Shelton v. King (548 F. Supp. 2d 288, 2008)

ORDER

DAVID BRAMLETTE, District Judge.

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

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

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

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

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

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

SO ORDERED.

REPORT AND RECOMMENDATION

MICHAEL T. PARKER, United States Magistrate Judge.

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

PROCEDURAL HISTORY

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

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

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

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

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

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

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

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

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

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

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

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

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

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

(7) Petition to dismiss petitioner’s capitol-crime conviction and sentence with prejudice, as a result of the lower court(s) unlawfully permitting attorney James (Jim) Arnold Jr. and attorney Waldo (Wallie) Stuckey Jr. to enter into petitioner’s capitol criminal cause as being retained counsels of record, in the absence of conducting the required procedures (or any procedures) on the record to elarify-verify the legality and constitutionality of the aforesaid counsels entering into said capitol cause,.. And then unlawfully permitted said counsels to remain as counsels of record in said cause from 9-16-96 through 6-4^98 as being a court-appointed counsels of record, at a time when said counsels were not and had not been appointed as they represented themselves to be,.. thereby resulting in petitioner being denied the required constitutionally assistance of counsel from the day of petitioner’s arrest on 8/21/96 through 6/3/98, (Date petitioner retained his own counsel) after being arrested, charged, placed in custody, and denied bond on a capitol-crime charge, where the State of MS was seeking the “death penalty” against petitioner, .. which concluded in being a violation of petitioner’s aforesaid constitutional rights.

According to petitioner, the “Emergency Petition” was filed in an effort to get these issues, which petitioner claimed his appellate counsel refused to raise on appeal, before the Supreme Court. Emergency Petition at 14. By Order dated July 28, 2003, the Court denied the Emergency Petition. Exhibit C to Answer.

On July 12, 2004, petitioner filed an “Application for Leave to Proceed in the Trial Court of Yazoo County, MS, a “Motion for Post-Conviction Collateral Relief,” ” (hereinafter “UPCCR Motion”) and a “Memorandum of Law and Argument in Support of Petitioner’s U.P.C.C.R. Motion” (hereinafter “UPCCR Memo”) (Exhibits D & E to Answer) in the Mississippi Supreme Court, alleging the following (as stated by petitioner):

I.Petitioner were denied “fundamental-fairness” during his direct appeal of a capital-crime conviction and sentence where the State of MS had seeked the “death-penalty,” as a result of the trial court’s “prejudicial-failure” to include in the record for appeal (after being requested by petitioner) certain “essential” records-documents that were used in this case and stamped filed in the trial court.

II. Petitioner has recently discovered-uncovered evidence to substantiate that, during an illegal scheme to obtain public-country funds illegally, an attorney knowingly and intentionally represented petitioner fraudulently, illegally, and feloniously on petitioner’s capital-crime ease # 96-8080 in Yazoo County, and on petitioner’s direct appeal # 97-KA-107 in Lauderdale County between 8-21-96 and on or about 5-28-98 during the same time period, resulting in a denial of the “constitutionally” required legal assistance of counsel in both cases during the aforestated time period, and a successful (substantial) illegal cheat upon the county of Yazoo, and an unsuccessful illegal attempt to obtain public funds from the county of Lauderdale.

III. Petitioner received ineffective assistance of trial/appellate counsels:

(A) Petitioner received ineffective assistance of appellate counsels for failure to raise on petitioner’s direct appeal after being timely informed by petitioner that petitioner were denied the “constitutionally” required legal assistance of counsels from 8-21-96 through on or about 5-28-98 as a result of petitioner being afforded fraudulent and illegal retained and court-appointed assistance of counsels, which resulted in a feloniously (substantial) cheat being placed upon the treasury funds of Yazoo County, after an unsuccessful attempt upon the county of Lauderdale, during an illegal scheme to obtain public-county funds illegally.

(B) Petitioner received ineffective assistance of appellate counsels for failure to raise on petitioner’s direct appeal after being timely informed by petitioner that petitioner’s statutory and constitutional right to a fast and speedy trial were violated as a result of the extensive delay in petitioner being afforded the “constitutionally” required legal assistance of counsels after petitioner had been arrested, charged, requested a counsel, and placed in custody without bail on a capital-crime offense.

(C) Petitioner received ineffective assistance of appellate counsels for failure to raise on petitioner’s direct appeal that petitioner’s trial counsels were ineffective for failure to raise in the trial court that the initial (first) counsels who represented petitioner in this case committed perjury while testifying during a motion hearing in this case.

(D) Petitioner received ineffective assistance of appellate counsels for failure to raise on petitioner’s direct appeal that petitioner’s trial counsel were ineffective for stating in the presence of the jury that there were a previous trial in this capital-crime case.

(E) Petitioner received ineffective assistance of appellate counsels for failure to raise on petitioner’s direct appeal that petitioner’s trial counsels were ineffective for failure to object to the state stating to the jury during closing arguments that there were a previous trial in this ease.

(F) Petitioner received ineffective assistance of appellate counsels for failure to raise on petitioner’s direct appeal that the trial court erred by failing to sustain petitioner’s objection to Officer Woods testifying about the contents of a telephone company record that were not prepared by Officer Woods.

(G) Petitioner received ineffective assistance of appellate counsels for failure to raise on petitioner’s direct appeal that the trial court erred by failing to sustain petitioner’s objection to the state admitting into evidence statements given by witnesses other than the witness who the statements were admitted through.

