The instant case is governed by the Antiterrorism

and Effective Death Penalty Act of 1996 (““AEDPA”),

contained in 28 U.S.C. 2254(d) (2002). The applicable

provision provides as follows:

(d) An application for a writ of habeas corpus on

behalf of a person in custody pursuant to the

judgment of a State court shall not be granted with

respect to any claim that was adjudicated on the

merits in State court proceedings unless the

adjudication of the claim-

(1) resulted in a decision that was contrary to, or

involved an unreasonable application of clearly

established Federal law, as determined by the

Supreme Court of the United States; or

(2) resulted in a decision that was based on an

unreasonable determination of the facts in hght of

the evidence presented in the State court

proceediny.

28 U.S.C. § 2254(d) (emphasis added).

Under AEDPA, where the state court adjudicated

the petitioner s claim on the merits, this court reviews

questions of fact under § 2254(d)(2), while questions of law

or mixed questions of law and fact are reviewed under §

2254(d)(1). Factual findings are presumed to be correct,

and the court defers to the state court s decision regarding

factual determinations unless it “was based on an

unreasonable determination of the facts in light of the

evidence presented in the State court proceeding.” Hill v.

Johnson, 210 F.3d 481, 485 (5th Cir. 2000)§ 2254(d)(2). The

court independently reviews questions of law and mixed

questions of law and fact to determine whether the state

court s decision thereon was either “contrary to” or an

“unreasonable application of federal law. Williams v.

Taylor, 529 U.S. 362,403-408 (2000); Hill, 210 F.3d at 485.

The first step in this inquiry is to determine what

federal law should be applied to the

10

state court’s decision. Williams, 529 U.S. at 404. The

determinations of the state courts must be tested against

“clearly established Federal law, as determined by the

Supreme Court of the United States.” Id.; § 2254(d)( 1).

Next, this court must determine whether the state court's

decision was “contrary to” that established Federal law.

The proper standard is an objective one, not subjective. at

408-409. The term “unreasonable” was distinguished from

“erroneous or “incorrect”; thus, a state court’s incorrect

application of the law may be permitted to stand if it was,

nonetheless, “reasonable.”

A summary of the AEDPA law is that ultimately,

“Ito prevail on a petition for writ of habeas corpus, a

petitioner must demonstrate that the state court

proceeding ‘resulted in a decision that was contrary to, or

involved an unreasonable application of, clearly

established Federal law, as determined by the Supreme

Court of the United States.” Robertson v. Cockrell, 325

F.3d 243, 247-48 (5th Cir. 2003) (en banc) (quoting 28

U.S.C. § 2254(1)U) (2000)). The courts have no authority to

grant habeas corpus relief simply because “we conclude, in

our independent judgment, that a state supreme court s

application of [federal] law is erroneous or incorrect.”

Catalan v. Cockrell, 315 F.3d 491, 493 (5th Cir. 2002)

(citation and quotation omitted).

[il FACTS

On February 3, 1997, shortly after mid-night,

Rushing called M.L., his mistress of five years with whom

he had a young child, to let her know that he was on his

way to pick her up. M.L. told him that she was on the

phone with her aunt and with her sister. Rushing then

accused M.L. of lying because he was on his other line with

M.L.’s sister. Upon arriving at M.L’ s trailer, which

Rushing had provided to her and their young child, he

noticed that several of the

Ll

appliances were missing. Rushing asked M.L. whether she

had used the money he had given her to pay the rental

company. M.L. insisted that she did, but that the rental

company had, nonetheless, repossessed the items.

M.L. testified that as she and Rushing, whose alias

was “Devil Catcher,” headed to his night club, he was

angry about the appliances and telephoned a friend, whom

she presumed to be Eddie Cole. While he was on the

phone, Rushing remarked that he had “this bitch in the car

and was trying to find somewhere to kill her.” Upon arrival

at the empty club, Rushing told M.L., “[a]fter tonight I am

not going to worry about you lying to me; you will be out of

my life.” Inside the club, Rushing cursed M.L, demanding

that she take off her clothes. After she complied, he beat

her on the buttocks, arms, back and leg with a broken pool

stick, threatened her with a gun, stomped on her, and

choked her while he stating that she needed to die. After

over forty minutes of brutality, Rushing drove a barely

conscious M.L. to her trailer. After arriving at her trailer,

Rushing stated: “Well. | suppose that you don’t want to f—

now, huh?” M.L. declined his offer and after laying across

the hood of his car to compose herself, went into the

trailer.

