Case: 1:13-cv-00022-MPM-DAS Doc #: 10 Filed: 07/11/13 1 of 6 PageID #: 1284
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF MISSISSIPPI
CIVIL ACTION NO.: 1:13cv22-MPM-DAS
LAWRENCE MACK, et al.
MEMORANDUM OPINION AND ORDER
Petitioner, Joe Solomon Pruitt, Mississippi prisoner no. 128969 proceeding pro se, has
filed a federal habeas petition pursuant to 28 U.S.C. § 2254, seeking to challenge his State court
conviction and sentence for armed robbery. Having considered the submission of the parties, the
State court record, and the law applicable to Petitioner’s claims, the Court finds that the petition
should be denied, for the reasons that follow.
Facts and Procedural History
Petitioner was indicted, along with James Person and Alonzo Jones, for the armed
robbery of Renasant Bank in Smithville, Mississippi, on March 14, 2006. At Petitioner’s trial,
the prosecution alleged that two of the men entered the bank wearing ski masks, while the third
man stayed in the vehicle, which was backed into a handicapped space in the bank’s parking lot.
One of the men who entered the bank had a gun, which was brandished during the robbery. After
robbing the bank, the men fled in their vehicle. All three men were later located and arrested
together. Jones and Person each gave statements to law enforcement implicating all three men in
the armed robbery. Both Jones and Person pleaded guilty to armed robbery and testified against
Petitioner at trial. Petitioner’s defense was that the robbery was planned and executed without
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his knowledge, and that he merely happened to be the driver when Jones and Person robbed the
On March 7, 2007, Petitioner was convicted of armed robbery in the Circuit Court of
Monroe County, Mississippi, and was sentenced to a term of thirty-five years in the custody of
the Mississippi Department of Corrections. Petitioner appealed his conviction and sentence
raising only one issue, a Batson challenge. On July 24, 2008, the conviction and sentence were
affirmed. See Pruitt v. State, 986 So.2d 940 (Miss.App. 2008). Petitioner then attempted to seek
federal habeas relief in this Court, raising a Batson claim and a claim that he had “newly
discovered evidence” that would show a witness lied at his trial. See Pruitt v. State of
Mississippi, Cause No. 1:09cv82-A-D. The Court dismissed the petition without prejudice based
on Petitioner’s failure to fully exhaust his claims prior to seeking federal habeas relief. See id.,
2009 WL 2482177 (N.D. Miss. August 11, 2009).
Petitioner subsequently sought post-conviction relief, and the Mississippi Supreme Court
issued an order granting Petitioner leave to file a motion for post-conviction relief on the issue of
whether a key witness had recanted his trial testimony against Petitioner. (See Respt’s Exs. B
and C, Cause No. 2010-M-265). Petitioner alleged that he had a sworn affidavit from co-
defendant and trial witness, James Person, that stated Person, along with another co-defendant,
had planned and executed the robbery of the bank without the participation of Petitioner. By
order filed October 27, 2010, the trial court denied Petitioner’s motion. (See id., Ex. D). The
Five years of Petitioner’s sentence were suspended, leaving him with thirty years to
serve in the custody of the Mississippi Department of Corrections. (R. at 83-84).
Batson v. Kentucky, 476 U.S. 79 (1986) (prohibiting the exercise of peremptory
challenges against potential jurors on the basis of their race).
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court found that Person was not an indispensable witness, and that, therefore, his recanted
testimony would not result in a different outcome for Petitioner. (See id.). On appeal, Petitioner
argued that the rejection of this claim was error. The appellate court rejected Petitioner’s claims
and affirmed the circuit court’s denial of his motion for post conviction relief. See, e.g., Pruitt v.
State, 100 So.3d 971 (Miss.App. 2012), reh’g denied, August 28, 2012, cert. denied, November
8, 2012 (Cause No. 2010-CP-00265).
Petitioner filed the instant federal habeas petition on or about February 6, 2013, alleging
that “there is new evidence of the recanted testimony of the state’s key witness, James Person,”
that he was denied due process by the State court’s failure to grant a hearing and ultimately grant
relief on this issue, and that the he was denied the right to a fair trial. (See ECF no. 1, pp. 4-5).
The Court’s review of Petitioner’s claim is governed by the Antiterrorism and Effective
Death Penalty Act of 1996 (“AEDPA”), because his federal habeas petition was filed after the
statute’s effective date. See Lindh v. Murphy, 521 U.S. 320 (1997). The AEDPA prevents the
grant of federal habeas relief on any claim adjudicated on the merits in state court unless that
adjudication (1) resulted in a decision that was contrary to, or involved an unreasonable
application of, clearly established United States Supreme Court precedent; or (2) resulted in a
decision that was based on an unreasonable determination of the facts in light of the presented
evidence. See 28 U.S.C. § 2254(d)(1) & (2); Schriro v. Landrigan, 550 U.S. 465, 473 (2007).