(H) Petitioner received ineffective assistance of appellate counsels for failure to raise on petitioner’s direct appeal that the trial court erred by denying petitioner’s motion to dismiss with prejudice.

(I) Petitioner received ineffective assistance of appellate counsels for failure to raise on petitioner’s direct appeal that the trial court erred by denying defendant’s motion to dismiss.

(J) Petitioner received ineffective assistance of appellate counsels for failure to raise on petitioner’s direct appeal that the trial court erred by denying defendant’s motion to nolle prosse indictment and dismiss criminal charges.

(K) Petitioner received ineffective assistance of appellate counsels for failure to raise on petitioner’s direct appeal that the trial court erred by denying petitioner’s motion to suppress (Michael Biasello’s statement).

(L) Petitioner received ineffective assistance of appellate counsels for failure to raise on petitioner’s direct appeal that the trial court erred by denying petitioner’s motion to quash indictment and challenge to composition of grand and traverse jury pools.

(M) Petitioner received ineffective assistance of appellate counsels for failure to raise on petitioner’s direct appeal that the trial court erred by denying petitioner’s motion to quash indictment.

(N) Petitioner received ineffective assistance of appellate counsels for failure to raise on petitioner’s direct appeal that petitioner’s trial counsels were ineffective for failure to secure a ruling on petitioner’s motion to quash indictment.

(O) Petitioner received ineffective assistance of appellate counsels for failure to raise on petitioner’s direct appeal that the trial court erred by failing to issue a ruling on petitioner’s motion to quash indictment after being informed by petitioner’s trial counsel that petitioner will rely on the motion itself for a ruling.

(P) Petitioner received ineffective assistance of appellate counsels for failure to raise on petitioner’s direct appeal that petitioner’s trial counsels were ineffective for failure to request a mistrial after petitioner’s trial counsel and the prosecutor stated in the presence of the jury that there were a previous trial in this case.

(Q) Petitioner received ineffective assisr tance of appellate counsels for failure to raise on petitioner’s direct appeal that the trial court committed prejudicial-error for failure to instruct the jury on the court’s own initiative to disregard or not to consider during deliberations the statements made by petitioner’s trial counsel and the prosecutor regarding there being a previous trial in this case.

(R) Petitioner received ineffective assistance of appellate counsels for failure to raise on petitioner’s direct appeal that petitioner’s trial counsels were ineffective for failure to raise during trial or in a motion for a new trial the inconsistencies in the testimony between Officer Wade Woods and Molly Crow regarding the viewing of a physical line-up held on 8-21-96.

(S) Petitioner received ineffective assistance of appellate counsels for failure to raise on petitioner’s direct appeal that the trial court erred by allowing the state’s jury instructions S-3, S-4, and S-5 over petitioner’s objections.

(T) Petitioner received ineffective assistance of appellate counsels for failure to raise on petitioner’s direct appeal that petitioner’s trial counsels were ineffective for failure to file and raise in support of a motion for a new trial certain prejudicial-errors committed during the trial of this capital-crime case.

(U) Petitioner received ineffective assistance of appellate counsels for failure to raise on petitioner’s direct appeal that petitioner’s trial counsels were ineffective for failure to raise in the trial court that petitioner’s case should be dismissed for prosecutorial and judicial misconduct.

(V) Petitioner received ineffective assistance of appellate counsels for failure to raise on petitioner’s direct appeal that petitioner were tried, convicted, and sentenced on a total and fatal-defective capital-murder indictment which also subjected the trial court to be without jurisdiction to hear and prosecute petitioner’s case.

(W) Petitioner received ineffective assistance of appellate counsels for failure to raise on petitioner’s direct appeal after being timely informed by petitioner that the trial court “prejudicially-failed” to include in the record for appeal certain records-documents that were used in this case and stamped filed in the trial court that were “essential” to preparation of petitioner’s direct appeal in this capital-crime case where the State of MS seeked the death-penalty against petitioner.

By Order dated August 19, 2004, the Mississippi Supreme Court denied petitioner’s post conviction application on the basis that he had failed “to make a substantial showing of the denial of a state or federal right pursuant to Miss.Code Ann. § 99-39-27(5).” Exhibit F to Answer.

Thereafter, on November 12, 2004, petitioner filed a second post-conviction petition (the “Second UPCCR Motion”) in which he raised the following two issues (as stated by petitioner):

I. There exist evidence (statements) not previously submitted by the trial court in the record for appeal that will substantiate that petitioner were afforded court-appointed assistance of counsels in this capitol-case at a time when said court-appointed assistance were fraudulent and illegal, which subjected petitioner to be denied the “constitutionally-required” legal assistance of counsel, and subjected petitioner to be unfairly denied an opportunity to present-raise this evidence on direct appeal.

II. There exist newly discovered evidence (statement) that substantiate that the trial court should have included in the record for appeal the transcript of the hearing and ruling on petitioner’s motion to dismiss for ineffective assistance of counsel, which subjected petitioner to be unfairly denied an opportunity from raising and having the trial judge’s ruling reviewed by a higher court for trial court error.

Exhibit G to Answer. By Order filed December 3, 2004, the Mississippi Supreme Court dismissed the application on the basis that it was procedurally barred as a successive writ pursuant to Miss.Code Ann. § 99-39-27(9). Exhibit H to Answer.