After she removed her clothes, got into bed and

declined Rushing's further advances, she drifted in and out

of consciousness, until after daybreak when her aunt

called. Because Rushing was in bed beside her, M.L. did

not tell her aunt about his attack at the club. After the call

when Rushing requested sex a third time, the M.L.

testified that they had the following exchange:

| kept telling him no. Well, we did have sex. He kept

on messing with me. And he told me, he said, Well, I

don’t want you half f****** me. And then he said,

You really don’t want to do this, do you? I said, No, I

don't. He said, Well, if want to f~””, I am going to

have to go somewhere else? I said, Yes, you do. I laid

down on the bed. And | laid back down on the bed

and he told me, he said, Well, you are going to f{***

me before I leave here, even if it’s the last time.

12

After this conversation, M.L. relented, believing that

he would not leave her alone until she had sex with him.

Later that evening, her aunt came to her home and drove

her to the hospital. The police officer dispatched to the

hospital observed bruises on M.L.’s arms and legs. Later on

the evening of February 3, 1997, M.L. filed charges against

Rushing. On a return trip to the hospital to undergo a

sexual assault examination, the examining nurse noted a

red mark on her neck and bruises to her buttocks, left

thigh and upper arm. An x-ray further revealed a broken

finger.

For his part, Rushing testified at trial that while

they were at the club, discussing the missing appliances,

M.L. came at him with the broken pool cue. He stated that

as he stood up, he accidentally knocked her back. He

claimed that he hit her with the cue stick no more than

four times and denied that he required her to disrobe and

that he stomped or choked her. According to Rushing, the

next morning, as a way to apologize for lying about the

appliances, M.L. initiated sex with him, during which he

noticed no bruises on M.L.

Rushing was represented at trial by Attorney Pat

Jordan, whereas the State was represented by Assistant

District Attorneys Greg Malta and Rick Fortenberry. The

Honorable Robert W. Bailey. Circuit Judge, presided at the

trial.

[V. DISCUSSION OF ASSIGNED ERROR

AND THE APPLICABLE LAW

A. Issue One- Sufficiency of the Evidence (Petitioner’s

Grounds B, I, Land M)

‘The inquiry pertinent to Rushing’s claim of insufficient

evidence to support his rape conviction2 is “whether, after

reviewing the evidence in the light most favorable to the

( Fn. 2 Given that the Mississippi Court of Appeals

reversed and remanded Rushing s aggravated assault

conviction, any challenge to that conviction is moot.)

13

prosecution, any rational trier of fact could have found the

essential elements of the crime beyond a reasonable

doubt.” Jackson v. Virginia, 443 U.S. 307, 319 (1979):

Hughes v. Johnson, 191 F.3d 607, 619 (5th Cir. 1999)

(quoting Jackson). The court, “in applying this standard...

refers to the state’s criminal law for the substantive

elements of the offense.” Hughes, 191 F.3d at 619.

On direct appeal, Rushing made the following

argument regarding the sufficiency of the evidence on the

rape charge:

Rushing argues that the evidence was insufficient to

support the jury verdict finding him guilty of forcibly

raping the victim because no contemporaneous force

‘as used, the victim had many opportunities to seek

aid, assistance, and flee from Rushing, the victim

had had a long-term sexual! relationship with

Rushing, the victim had waited nearly twelve hours

after the attack to report the rape, and the victim

had denied she had been raped when first

questioned by an officer.

Rushing, 753 So. 2d at 1142.

24

The Mississippi Court of Appeals rejected this argument,

stating:

Rushing was convicted under Miss. Code Ann. § 97-

3-65(2) (Rev.1994) which provides:

Every person who shall forcibly ravish any

person of the age of fourteen (14) years or

upward, or who shall have been convicted of

having carnal knowledge of any person above

the age of fourteen (14) years without such

person s consent....

Reviewing the evidence in the light most favorable

to the State, we find the evidence was sufficient to

establish and to support the three clements

necessary to prove rape, 1.e., (a) carnal knowledge,

(b) without consent and by force, and (c) of a female

age fourteen or upward. Halley v. State, 537 So. 2d

411, 414 (Miss.1988).

As the Mississippi Supreme Court noted in_Hull v.

State, 687 So.2d 708, 723 (Miss. 1996):

[O]ne of the elements of rape is that it 1s done

“without consent and by force, While this is true,

this Court stated in Stewart v. State, 466 So.2d 906

(Miss.1985):

14

The well-settled rule is that in a prosecution for

rape, physical force on the part of the assailant or

physical resistance on the part of the victim 1s not

necessary if the proof shows beyond a reasonable

doubt that the victim surrendered because of fear

arising out of a reasonable apprehension of great

bodily harm.