Petitioner claims that he was denied due process by the State court’s failure to hold an
evidentiary hearing and grant relief on his claims based on the recanting affidavit of his co-
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defendant. However, the Supreme Court has determined that a state court’s decision not to hear
a “newly discovered evidence” claim will violate due process only where the decision
transgresses “a principle of fundamental fairness ‘rooted in the traditions and conscience of our
people.’” Herrera v. Collins, 506 U.S. 390, 411 (1993). To the extent Petitioner attempts to
claim actual innocence of the crime in order to meet that standard, the Court notes that such
claims “have never been held to state a ground for federal habeas relief absent an independent
constitutional violation occurring in the underlying state criminal proceeding.” Herrera, 506
U.S. at 400; Coleman v. Thaler, 2013 WL 2264347 (5 Cir. May 23, 2013); Graves v. Cockrell,
351 F.3d 143, 151 (5 Cir. 2003). Rather, actual innocence is a “gateway” claim made by
petitioners in order to receive review of an otherwise procedurally barred claim. See, e.g.,
Dowthitt v. Johnson, 230 F.3d 733, 741 (5 Cir. 2000). There are no procedural bars at issue in
Petitioner’s case, and Petitioner is not entitled to habeas relief based on a claim of actual
The Fifth Circuit has noted that the Supreme Court has left open the possibility that a
“truly persuasive actual innocence claim” could establish a constitutional violation in a capital
case. Graves, 351 F.3d at 151 (quoting Herrera v. Collins, 506 U.S. 390, 417 (1993)).
However, this is not a capital case. Additionally, such a claim could be the basis for federal
habeas relief only if there was no available state procedure for making such a claim. Herrera,
506 U.S. at 417. Mississippi law provides for claims of new evidence in its post-conviction
statutes. See, e.g., Miss. Code Ann. § 99-39-27(9).
Moreover, Petitioner’s evidence is not “exculpatory scientific evidence, trustworthy
eyewitness accounts, or critical physical evidence” such that “it is more likely than not that no
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reasonable juror would have found petitioner guilty beyond a reasonable doubt.” Schlup v. Delo,
513 U.S. 298, 324 (1995); see also House v. Bell, 547 U.S. 518, 536-37 (2006); White v. Thaler,
2013 WL 1442568 (5 Cir. April 1, 2013) (finding that even if freestanding claim of actual
innocence were cognizable in federal habeas, evidence presented would not be sufficient to merit
relief “even under the Schlup standard of review”). Rather, Petitioner’s evidence is recantation
evidence, which is viewed with extreme suspicion. Baldree v. Johnson, 94 F.3d 659, 663 (5th
Cir. 1996); May v. Collins, 955 F.2d 299, 314 (5 Cir. 1992).
At Petitioner’s trial, both Jones and Person testified that Petitioner entered the bank with
a gun and robbed it with Person, while Jones stayed in the car. Two bank employees testified
that they knew Jones prior to the robbery, as he had been an employee of Loomis, an armored car
company that made deliveries to the bank. They testified that the men who robbed the bank were
too large to be Jones. Therefore, even accepting Person’s sworn statement as true, it is not
probable that it would have produced a different verdict. See Dobbert v. Wainwright, 468 U.S.
1231, 1233-24 (1984) (Brennan, J., dissenting from the denial of certiorari). In sum, Petitioner
has not demonstrated that the decision rejecting his claim is unreasonable, and habeas relief will
Certificate of Appealability
Pursuant to Rule 11(a) of the Rules Governing § 2254 Cases, this Court must issue or
deny a certificate of appealability (“COA”) upon entry of a final order adverse to the petitioner.
Petitioner must obtain a COA before appealing this Court’s decision denying federal habeas
relief. 28 U.S.C. § 2253(c)(1). A COA will not issue unless Petitioner makes “a substantial
showing of the denial of a constitutional right” of any claim rejected on its merits, which
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Petitioner may do by demonstrating that “reasonable jurists would find the district court’s
assessment of the constitutional claims debatable or wrong.” § 2253(c)(2); Slack v. McDaniel,
529 U.S. 473, 484 (2000). Applying this standard, the Court finds that a COA should be denied
in this case.
The Court determines that none of the claims raised by Petitioner warrant federal habeas
relief. It is hereby ordered that Petitioner’s petition for a writ of habeas corpus is DENIED and
DISMISSED WITH PREJUDICE. A certificate of appealability is DENIED. Any pending
motions are dismissed as moot. A final judgment in accordance with this opinion and order will
SO ORDERED, THIS the 11 day of July, 2013.
/s/ Michael P. Mills
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF MISSISSIPPI