Petitioner filed his petition for a writ of habeas corpus [1] (the “Petition”) in this court on or about October 29, 2004. The grounds asserted by petitioner are as follows (as paraphrased by the court):

Ground I: Petitioner was denied the legal assistance of counsel from 8/27/96 through 6/4/98 (when petitioner retained his own counsel), because attorneys Jim Arnold and Wallie Stuckey, Jr. fraudulently entered into the representation of petitioner without being officially appointed by the trial court as counsel of record.

Ground II: Petitioner’s conviction was obtained by the use of perjured testimony by Jim Arnold and Wallie Stuckey, Jr. at a motion hearing that they were appointed counsel when, in fact, they were not.

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

Ground IV: The trial court erred in denying petitioner’s motion for a continuance based upon illness of his defense attorney.

Ground V: The trial court erred in failing to grant petitioner’s motion for a mistrial after a prospective juror stated in voir dire that this was petitioner’s second capital murder trial.

Ground VI: The trial court erred in refusing to grant petitioner’s motion for a mistrial based on a witness’ improper comment regarding petitioner’s right to testify or remain silent.

Ground VII: The trial court committed reversible error when it refused to grant a directed verdict.

Ground VIII: Petitioner was denied fundamental fairness during the appeal process by the failure of the court reporter to provide transcripts of all proceedings leading up to his conviction.

Ground IX: Petitioner was denied fundamental fairness during the appeal process due to the failure of the Yazoo County Circuit Clerk to include in the record certain documents leading up to his conviction.

Ground X: Petitioner was denied fundamental fairness during the appeal process based upon the Yazoo County Circuit Clerk listing certain events occurring under the representation of Chokwe Lumumba that should have been attributed to defense attorneys Jim Arnold and Wallie Stuckey, Jr., thus misleading the appellate court.

Ground XI: Petitioner was denied fundamental fairness during the appeal process based upon the jury verdict and sentencing order provided in the record on appeal which fraudulently alleges that petitioner was arraigned on the capital charge while represented by Chokwe Lumumba.

Ground XII: Petitioner was denied fundamental fairness during the appeal process due to the entry of an order by the trial court permitting attorney Jim Arnold to withdraw as the attorney of record when Arnold was never officially appointed or retained to represent petitioner, thus misleading the appellate court.

Ground XIII: Petitioner received ineffective assistance of counsel due to appellate counsel knowingly preparing a brief based on an incomplete and inaccurate trial record, and failing to consult with petitioner regarding potential additional issues for appeal pri- or to filing the brief.

Ground XIV: Petitioner received ineffective assistance of counsel as a result of the lower court unlawfully permitting attorneys Jim Arnold, Jr. and Wallie Stuckey, Jr. to enter into petitioner’s case as retained counsel of record without conducting the required procedures on the record, and then allowing said attorneys to remain as counsel of record from 9/16/96 through 6/4/98 when they were not and had not been appointed as they represented themselves to be.

Ground XV: Petitioner was denied fundamental fairness during the appeal process as a result of the trial court’s failure to include in the record for appeal certain records and documents that were used in his case.

Ground XVI: Petitioner was denied legal assistance of counsel by an attorney knowingly and intentionally representing him fraudulently between 8/21/96 and 5/28/98.

Ground XVII: Petitioner received ineffective assistance of counsel by appellate counsel’s failure to raise the following issues on direct appeal:

A. That petitioner was denied effective assistance of counsel by an attorney knowingly and intentionally representing him fraudulently between 8/21/96 and 5/28/98;

B. That petitioner was denied his statutory and constitutional rights to a speedy trial;

C. That petitioner’s trial counsel were ineffective for failing to raise in the trial court that petitioner’s initial counsel committed perjury while testifying during a motion hearing;

D. That petitioner’s trial counsel were ineffective for stating in the presence of the jury that there had been a previous trial in this case;

E. That petitioner’s trial attorneys were ineffective for failing to object to the prosecution’s statement to the jury during closing arguments -that there was previous trial in this case;

F. That the trial court erred by failing to sustain petitioner’s objection to testimony by Officer Woods regarding the contents of telephone records that were not prepared by Officer Woods;

G. That the trial court erred by failing to sustain petitioner’s objection to the state admitting statements into evidence through a witness who did not make them;

H. That the trial court erred by denying petitioner’s motion to dismiss with prejudice;

I. That the trial court erred by denying petitioner’s motion to dismiss;

J. That the trial court erred by denying petitioner’s motion to nolle prosse indictment and dismiss criminal charges;

K. That the trial court erred by denying petitioner’s motion to suppress (Michael Biasello’s statement);

L. That the trial court erred by denying petitioner’s motion to quash indictment and challenge composition of grand and traverse jury pools;

M. That the trial court erred by denying petitioner’s motion to quash indictment;

N. That petitioner’s trial counsel were ineffective for failing to secure a ruling on petitioner’s motion to quash indictment;

O. That the trial court erred by failing to issue a ruling on petitioner’s motion to quash indictment;

P. That petitioner’s trial counsel were ineffective in failing to request a mistrial after petitioner’s trial counsel and the prosecutor stated in the presence of the jury that there had been a previous trial in this case;

Q. That the trial court erred in failing to instruct the jury to disregard statements made by petitioner’s trial counsel and the prosecutor regarding petitioner’s previous trial;

R. That petitioner’s trial counsel were ineffective in failing to raise during trial or in a motion for a new trial the inconsistencies in the testimony between officer Wade Woods and Molly Crow regarding the viewing of a physical line-up held on 8/21/96;

S. That the trial court erred by allowing the state’s jury instructions S-3, S-4 and S-5 over petitioner’s objections;

T. That petitioner’s trial counsel were ineffective for failing to file and raise in support of a motion for a new trial certain prejudicial errors committed during trial;

U. That petitioner’s trial counsel were ineffective for failing to raise in the trial court that petitioner’s case should be dismissed for prosecutorial and judicial misconduct;

V. That petitioner was tried, convicted and sentenced on a defective indictment which also divested the court of jurisdiction to try the case; and

W. That the trial court failed to include in the record for appeal certain documents used in this case that were “essential” to petitioner’s appeal.