Thus, proof that Rushing used additional,

contemporaneous force to have sexual intercourse

with M.L. 1s unnecessary if the evidence establishes

that she surrendered because of fear arising out of a

reasonable apprehension of great bodily harm. The

evidence established that the victim was cursed,

severely beaten while nude, and threatened with a

gun before she was returned to her trailer. The

victim drifted in and out of consciousness

throughout the remainder of the night and early

morning. Although no contemporaneous force was

inflicted upon the victim, the jury could reasonably

find that the victim submitted to sexual intercourse

with Rushing out of fear that to resist would cause

Rushing to further inflict bodily injury upon her.

Indeed, the victim stated her belief that Rushing

would not leave her alone, or leave, until he had

sexual intercourse.

Rushing contends that M.L. consented to sexual

intercourse. Rushing suggests that the fact M.L. had

the opportunity to seek, aid, assistance or to flee

from him and did not do so, is consistent with acts of

consensual intercourse. While the jury might

appropriately consider these matters on the issue of

consent, they were not dispositive. These matters

must be weighed against the evidence offered in

opposition to Rushing’s suggestion of consensual

intercourse.

The most important part of that evidence was the

testimony of M.L. wherein she (1) denied having

engaged in consensual intercourse, (2) stated that

Rushing had, “beat me half senseless”, and (3) stated

her belief that Rushing would not leave her alone or

leave her, until he had intercourse with her.

The conflict in testimony merely raised a question of

credibilitv. Questions of credibility are to be resolved

by the finders of fact, the jury. Eakes v. State, 665

So. 2d 852, 872 (Miss. 1995). When the record

contains credible evidence consistent with the jury

verdict, this Court is obligated to affirm that verdict,

Holmes v. State, 660 So. 2d 1225, 1227 (Miss. 1995),

26

unless to do so would work an unconscionable

injustice._White v. State, 732 So. 2d 961 (Miss.

1999).

Based upon the record before it, this Court finds

that substantial credible evidence existed upon

which the verdict could have found Rushing guilty of

rape. Holmes v. State, 660 So. 2d 1225, 1227 (Miss.

1995). This assignment of error is without merit.

15

Rushing, 753 at 1142-43.

Clearly, the state court applied the same standard to

the evidence as set forth in Jackson, noting that it was the

jury’s duty to determine the eredibility of witnesses. The

undersigned has reviewed the evidence and finds that the

state court’s decision was not an unreasonable application

of Jackson to the facts in this case. As set forth by the

court of appeals, there was evidence from which a

reasonable juror could conclude that M.L. surrendered to

Rushing because of fear arising out reasonable

apprehension of greet bodily harm. ‘The jury heard and

obviously believed her testimony to the effect that Rushing

had savagely beaten her the night before and that in light

of the beating, she thought that he might do the same if

she continued to resist him. As the Mississippi Court of

Appeals did not unreasonably apply Jackson, habeas relief

may not be granted based on this issue.

B. Issue Two- Ineffective Assistance of Counsel

(Petitioners Grounds A and F)

[In considering his post-conviction motion, the

Mississipp! Supreme Court considered Rushiny’s

allegations that his trial counsel was constitutionally

ineffective. That court rejected the claims with only a bnef

statement pronouncing them to be without merit. This

being said, the undersigned is aware that the Mississippi

Supreme Court analyzes ali Sixth Amendment claims

under the standard set forth in Strickland v. Washington,

466 U.S. 668 (1984), the “clearly established” law for

claims of ineffective assistance of counsel. Under

Strickland, a claim of ineffective assistance of counsel may

only be sustained upon proof that trial counsel s

performance was deficient, and trial counsel’s deficiency

resulted in an unfair trial. 466 U.S. at

687. Both the “deficiency” and..the”prejudice” prongs must

be satisfied, or it cannot be said that

16

the adversarial process was so lacking that it rendered an

unreliable result, thereby denying a petitioner a fair

trial..See id. at 687. To prevail on his claim, Rushing must

overcome the presumption of “reasonable professional

assistance’ by showing counsel’s errors prejudiced his

defense to such a degree that there exists a reasonable

probability if those errors were not committed by counsel,

Rushing would not have been convicted. See. at 689-694

(holding a “reasonable probability is a probability sufficient

to undermine confidence in the outcome”). Counsel is

presumed to have given competent assistance, and a

petitioner must overcome that presumption by

demonstrating counsel s actions were not within the

province of a reasonable trial strategy. See id. at 689 (to

prevail on claim of ineffective assistance of counsel,

petitioner must demonstrate counsel s representation fell

below an objective standard of reasonable competence as a

result of which he was prejudiced). Obviously applying

Strickland to Rushing’s claims regarding his attorney, the

Mississippi Supreme Court found that no constitutional]

violation existed. Thus, unless the Mississippi court’s

decision was unreasonable applicati-s of Strickland, no

habeas relief may be granted.

