Opinion
Civil Action No. 4:04-CV-45-TSL-JCS.
June 5, 2006
REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
I. Procedural History
Donald Ray Pitts was convicted by a jury of manslaughter after a trial on June 18-20, 2001, in the Circuit Court of Wayne County, Mississippi. He was sentenced on August 27, 2001, to serve a term of twenty [20] years imprisonment in the custody of the Mississippi Department of Corrections.
Pitts appealed his conviction and sentence through different counsel to the Mississippi Supreme Court, assigning the following errors as grounds for reversal:
A. The court erred in not granting the defendant's request for a continuance.
B. The court erred in giving state instruction S-3, the manslaughter instruction, which had statutory elements missing, and made reference to self-defense, a defense not argued.
C. The prosecutor repeatedly committed error during closing argument, by emphasizing the flight of the defendant as guilt, and the violent history of the defendant.
D. The defendant's manslaughter conviction should be reversed on grounds that the jury verdict was against the overwhelming weight of the evidence.
On December 17, 2002, the Mississippi Court of Appeals affirmed Petitioner's judgment of conviction and sentence in a written opinion. Pitts v. State, 832 So.2d 1281 (Miss.App. 2002), cert. denied March 27, 2003 (Cause No. 2001-KA-01703-COA) .
On December 10, 2003, Pitts filed an "Application to Proceed in the Circuit Court of Wayne County with Motion to Vacate Conviction" in the Mississippi Supreme Court, raising the following claims of ineffective assistance of counsel:
1. Failure to investigate and call witnesses to support Pitts' theory of the case.
2. Failure to challenge prospective jurors who were ultimately chosen as jury members.
3. Failure to attempt to have Pitts' statement suppressed.
4. Pitts should have testified.
5. Failure to object to State instruction S-3/failure to object to prosecutor's remarks during closing argument.
6. Ineffective assistance of appellate counsel.
By Order filed February 25, 2004, the Mississippi Supreme Court denied the petition, holding that the appellant failed "to make a substantial showing of the denial of a state or federal right as required by Miss. Code Ann. § 99-39-27(5)." Exhibit B to Respondents' Answer.
All references to exhibits are to those contained in the Respondents' Answer.
On March 9, 2004, Pitts filed his Petition for Writ of Habeas Corpus in this Court, assigning substantially the same grounds that he previously raised in the state courts on direct appeal and in his motion for post-conviction relief, set forth by the Petitioner as follows:
1. The court erred in not granting a continuance.
2. The court erred in giving State Instruction S-3.
3. Inflammatory and prejudicial comments made by prosecutor during closing argument.
4. Insufficiency of evidence.
5. Ineffective assistance of counsel.
The Respondents assert 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 Pitts's petition.
II. 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 light of the evidence presented in the State court proceeding.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 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. Id. 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, "[t]o 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(d)(1) (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).
III. Facts
The evidence reflects that late on the night of May 5, 2000, and the morning of May 6th, Donald Ray Pitts argued with his girlfriend, Sheba Cochran, while shooting pool at a bar, the Highnoon. They left in her truck and stopped on the road and continued to argue. According to Sheba, Pitts hit her in the face. While they were on the road outside the truck, Sheba's brother, Cecil Richardson, as well as his friend Roger Shauger and two women, drove up and found Pitts and Sheba. Sheba told her brother Pitts had beaten her, and Pitts drove off in her truck. After getting the women home, Richardson and Shauger left to follow Pitts, purportedly to retrieve Sheba's truck. Sheba's daughter's testimony, and other evidence, implied that Pitts stopped at Sheba's house and got Sheba's single shot .410 shotgun after the confrontation.
Richardson and Shauger found Pitts at Fisherman's Nook in rural Wayne County. Shauger testified that Richardson was not armed but that Shauger was carrying a wooden tire thumper. According to Shauger, Pitts pointed a gun at them. Shauger started to get in Sheba's truck, at Richardson's direction, because that was why they were there, to retrieve the truck. Richardson approached Pitts as Shauger entered the truck, and Shauger heard a gunshot. Richardson opened the passenger door of the truck and climbed in, and he had been shot in the chest. Shauger began to drive away, and another shot rang out, breaking the window and hitting Shauger in the head. He drove on to a nearby home, with Richardson directing him. Richardson survived for a while but died from his wounds that morning. Shauger recovered.
The shotgun was retrieved from Pitts when he was arrested the following day, and Sheba testified that it was her shotgun. The tire thumper was found at the scene, along with two hulls from a.410 shotgun, and a piece of shovel handle that belonged to Richardson's father, Frankie.
Expert testimony indicated that there was no gunshot residue on Richardson. Pitts called three witnesses, including Louvena Hinton, the owner of a home close to where the shooting occurred. Ms. Hinton testified that she heard three shots that night. R. 301-307. Carol Malone, the owner of the home to which Richardson and Shauger fled, testified as to Richardson's last words. R. 308-319. Linda Tyner also lived in the area and testified that she heard a woman's voice at the shooting that night. R. 319-336. Pitts did not testify on his own behalf, but the statement he gave after he was arrested was admitted into evidence.