Ground VIII: There exist evidence (statements) not previously submitted by the trial court in the record for appeal that will substantiate that petitioner were afforded court-appointed assistance of counsels in this eapitol-case at a time when said court-appointed assistance were fraudulent and illegal, which subjected petitioner to be denied the “constitutionally-required” legal assistance of counsel, and subjected petitioner to be unfairly denied an opportunity to present-raise this evidence on direct appeal.

Ground IX: There exist newly discovered evidence (statement) that substantiate that the trial court should have included in the record for appeal the transcript of the hearing and ruling on petitioner’s motion to dismiss for ineffective assistance of counsel, which subjected petitioner to be unfairly denied an opportunity from raising and having the trial judge’s ruling reviewed by a higher court for trial court error.

THE STANDARD OF REVIEW

As the Petition was filed after the effective date of The Antiterrorism and Effective Death Penalty Act (“AEDPA”), the AEDPA and case law interpreting it provide the standards under which the Petition must be evaluated. See Neal v. Puckett, 286 F.3d 230, 235 (5th Cir.2002), cert. denied, 537 U.S. 1104, 123 S.Ct. 963, 154 L.Ed.2d 772 (2003). As an initial matter, exhaustion of state remedies is a mandatory prerequisite to federal habeas relief under 28 U.S.C. § 2254:

(b)(1) An application for a writ of habe-as corpus on behalf of a person in custody pursuant to the judgment of a State Court shall not be granted unless it appears that—

(A) the applicant has exhausted the remedies available in the courts of the State;

or

(B)(i) there is an absence of available State corrective process; or

(ii) circumstances exist that render such process ineffective to protect the rights of the applicant.

(c) An applicant shall not be deemed to have exhausted the remedies available in the courts of the State, within the meaning of this section, if he has the right under the law of the State to raise, by any available procedure, the question presented.

To satisfy the exhaustion requirement, the petitioner must first present his claims to the highest state court in a procedurally proper manner so that it is given a fair opportunity to consider and pass upon challenges to a conviction, before those issues come to federal court for habeas corpus review. O’Sullivan v. Boerckel, 526 U.S. 838, 844-45, 119 S.Ct. 1728, 144 L.Ed.2d 1 (1999). This is so because state courts, “like federal courts, are obliged to enforce federal law.” Id. at 844, 119 S.Ct. 1728. Thus, “when a prisoner alleges that his continued confinement for a state court conviction violates federal law, the state courts should have the first opportunity to review this claim and provide any necessary relief.” Id. Exhaustion results from the petitioner’s pursuit of his claims through state courts either by direct appeal or by post-conviction proceedings. See Orman v. Cain, 228 F.3d 616, 619-20 & n. 6 (5th Cir.2000).

Along with a determination of whether the petitioner has exhausted state court remedies, this court must also determine whether the state court has decided the asserted claim on the merits, thus barring habeas relief except under very limited circumstances. AEDPA provides: “An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgement 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 fight of the evidence presented in the State court proceeding.

28 U.S.C. § 2254(d).

Federal courts review pure questions of law, as well as mixed questions of law and fact, under subsection (d)(1). Hill v. Johnson, 210 F.3d 481, 485 (5th Cir.2000); Corwin v. Johnson, 150 F.3d 467, 471 (5th Cir.1998). The “unreasonable application” inquiry is based on an objective standard, and for purposes of the (d)(1) analysis, “unreasonable” does not equate with “incorrect.” Garcia v. Dretke, 388 F.3d 496, 500 (5th Cir.2004). Rather, the application of clearly-established precedent must be both incorrect and unreasonable for federal habeas relief to be warranted. Id.

Pure questions of fact are reviewed under subsection (d)(2). Corwin, 150 F.3d at 471. Determination of a factual issue made by a state court is entitled to a presumption of correctness which the petitioner has the burden of rebutting by clear and convincing evidence. 28 U.S.C. § 2254(e)(1). See also Schriro v. Landrigan, — U.S. —, 127 S.Ct. 1933, 1939-40, 167 L.Ed.2d 836 (2007).

It is against this backdrop that petitioner’s claims must be reviewed — with the added caveat that a federal court does not “sit as a ‘super’ state supreme court” and may decide the issues presented by the habeas petition “only to the extent that federal constitutional issues are implicated.” Smith v. McCotter, 786 F.2d 697, 700 (5th Cir.1986); see also Mendiola v. Estelle, 635 F.2d 487, 491 (5th Cir.1981). “It is axiomatic that federal courts may intervene in the state judicial process only to correct wrongs of a constitutional dimension.” Wainwright v. Goode, 464 U.S. 78, 83-84, 104 S.Ct. 378, 78 L.Ed.2d 187 (1983) (citations omitted). Thus, AEDPA provides that the court “shall entertain an application for a writ of habeas corpus in behalf of a person in custody pursuant to the judgment of a State court only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States.” 28 U.S.C. § 2254(a) (emphasis added). A state’s interpretation of its own laws or rules is no basis for federal habeas corpus relief since no constitutional question is involved. Bronstein v. Wainwright, 646 F.2d 1048, 1050 (5th Cir.1981) (citations omitted).