Rushing first charges that counsel was not prepared

for trial, urging that trial counsel failed to obtain and use

police reports, rape kit. emergency room records as well as

a statement by the victim 1n which she indicated the sex

was consensual; did not issue subpoenas or view

photographs until the day befere trial: failed to develop

sexual history between petitioner and victim; and failed to

Zo

Se J

introduce information regarding the paternity of victim’s

child. From the undersigned’s review of the record, it is

clear that counsel was aware of the contents of both the

hospital and police reports, as well as the negative results

of the rape kit. It is clear that his decision not to introduce

these items into evidence was part of his trial strategy.

17

Where a record is utterly silent with regard to

strategy, a reviewing court will presume counsel’s action or

inaction to be the product of strategy. Stanley v. Zant, 697

F.2d 955 (11th Cir. 1983). As the state points out,

“{djefense counsel likely chose to take his chances with the

inference of a negative rape kit as opposed to putting the

doctor who conducted the examination on the stand who

could have testified that a sexually active woman of the

victim’s age would not necessarily display signs of vaginal

trauma following a rape.” Further, the record

demonstrates that M.L. and Rushing had been sexually

involved for five-years, such that it is unclear what

additional testimony on this issue would have added to the

jury’s consideration. Finally, where Rushing does not deny

that he assaulted M.L. with the pool, the paternity of the

child that M.L. claimed to be Rushing has little on whether

defendant assaulted M.L. to such a degree that she feared

further reprisals if she did not have sexual relations with

him the next morning. Jordan cannot be deemed deficient

for failing to raise the issue.

Rushing next asserts that Jordan was ineffective

because he failed to file a motion to sever the aggravated

assault charge from the rape charge. However, as the two-

count indictment is permissible under Mississippi law, see

Miss. Code Ann. § 99-7-21, Jordan was not deficient for

failing to file a motion to sever. The “failure to raise

meritless objections is not inetfective lawvering; it is the

very opposite.’ Clark v. Collins, 19 F.3d 959, 966 (Sth

Cir.1994). The failure to assert a meritless objection cannot

be grounds tor a finding of deficient performance. Emery v.

Johnson, 139 F.3d 191, 198 (5th Cir.1997) (citing Clark, 19

F.3d at 966)

re)

Rushing further complains that defense counsel

failed to call as witnesses, the doctor who performed the

rape kit and a utility worker who knocked on M.L’ s trailer

door and talked to her while Rushing was still there. As

stated previously, Jordan’s decision not to call the doctor

was

18

trial strategy. Moreover, where the victim admitted that

she did not disclose her circumstances to the utility

worker, his testimony would have added little to the jury’s

consideration. Complaints of uncalled witnesses are not

favored in a federal habeas corpus court because the

presentation of testimonial evidence is a matter of trial

strategy, and because allegations of what a witness would

have testified are largely speculative. McCoy v

794 F.2d 177, 183 (5th Cir.1986). Relicf is not warranted

on inis basis.

Rushing also takes issue with his counsel's

performance during the cross-examination of M.L.

According to Rushing, he did not *dequately cross-examine

her and did not attack her veracity. Specifically, he

complains that counsel did not ask M.L. if she had been

forced to have sex, failed to point out that the victim stated

that she had been restrained at the club, but was not

restrained at the trailer and failed to properly inquire

about her inconsistent statements on the question of rape.

However as recognized by the state, given that the

prosecution's theory of the case was that the victim

submitted to the rape due to the fear engendered as the

result of the severe beating by Rushing the night before at

his club, it was entirely logically that Jordan would not ask

M.L. if Rushing “forced” her to have sex. Further, the

record shows that M.I.. admitted that at the hospital, when

she initially asked about a possible sexual assault, she

responded in the negative. The inconsistency was before

the jury and the jury apparently credited M_I..’s testimony

regarding the reason for her initial negative response as

well as her version of the night’s events.

