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

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386017_0896%3A2

## Record

- **Collection:** Supreme Court brief
- **Document type:** Appendix
- **Published:** January 1, 2009

## Text

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386017_0896%3A2. Public record. Not legal advice.