The Procedurally Barred Claims

Respondents contend that Grounds Two, Nine, Ten, Eleven, Twelve and Thirteen were not presented to Mississippi’s highest court in a procedurally proper manner and, therefore, they are barred from review. In addition, respondents contend that Grounds Four, Seven, Eighteen and Nineteen are procedurally barred from review here because they were held to be procedurally barred from review by the Mississippi Supreme Court.

In Ground Two, petitioner asserts that his conviction was obtained through the use of perjured testimony by his first pair of attorneys, Jim Arnold and Wallie Stuckey, Jr., during a motion hearing at which they stated that they were appointed petitioner’s counsel when, in fact, they were not. See Petition at 5. Although this issue was presented to the Mississippi Supreme Court in petitioner’s UPCCR Motion in the context of an ineffective assistance of appellate counsel claim, in which petitioner asserted that his appellate counsel erred by failing to raise on direct appeal that his trial counsel were ineffective for failing to raise in the trial court the allegedly false testimony (see UPCCR Motion & Memo at Ground 111(C)), petitioner never presented Ground Two to the appellate court as a substantive claim that the allegedly false testimony led to his conviction. Thus, this claim was not exhausted. It is not enough to avoid the procedural bar that a “somewhat similar state-law claim was made.” Bagwell v. Dretke, 372 F.3d 748, 755 (5th Cir.2004), cert. denied, 543 U.S. 989, 125 S.Ct. 498, 160 L.Ed.2d 374 (2004) (citations omitted); see also Nobles v. Johnson, 127 F.3d 409, 420 (5th Cir.1997) (holding claim unexhausted even where it was related to an exhausted claim and even where “all the facts necessary to support the [unexhausted] claim were before the state courts.”).

Grounds Nine, Ten, Eleven, Twelve and Thirteen were raised in the Emergency Petition, which was filed pro se while petitioner’s direct appeal (filed by counsel) was pending in the Mississippi Supreme Court. See Exhibit B to Answer. By Order filed July 21, 2003, the Supreme Court denied the petition in toto. See Exhibit C to Answer. The issues raised in the Emergency Petition were not addressed in the Court’s appellate opinion on petitioner’s direct appeal, demonstrating that the Court did not consider those claims to be properly before it. See Shelton v. State, 853 So.2d 1171 (Miss.2003). Further, pursuant to Rule 28(c) of the Mississippi Rules of Appellate Procedure, the initial appellant’s brief and a reply brief are the only briefs that may be filed by the appellant without leave of court. The record does not reflect that petitioner sought leave of court prior to filing the Emergency Petition and, therefore, it was not properly presented to the appellate court. Nor did petitioner include these grounds in his UPCCR Motion. Thus, none of these issues were properly presented to the state courts for review and, as exhaustion would now be futile, these claims are also procedurally barred from review. See O’Sullivan, 526 U.S. at 848, 119 S.Ct. 1728 (holding that failure to present claim to state’s highest court in timely manner results in procedural default of those claims); see also Sones v. Hargett, 61 F.3d 410, 416 (5th Cir.1995) (stating that “[w]hen ... state remedies are rendered unavailable by the petitioner’s own procedural default, federal courts are barred from reviewing those claims.”).

Where a habeas claim is procedurally barred, it may be considered on the merits by a federal court under two narrow exceptions: “cause and actual prejudice” or “fundamental miscarriage of justice.” See Bagwell v. Dretke, 372 F.3d 748, 755 (5th Cir.2004), cert. denied, 543 U.S. 989, 125 S.Ct. 498, 160 L.Ed.2d 374 (2004); see also Coleman v. Thompson, 501 U.S. 722, 750, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991) (making this rule “explicit”).

To prove cause sufficient to excuse default, petitioner must establish that some external impediment prevented him from raising the defaulted claims: “ ‘Cause’ under the cause and prejudice test must be something external to the petitioner, something that cannot fairly be attributed to him.” Coleman, 501 U.S. at 753, 111 S.Ct. 2546. Examples of external factors include “interference by officials” and “a showing that the factual or legal basis for a claim was not reasonably available” to petitioner. McCleskey v. Zant, 499 U.S. 467, 493-94, 111 S.Ct. 1454, 113 L.Ed.2d 517 (1991).

Petitioner does not provide a reason as to why these claims were not raised in either his direct appeal or his UPCCR Motion. Petitioner may be arguing that the reason these claims were not raised was because of ineffective assistance of counsel. As a general matter, “[ajttorney ignorance or inadvertence is not ‘cause’ because the attorney is the petitioner’s agent when acting, or failing to act, in furtherance of the litigation, and the petitioner must ‘bear the risk of attorney error.’ ” Coleman, 501 U.S. at 753, 111 S.Ct. 2546 (citations omitted). However, where attorney error constitutes ineffective assistance of counsel under the test of Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984) and is therefore an “independent constitutional violation,” it is “cause” sufficient to excuse default. Id. at 754, 755, 104 S.Ct. 2052. In Murray v. Carrier, 477 U.S. 478, 489, 106 S.Ct. 2639, 91 L.Ed.2d 397 (1986), the U.S. Supreme Court held that before a claim of ineffective assistance of counsel can be used to establish cause to excuse a procedural default, it must be exhausted'— i.e., it must be presented as an independent Sixth Amendment claim to the highest state court in a procedurally proper manner. The Court reaffirmed this holding in Edwards v. Carpenter, 529 U.S. 446, 452, 120 S.Ct. 1587, 146 L.Ed.2d 518 (2000).