Next, Rushing asserts that Jordan was ineffective

for failing to object to the prosecution’s frequent reference

to his nickname “Devil Catcher” and that Jordan did not

adequately argue his motion for a directed verdict. Here,

the record reflects that Rushing was known by the victim

19

and the community by this name. Defense counsel

promptly explained to the jury that it was Rushing’s CB

handle. Assuming arguendo that Jordan should have

objected to the use of the nickname, given that the victim

knew Rushing by this name and that the nickname itself

was not suggestive of a criminal disposition, the court does

not perceive that the use of the nickname was highly

prejudicial to Rushing. Cf. United States v. Roberson, 124

Fed. Appx. 860 (5th Cir. 2005) (examining the propricty for

using a nickname during trial). Further, the court has

reviewed the record wherein Jordan argued for a directed

verdict as to the rape charge. Jordan’s argument was

consistent with the defense theory—Rushing did not force

M.L to have sex with him. There was no deficiency or

prejudice in this regard.

Rushing also complains that Jordan failed to offer

an instruction which would have defined “forcible” in the

context of rape and one which defined “feloniously. He also

charges that Jordan failed to object to improper jury

instructions. The trial court gave the following instruction

on rape:

The Court instructs the jury that should you find

from the evidence in this case beyond a reasonable

doubt that:

l. On or about the February 3, 1997, in

Lauderdale County, Mississippi;

2 The defendant, James R. Rushing, a

male person over the age of 18 years, did

willfully, unlawfully. feloniously and forcibly

engage in sexual intercourse with Marilyn

Lynch without her consent, then 1t 1s your

31

sworn duty to find the defendant, James R.

Rushing, guilty of rape under Count II of the

indictment in this cause.

Should the State fail to prove any one or more of

these essential elements beyond a reasonable doubt,

then you shall find the defendant, James R.

Rushing, not guilty under Count II of the indictment

in this cause.

20

As the State points out, this instruction was not

contrary to the rape statute as existed at the time that

Rushing was indicted.(FN3) Given that any proper

instruction on the “force” element would have explained to

the jury that “physical force on the part of the assailant or

physical resistance on the part of the victim is not

necessary if the proof shows beyond a reasonable doubt

that the victim surrendered because of fear arising out of a

reasonable apprehension of great bodily harm,” Jordan

cannot be deemed deficient for falling to request an

instruction that would have served to present the

prosecution’s theory of the case.

During its deliberation, the jury did request a

definition of “feloniously.” After defense counsel, for

reasons not stated in the record, rejected the prosecution s

proposed definition, derived from Black’s Law Dictionary,

the court informed the jury that a definition could not be

provided. Assuming arguendo that Jordan erred by failing

to provide a definition , the undersigned is not persuaded

that Rushing was prejudiced by the failure. That is, where

the instructions on the whole accurately stated the law,

Rushing has not shown that, but for the lack

(Fn 3 On the day that Rushing was indicted, Miss.

Code Ann § 97-3-65(2) provided:

Every person who shall forcibly ravish any person of the

age ot tourteen (14) years or upward, or who shall have

been convicted of having carnal knowledge of any person

above the age of fourteen (14) vears without such person s

consent, by administering to such person any substance or

liquid which shall produce such stupor or such imbecility of

mind or weakness of body as to prevent. effectual

resistance, upon conviction, shall be imprisoned for life in

the State Penitentiary if the jury by its verdict so

prescribes; and in cases where the jury fails to fix the

penalty at life imprisonment the court shall fix the penalty

at imprisonment in the State Penitentiary for any term as

the court, in its discretion, may determine.)

21

of an instruction defining “feloniously,”"(FN4) he would not

have been convicted on the rape charge. Finally, the record

indicates that Jordan did object to numerous jury

instructions offered by the state, including the one upon

which the Court of Appeals reversed his conviction for

aggravated assault.

Lastly, the undersigned concludes that petitioner’s

assertion that Jordan failed to make a Batson challenge is

without merit. As the State points out, Rushing has utterly

failed to “make particularized allegations or to identify

probative evidence in the record tending to support his

allegations.” United States v. Flores, 125 F. 3d 1000, 1006

(5th Cir. 1998). He has not directed the court’s attention to

any specific juror who was wrongfully excluded from the

jury pool and has not offered any meaningful argument

that the prosecution improperly utilized its peremptory

strikes. Certainly, he has not shown that Jordan was

deficient by not raising this issue.

Having reviewed the trial record, the undersigned

finds no deficiencies in counsel's performance. Applying the

standard of review required by AEDPA. the undersigned

further finds that the state’s application of the law |[1.e., the

Sirickland standard] to the facts in Rushing’s case was

clearly not unreasonable in hght of the evidence. Rushing

attorney's representation was vigorous and comprehensive.