In this case, although petitioner raised numerous claims of ineffective assistance of counsel in his UPCCR Motion, he did not raise and discuss these precise claims. Additionally, petitioner no longer has the ability to exhaust these ineffective assistance of counsel claims and, therefore, they are procedurally defaulted. See O’Sullivan, 526 U.S. at 848, 119 S.Ct. 1728; Sones, 61 F.3d at 416. Accordingly, petitioner must satisfy the “cause and prejudice” standard with respect to these ineffective assistance of counsel claims themselves. Edwards, 529 U.S. at 450-51, 120 S.Ct. 1587.

Petitioner does not give a reason for why he did not raise these ineffective assistance of counsel claims in his pro se UPCCR Motion. Thus, as petitioner has failed to show cause, this court “need not consider whether there is actual prejudice.” Saahir v. Collins, 956 F.2d 115, 118 (5th Cir.1992).

In addition, petitioner cannot establish that failure of this court to consider any of these claims would result in a “fundamental miscarriage of justice.” The fundamental miscarriage of justice exception is even more circumscribed than the cause and prejudice exception and is confined to eases of actual innocence, “where the petitioner shows, as a factual matter, that he did not commit the crime of conviction.” Fairman v. Anderson, 188 F.3d 635, 644 (5th Cir.1999) (citing Ward v. Cain, 53 F.3d 106, 108 (5th Cir.1995)). To meet this exception, petitioner must offer “new, reliable evidence that was not presented at trial” and must show that it was “more likely than not that no reasonable juror would have convicted him in light of the new evidence,” Id. (citations omitted); see also Schlup v. Delo, 513 U.S. 298, 324, 327, 115 S.Ct. 851, 130 L.Ed.2d 808 (1995). Petitioner has not provided this court with any new evidence bearing on his innocence that was not presented at trial, nor has he claimed “actual innocence.” Accordingly, these claims are procedurally barred from review.

Grounds Four and Seven were raised in petitioner’s direct appeal and held to be procedurally barred by the Mississippi Supreme Court. With respect to Ground Four, the Court held “that when a denial of a continuance is not included as an assignment of error in a motion for new trial, the issue is not appropriate for appellate review.” See Shelton, 853 So.2d at 1182. As for Ground Seven, the Court found that petitioner had waived his appeal of the trial court’s denial of a directed verdict when he chose to proceed with his case after the state had rested, and by his failure to make a motion for a judgment notwithstanding the verdict or for a new trial. Id. at 1186. Grounds Eighteen and Nineteen were set forth in petitioner’s Second Petition, which the Mississippi Supreme Court held was “procedurally barred as a successive writ and should be dismissed” pursuant to Miss.Code Ann. § 99-39-27(9). See Exhibit H to Answer.

If "a state court declines to hear a prisoner’s ... claims because the prisoner failed to fulfill a state procedural requirement, federal habeas is generally barred if the state procedural rule is independent and adequate to support the judgment,” Sayre v. Anderson, 238 F.3d 631, 634 (5th Cir.2001). When, as in this case, the state court “clearly and expressly states that its judgment rests on a state procedural bar, a presumption arises that the state court decision rests on independent and adequate state law grounds.” Pitts v. Anderson, 122 F.3d 275, 279 (5th Cir.1997). The petitioner may overcome this presumption by establishing that “the state did not strictly or regularly follow a procedural bar around the time of his direct appeal” and that “the state has failed to apply the procedural bar rule to claims identical or similar to those raised by the petitioner himself.” Stokes v. Anderson, 123 F.3d 858, 860 (5th Cir.1997). As petitioner has made no such assertions, much less the requisite showing that Mississippi did not strictly or regularly follow this procedural bar, this court cannot do other than conclude that petitioner’s failure to comply with Mississippi’s procedural rules acted as independent and adequate grounds for the Mississippi Supreme Court’s decision and precludes habeas consideration of the barred claims. Moreover, although—as discussed supra—the court may review defaulted claims if the petitioner can meet either the “cause and prejudice” or “fundamental miscarriage of justice” tests, petitioner has neither claimed nor shown that either exception applies with respect to these claims. Accordingly, the court is barred from reviewing these claims.

Claims Considered on Their Merits

Grounds One. Fourteen and Sixteen

In Ground One, petitioner claims that he was denied the assistance of counsel from 8/27/96 through 6/4/98 (when he retained his own counsel), because attorneys Jim Arnold and Wallie Stuckey, Jr. fraudulently entered into their representation of him without being officially appointed by the trial court as counsel of record. Petition at 5; see also Emergency Petition at 41-45. In Ground Sixteen, petitioner claims that he was denied legal assistance of counsel, for the same reason, from 8/21/96 through 5/28/98. Petition at 13; see also UPCCR Motion at Ground n. In Ground Fourteen, petitioner claims that he was denied effective assistance of counsel as a result of the lower court unlawfully permitting Arnold and Stuckey to enter into petitioner’s case as retained counsel of record, and allowing them to remain as counsel of record, when they had not been appointed. Petition at 11-12; see also Emergency Petition at 41-45.