As both the United States Supreme Court and the Fifth

Circuit Court of Appeals have recognized, a criminal

defendant ts not constitutionally entitled to a perfect trial,

just a fair one Delaware v. Van Arsdall, 475 U.S. 673, 681

(1986); Sawyer v. Butler, 848 F.2d 582, 594 (Sth Cit 1988).

A review of the record confirms the undersigned’s

conclusion that Rushing did receive a fair trial,

represented by adequate counsel and thus, that the

(Fn 4’The term ‘feloniously means unlawfully with the

intent to commit a feclony-grade crime.” Winston v. State,

127 Miss. 477,484-85 (Miss. 1921).)

22

Mississippi courts did net unreasonably apply

Strickland. Relief is not warranted as to this issue.

C. Issue Three- Prosecutorial Misconduct

(Petitioner’s Grounds C, N and O)

According to Rushing, in obtaining his conviction,

the prosecution used unfair and irrelevant tactics and also

“dominated” the victim. He further complains that the

prosecution improperly referred to him as “Devil Catcher”

throughout the trial. Although he fails to say as much in

his petition before this court, by unfair and irrelevant”

tactics, Rushing apparently refers to his belief that the

prosecution and the Meridian Police Department

intentionally charged him with rape and aggravated

assault to extract a plea on the aggravated assault charge.

By his accusation that the prosecution “dominated” the

victim, Rushing apparently is proceeding on a theory that

the State scripted M.L.’s trial testimony and later

“persuaded” her to recant the deposition testimony that

she gave in connection with Rushing s application for post-

conviction review. In her deposition, M.L. recanted her

trial testimony that Rushing raped her. The Mississippi

Supreme Court rejected these claims, and the undersigned

finds that its decision in this regard does not amount to an

unreasonable application of clearly established law. As the

State points out, the record does not substantiate either of

Rushing’s charges of improper conduct related to the

decision to charge Rushing with aggravated assault and

rape or of “dominating” the victim during either the trial or

during the post-conviction proceedings; nor has Rushing

purported to offer any new evidence (or argument on this

issue) in support of these assertions to this court.

Regarding the prosecution’s references to “Devil

Catch. ° 'given that trial counsel explained that the

mon acy was Rushing’s C.B. handle and that the name is

not particularly

23

suggestive of criminal activity, Rushing has not

demonstrated that the use of “Devil Catcher” during trial

was harmful to him; that is, he has not shown that it

rendered his trial fundamentally unfair. See United States

v. Rodriguez, 43 F.3d 117, 124 (5th Cir. 1995)

(prosecutorial remarks “must be more than undesirable or

condemnable; they must be so pronounced and persistent

as to cast serious doubts on the verdict”); Ortega v.

McCotter, 808 F.2d 406, 410 (5th Cir. 1987) (remarks must

have been a “crucial, critical, highly significant factor in

the jury s determination of guilt”); United States v. Parker,

877 F.2d 327, 332 (5th Cir. 1989) (in determining whether

defendant s due process rights were violated by

prosecutorial misconduct, first inquiry is whether the

prosecutor s comments were indeed improper; the second is

to evaluate whether the comments were harmful). In light

of the foregoing, Rushing is not entitled to relief as to this

issue.

D. Issue Four- Jury Instructions

(Petitioner’s Gre '_G

Rushing makes a two-prong attack on the jury

instructions. First, he contends that instructions C-7 and

C-9 were improper, thereby denying him a fair trial.

Secondly, he again complains that his right to a fair trial

was deprived because the jury was not provided a

definition of “forcible” or “feloniously.” The State argues,

and correctly so, that neither of these arguments provides

a basis for habeas relief.

Generally, challenges to jury instructions may not

form a basis for federal habeas corpus relief. Gilmore vy.

Taylor, 113 5. Ct. 2112, 2118-19 (1993). Only if an

instruction was so unfair as to rise to the level of a

constitutional violation would rehef be appropriate. Id. A

jury instruction should not be given when the charge is not

supported by the evidence, and due

24

process does not require otherwise. Hopper v. Evans, 456

U.S. 605, 611(1982). Petitioner s arguments regarding the

jury instructions only related to purported errors of state

law, even though the Petitioner has attempted to frame

them as constitutionally deficient. The Mississippi

Supreme Court may interpret its own law, and this court

does not sit as a superior state court to review supposed

errors of state law. “[lit is not the province of a federal

habeas court to reexamine state-court determinations on

state law questions.” Trevino v. Johnson, 168 F.3d 173, 184

(5th Cir. 1999).

Only if any of these errors so unfairly prejudice his

trial so as to render it fundamentally unfair would it

violate Rushing’s Due Process rights. The issue for this

Court is not whether state law was violated, or whether

any error prejudiced the petitioner. The issue is whether

the giving of the instruction or the failing to give the

instruction “so infected the entire trial that the resulting

conviction violates due process.” Galvan v. Cockrell, 293

F.2d 760 (5th Cir. 2002). Even then, the undersigned’s

review is limited to determining whether the state court’s

decision was an unreasonable application of clearly

established federal law, or contrary to such law, under

AEDPA.

Here, the undersigned finds that the claims

regarding the jury instructions simply are not of a

constitutional magnitude ana that the state court’s

decision is entirely reasonable and violates no federal law

[Instructions C-7 and C-9 instructed the jury on the

aggravated assault charge. As set torth above, the

Mississippi Court of Appeals concluded that C-7 was

improper and upon this conclusion, reversed Rushing’s

aggravated assault conviction. Rushing argues that if the

jury had been properly instructed on the aggravated

assault charge, they could not have found him guilty of the

rape charge. This argument essentially challenges the

sufticiency of the

25

evidence. As the undersigned set forth supra at p. 13-16,

the state court decision regarding the sufficiency of the

evidence on the rape charge does not constitute an

unreasonable application of Jackson, and thus, no relief is

warranted. Likewise, in connection with evaluating

petitioner's ineffective assistance of counsel claim, the

undersigned has addressed the lack of jury instructions

defining “feloniously” and “forcibly,” concluding that where

the instructions on the whole correctly set forth the

elements of rape, any failure on Rushing’s attorney’s part

to proffer these definitions did constitute ineffectiveness.

Similarly, by refusing to provide the jury with these

definitions, the trial court did not deny Rushing a fair

trial. Accordingly, the undersigned finds that the appellate

court s decision denying relief was not unreasonable or

incorrect and thus, that relief should be denied as to this

ground.

Kk. Issue Five- Actual Innocence/New Evidence

(Petitioner's Grounds E.H, O, @ and R)

In Issue Five, petitioner argues that the trial court

erred in denying him a new trial as was sought by his

motion for post-conviction relief. According to Rushing, the

new evidence presented to the trial court during the

evidentiary hearing on his motion for post-conviction

review establishes that he was actually innocent of the

rape charge. At this hearing, Rushing presented two

affidavits from and the deposition testimony of M.L.,

wherein she stated she recanted her trial testimony

regarding the rape. For its part, the State presented a

more recent affidavit from M.L. In the affidavit that the

State presented, M.L. recited, in part, that

[t]he deposition | gave to Mr. Rushing’s attorney was

given because I was feeling sorry and a little guilty

for Mr. Rushing. ! was tired of all the phone calls |

was getting day and night just about every day until

my phone was turned off. His friends were always

asking why | did it and trying to make me feel bad.

But after thinking long and hard about it, | couldn’ t

live with

26

myself if [ told a lic and changed my testimony. At

least now | still have my self-respect and dignity for

sticking with the truth.

Neither side called upon M.L. for live testimony, and

after receiving the evidence, the trial court ruled as

follows:

This Court has considered the trial testimony of the

victim, along with her recanted testimony contained

in the affidavits submitted and the deposition taken,

as well as the affidavit she provided to the District

Attorney. The Court is confident that she testified

truthfully at trial and in her affidavit made on

August 20, 2001. The victim stated in her affidavit

that she was tired of the calls she was receiving and

that she could not live with herself if she did not tell

the truth. The Court is also of the opinion that the

victim bent to pressure from the Petitioner and

others in recanting her trial testimony. This Court

does not know what the victim would have stated

had she been called to testify at the evidentiary

hearing and will not speculate to what she might

testify. The Court is of the opinion that the recanted

testimony is material, but that because the victim

has now stated that it was in fact rape, along with

her reason for recanting her testimony and because

she did not testify at the evidentiary hearing, the

Petitioner has not proven that a different result

would be reached if a new tnal was provided.

Therefore, the Motion for New Trial is hereby

denied.

As the State correctly points out, absent an

independent constitutional violation occurring in the state

trial, actual innocence based on new evidence relevant to

the guilt of a state prisoner is not cognizable on federal

habeas corpus. Herrera v. Collins, 506 U.S. 390, 400, 404

48

(1993); Graves v. Cockrell, 351 F.3d 143 (Sth Cir. 2003);

Jacobs v. Scott, 31 F.3d 1319, 1324 (5th Cir. 1994).