As noted by respondents, petitioner presents no evidence to support these allegations. It is true that there is no written order in the record appointing Arnold and Stuckey as counsel of record. However, respondents have provided an affidavit from Susie Bradshaw, the Circuit Clerk of Yazoo County, who avers that as a matter of general practice, the Circuit Court of Yazoo County does not enter written orders appointing counsel in criminal cases, and certifies that Arnold and Stuckey were appointed to represent petitioner on the capital murder charge. Exhibit J to Answer. In addition, there are numerous pre-trial motions in the record filed by Arnold and Stuckey on petitioner’s behalf during this time period, including motions to suppress, motion for a change of venue, motion for a psychiatric evaluation and discovery-related motions. See, e.g., SCR vol. 1, pp. 21-24, 27-29, 34-35, 38-39, 43-45, 47-48, 66-70, 90-92. Moreover, in a letter to the court dated August 15, 1997, petitioner referred to Arnold and Stuckey as “my state appointed lawyers” and requested (for various reasons) that they be dismissed from his representation, which belies petitioner’s contention that they were not, in fact, appointed to represent him. See id. at 58. The record also reflects that, at petitioner’s request, Arnold made a motion to withdraw from his representation of petitioner, which was granted by the trial court on July 2, 1998. Id. at 107-09. Such a motion would not have been necessary had Arnold not been appointed as petitioner’s counsel in the first place.

In light of the foregoing, the court finds that this claim has no merit and, therefore, habeas relief should be denied.

Ground Three

In Ground Three, petitioner claims that the trial court erred by refusing to suppress the pre-trial identification evidence and by allowing the in-court identification testimony of Molly Crow and Katie Crow (the victim’s daughters), because their identification was unreliable. In addition, petitioner claims that he was not represented by counsel at the physical lineup when he was identified by Molly and Katie Crow. Petition at 8; see also Shelton, 853 So.2d at 1175; Brief of Appellant on direct appeal, in “Briefs and Other Pleadings” volume of SCR.

On January 11, 1999, petitioner’s attorneys moved to suppress as evidence the testimony of any witness as to pre-trial identifications of petitioner and to prohibit any in-court identification by the witnesses. On January 21 and January 25, the court conducted a lengthy hearing on this motion, at which Katie and Molly Crow, as well as several other witnesses, testified. By Order dated January 25, 1999, the court denied the motion to suppress, finding: “That the defendant was identified by the witnesses in a lineup. The Court finds no evidence that the Identification was made due to improper suggestion by law enforcement or others to the witnesses identifying the Defendant.” SCR vol. 4, pp. 474-76, 552; SCR vols. 6-9, pp. 60-268, 281-482.

In Neil v. Biggers, 409 U.S. 188, 199-200, 93 S.Ct. 375, 34 L.Ed.2d 401 (1972), the U.S. Supreme Court set forth the factors to be used in evaluating the likelihood of misidentification, even where the confrontation procedure was suggestive: 1) the opportunity of the witness to view the criminal at the time of the crime; 2) the witness’ degree of attention; 3) the accuracy of the witness’ prior description of the criminal; 4) the level of certainty demonstrated by the witness at the confrontation; and 5) the length of time between the crime and the confrontation.

With respect to the first factor, at the suppression hearing Molly and Katie Crow each testified that they had the opportunity to see petitioner twice on the day their mother was killed — the first time was approximately two hours before their mother was killed when petitioner was browsing in their mother’s store, and the second time was just before discovering their mother’s body on the floor of the store, when they saw petitioner exit the store carrying their mother’s purse and money bag. Katie Crow testified that although she only looked at petitioner for a short period of time, she “looked at him well enough to — I mean, I didn’t glance and look away.” She explained that she paid more attention to petitioner than she otherwise would have, because her mother had told her and Molly that he was making her nervous and she did not want to be alone with him in the store. Molly also testified that while petitioner was in the store, she was looking at him “every chance” she had, because her mother had said she was suspicious of him. SCR vols. 6-7, pp. 65-66, 69-73, 105-07, 125-26, 128, 133-34, 136-37, 150, 154, 163.

With respect to the accuracy of their description, Katie testified that she initially told the police the perpetrator was black, fairly skinny, about five feet, six inches tall, with a beard, acne and pockmarks on his face, approximately 36 years old, and wearing a dark plaid shirt and tan blue jeans. Molly told the police that the perpetrator had facial hair, a scarred face, was wearing a white cap, and was in his 30’s. At the suppression hearing, Molly testified that she saw acne marks on petitioner’s face. Wade Woods, the Assistant Chief of Police for Yazoo City at the time, testified at the suppression hearing that Katie and Molly’s description of the perpetrator was similar to the description given by Tommy and Joseph Brown. The Brown brothers identified petitioner as the man who was hanging around their work site just before the murder and whom they saw walking in the direction of the scene of the murder, which was approximately eighty yards from their worksite. Chief Woods also testified that the height estimates from various witnesses were all in the range of five feet, six inches to five feet, eleven inches tall. Mary Wilson, a witness, told police that the perpetrator was five feet, seven inches tall. She also gave a written statement that petitioner looked like the person she had seen at the store, and she picked his photograph out of the photo spread, as well as positively identifying him in the physical lineup. Mary Carter, another witness, testified that she told police the perpetrator was a black male, between five feet, six inches and five feet, eight inches tall, and that he had “some hair on his face.” She also called the police the day after the lineup (when she had been unable to identify anyone) and told them that it was petitioner. SCR vols. 6-8, pp. 74-79, 97-98, 129-30, 132, 155, 157, 177, 199, 241-47, 343-44, 367, 381-436.