Instead, actual innocence 1s “a gateway through which a

habeas petitioner must pass to have his otherwise barred

constitutional claim considered on the merits.” Id. at 404.

As petitioner does not assert actual innocence in an effort

to overcome a procedural bar, he has failed to state a claim

on which the court may grant relief and the claim is

subject to dismissal.

F. Issues Six, Seven and Eight- State Law Errors

(Petitioner’s Grounds J K, M and Q)

27

Rushing’s contentions in Issues Six through Eight

generally raise claims regarding Mississippi law, and these

do not rise to the level of constitutional violations. Further,

the Court of Appeals and the Mississippi Supreme Court

considered and rejected these assertions on the merits.

Unless Rushing can show that the court s decision was an

unreasonable application of clearly established federal law,

no haheas relief can be granted. The undersigned finds

that the state courts, in rejecting these contentions,

violated no federal law.

For example, Rushing contends that the trial court

erred in denying his motion to exclude the testimony of the

victim's son, R.L., because the prosecution failed to timely

disclose its contents in violation of Rule 9.04 of the

Uniform Rules of Circuit and County Court Practice.

According to the petition in this court, this had the effect of

denying him the right to confront a witness and the right

to a fair trial. At trial, R.L. testified that: (1) Rushing

offered to give M.L. money, a house and car repairs, if she

would drop the charges; (2) Rushing admitted he had hit.

M.L.; and (3) Rushing denied raping M.L. The Mississippi

Court of Appeals found a technical violation of the rule, but

concluded that the error was harmless, apparently because

both parties had indicated that they would call R.L. as a

witness. The record reflects that R.L was subject to cross

examination on the “valuable offers.” And Rushing himself

testified that he had made otters of money and a house to

M.L. in an effort to support their child, not as an incentive

to drop the charges. Rushing was neither denied the right

to confront R.L. or the right to a fair trial, and his effort to

somehow recast this state law error as a constitutional

infirmity fails.

Issue Seven involves the trial court’ s exclusion of

M.L.’ s written statement to the investigating officer. This

is a simply an evidentiary matter, which is ordinarily not a

basis for habeas relief. A federal court in a habeas corpus

petition reviewing state evidentiar, rulings does

28

not sit as a superior state supreme court to review error

under state law. Bridge v. Lynaugh, 838 F.2d 770 (5th Cir.

1988). An evidentiary error in a state trial does not justify

federal habeas corpus relief unless it is of such magnitude

as to constitute a denial of fundamental fairness under the

Due Process Clause. Id. at 772. Here, on appeal, the

Mississippi Court of Appeals concluded that the trial court

was within its discretion in refusing to admit the written

statement and observed that Rushing was not deprived of

his opportunity to cross-examine both M.I.. and the

investigating officer regarding her initial statement to the

effect that she had not been sexually assaulted.

In Issue Eight, Rushing charges that his due process

rights were violated by the trial court s failure to sever the

counts of the indictment and try him separately on cach

count. Although he offers no further argument on this

issue in his petition before this court, in state court,

Rushing took the position that because the assault and

rape were separate incidences which occurred at different

locations, the failure to sever these charges was a violation

of Mississippi Code Ann.§ 99-7-2(1) EN5 Simply put, this

alleged error of state law does not rise to the level of a

constitutional deprivation and therefore, 1s not subject to

review by this court. As these claims fail to provide a basis

tor habeas reliet, they shou!d be dismissed.

40

V. CONCLUSION

( Fn 5 This section provides, in pertinent part, that two or

more offenses which are triable in the same court may be

charged in the same indictment with a separate count for

each offense if: (a) the offenses are based upon the same

act or transaction; or (b) the offenses are based two or

more acts or transactions that connected together or

constituting parts of a common scheme or plan.)

29

For the reasons discussed above, the

undersigned recommends that the petition should be

dismissed with prejudice.

The parties are hereby notified that failure to file

written objections to the proposed findings, conclusions,

and recommendation contained within this report and

recommendation within ten (10) days after being served

with a copy shall bar that party, except upon grounds of

plain error, from attacking on appeal the unobjected-to

proposed factual findings and legal conclusions accepted by

the district court. 28 U.S.C.§ 636, Douglass v. United

Services Auto. Ass'n, 79 F.3d 1415, 1428-29(5th Cir. 1996).

RESPECTFULLY SUBMITT"D, this the

Sth day of February, 2008.

s/ James C. Sumner

UN!'TED STATES MAGISTRATE JUDGE