With respect to the fourth factor, the Crow girls expressed a high level of certainty about their identification of petitioner. Katie testified that at the first lineup, on August 18, 1999 (two days after the crime), she picked out the man she thought looked “most like” the perpetrator, but said that she could not make a positive identification. She was also shown pictures of various suspects, and she picked out some people, including petitioner, who looked “ “most like” the perpetrator, but she did not make a positive identification.” At the second lineup, the next day, Katie did not pick out anyone. However, at the third and final lineup, on August 21, 1999, Katie picked out petitioner as the perpetrator. Katie said she had no doubts when she picked out petitioner from that final lineup. She was asked why she had not picked out petitioner from the photograph, and she explained that “seeing somebody in person and seeing them in a photograph is different,” and that she wanted to be sure about whom she picked. SCR vol. 6, pp. 83-90,108-14.

Molly also testified that she had viewed three lineups. At the first lineup, on August 18, she picked out someone who looked like the perpetrator, but did not positively identify him. At the second lineup, on August 19, she did not pick out anyone as looking like the perpetrator. She testified that she was also shown many photographs of suspects, but that she did not positively identify anyone, although she did pick out petitioner and say that he looked familiar. Molly testified that she was positive at the time of the lineup, and positive at the suppression hearing, that she had identified the right man. Katie and Molly both unequivocally identified petitioner at the suppression hearing as the person they had seen in their mother’s store that day, and the person they had seen leaving the store carrying her purse. SCR vols. 6-7, pp. 107-08, 120, 123-24, 154-55, 159, 161-62, 164-65, 169.

As for the fifth factor, the record reflects that both girls positively identified petitioner from a physical lineup five days after the murder. SCR vols. 6-7, pp. 108, 162-165, 242.

On petitioner’s direct appeal, the Mississippi Supreme Court conducted a Biggers analysis, ultimately concluding as follows:

All of the five Biggers factors favor admissibility in this case. Both girls saw Shelton during their two visits to their mother’s store on August 16, 1996. Just moments after seeing Shelton leaving the store with their mother’s purse and money bag. Molly found her mother injured and bleeding on the floor of the store. In addition, both girls gave testimony that their mother was concerned about the man in the store; and therefore, the girls paid particular attention to the man and looked at him. Further, both girls stated that the man who left the store at 5:00 p.m. was the same person who had been in the store earlier that day. Both girls were positive that they had identified the correct man at the lineup as the person that had been in their mother’s store. Finally, the girls arrived at the store as Shelton was leaving, and within five days of the injury and subsequent death of their mother, the girls identified Shelton in a lineup. Looking at the totality of the circumstances, substantial and credible evidence supported the trial court’s ruling to admit the evidence. We find that the testimony was sufficient for the identification to be admissible without any likelihood of misidentification or irreparable identification. This issue is without merit.

Id. at 1180. Based on the record in this case, this court finds that the Mississippi Supreme Court’s decision on this issue was neither contrary to, nor involved an unreasonable application of, clearly established Federal law.

As for petitioner’s contention that he was not represented by counsel at the lineup, this claim is completely ■without merit. Chief Woods testified that attorney Jim Arnold was present during the lineup, identified himself as counsel of record, and signed the identification sheets as petitioner’s attorney. SCR vol. 8, pp. 388-39. Petitioner raised this issue on direct appeal, and the Mississippi Supreme Court determined that “Shelton is mistaken in his assertion that he was not represented by counsel at the time of the lineup.” Shelton, 853 So.2d at 1179. Based on the record, this court finds that this was not an unreasonable determination of the facts.

For the foregoing reasons, this claim for habeas relief should be denied.

Ground Five

In Ground Five, petitioner claims that the trial court erred in failing to grant petitioner’s motion for a mistrial after a prospective juror stated during voir dire that this was petitioner’s second capital murder trial. The focus of this claim appears to be on prospective juror Makeba Wilson. Petition at 8; see also Shelton, 853 So.2d at 1183; Brief of Appellant on direct appeal, in “Briefs and Other Pleadings” volume of SCR

The record reflects that during individual voir dire (death penalty qualification), the following exchange occurred between the State and Ms. Wilson:

State: Yeah. We probably all would agree on that. Now, first to explain something about the system, and the Judge just explained to you that if we did get to a second phase, that you have to listen to the instructions and weigh things. Now, you have said your beliefs here, if we do get to the second phase, if you’re selected to sit on this jury and we get to a second phase, that will mean that you, in your mind, beyond a reasonable doubt, have found Mr. Shelton guilty of murder in which he’s accused of. That will be the first phase. I’m saying if you found that. If you found that, then that will be the murder. I mean that would be what you’re going in on. So knowing that and what opinion you gave us here, would you go into the penalty phase saying, “Well, he should be put to death?”

A. Well, no I wouldn’t. I mean just, well, but, well, I’m going to say this right here: I’ve heard some people say up in here that he had a trial before, and it was a hung jury, so I mean I can’t say that if he’s going to be guilty or not guilty.

Q. Okay. Well, would that fact enter your mind in any way as far as a trial that you heard that he had a trial before?

A. No, it ain’t going to affect me at all. I mean it’s just something I heard. I mean it wouldn’t affect my decision if I’m on the jury.

SCR vol. 13, pp. 1091-92.

Later during individual voir dire, Wilson was questioned by defense counsel, in part, as follows:

Q: And, now, I would request permission from the court to inquire as to what is the source of the statement that there was a hung jury.

Court: Okay, you may.

Q: Ms. Wilson, I thank you for raising that with us that someone had said there was a hung jury; right?

A: Yes.

Q: Where did you hear that at?

A: You —