Pitts was represented at trial by court appointed attorney Leslie Roussell, Laurel, Mississippi, and on appeal by attorney Anthony J. Buckley, Laurel, Mississippi. The State was represented by Assistant District Attorneys Dan Angero and Lisa Howell. The Honorable Circuit Judge Robert W. Bailey presided at the trial.
IV. Discussion of Assigned Errors and the Applicable Law A. Did the Trial Court's Failure to Grant a Continuance Render Pitts's Trial Unfair? (Ground 1)Pitts was arrested and charged on May 6, 2000, and indicted in January, 2001. The trial was initially scheduled for March 7, 2001, and then reset for March 15, 2001. A request for a continuance by the Petitioner was granted, and the trial was reset for June 18, 2001. Four days prior to trial, Pitts requested another continuance. The trial judge conducted a hearing on this motion and ultimately denied the continuance. R. 6-15.
At the hearing, Pitts's counsel, Mr. Roussell, contended that Pitts had just become financially able to hire an investigator and that the investigator needed more time to discover evidence to prove the defense. Mr. Roussell argued that he needed to talk to several witnesses who were in three different states; that he needed more time to study a crime lab report on gunshot residue that he was given on June 13, 2001; and, that he needed to find the ambulance drivers who took Richardson and Shauger to the hospital.
The court of appeals held that the trial judge did not abuse his discretion in failing to grant the continuance, since Pitts had had ample time to interview witnesses, he had had one continuance, and he did not explain what further examination of gunshot residue would have shown that would have aided his defense. Unless the Petitioner can show that this state court decision was an unreasonable application of clearly established federal law, this Court cannot grant habeas relief.
Petitioner has failed to make such a showing. Generally, a denial of a continuance does not constitute a basis for habeas relief. In order for it to do so, the denial of the continuance must have been so arbitrarily and fundamentally unfair so as to violate the constitutional principles of due process. Johnson v. Puckett, 176 F.3d 809, 822 (5th Cir. 1999). Even if it is shown that the trial court did abuse its discretion, a habeas petitioner must also show that there is a reasonable probability that the verdict might have been different had the continuance been granted. Schrader v. Whitley, 904 F.2d 282, 288 (5th Cir. 1990) (quoting Hicks v. Wainwright, 633 F.2d 1146, 1148 (5 th Cir. Unit B., 1981) (emphasis added).
Pitts cannot and has not met this stringent standard. The court's failure to grant a continuance simply is not a constitutional violation under these circumstances. Pitts has not shown what he would have discovered from the ambulance drivers, or other witnesses, which would have established his innocence. He has also not shown why these witnesses could not have been contacted during the year after the incident, even without an investigator. The state court's decision did not unreasonably apply clearly established federal law.
B. Did the Granting of Instruction S-3 Render Pitts' Trial Unfair? (Ground 2)
In his second ground for relief, Pitts contends that the trial court should not have granted jury instructions S-3, the manslaughter instruction, because it did not contain two essential elements, ("but in a cruel or unusual manner, or by the use of a dangerous weapon, without authority of law"), and that it did include the words "not in necessary self-defense." R. 73. The law which proscribes the heat of passion manslaughter, requires that the killing without malice be done in a cruel or unusual manner, or by the use of a dangerous weapon. Miss. Code Ann. § 97-30-35 (Rev. 2000). Pitts primarily complains that no reference to a weapon is contained in S-3. Further, he contends that his defense was that the death occurred due to an accident, rather than self-defense. The state court found that the elements omitted from S-3 were specifically included in another instruction, D-9a, which does refer to a shotgun. R. 76. CitingMorgan v. State, 741 So.2d 246, 253 (Miss. 1999), the court held that jury instructions should be read as a whole in order to determine if the jury was properly instructed as to the elements of a crime. It concluded that the jury was properly instructed by the overall instructions. It also found that Pitts actually did use self-defense as the basis for his struggle with Richardson. Since the trial court allowed an instruction dealing with Pitts' theory of accident, the court found the jury was adequately instructed as to the crime and as to Pitts's defenses.
Pitts even states in his Petition that he claimed "accident during self defense" as his defense to the crime. Petition, p. 6B.
We have reviewed this decision of the state court and find that it does not violate any clearly established Federal law. Generally, challenges to jury instructions may not form a basis for federal habeas corpus relief. Gilmore v. Taylor, 508 U.S. 333, 343-44 (1993); Estelle v. McQuire, 502 U.S. 62, 71-72 (1991). The relevant inquiry is whether the failure to give an instruction "by itself so infected the entire trial that the resulting conviction violates due process." Cupp v. Naughten, 414 U.S. 141, 147 (1973); Mayabb v. Johnson, 168 F.3d 863 (5th Cir. 1999), citing Henderson v. Kibbe, 431 U.S. 145, 154 (1977). Such is certainly not the case under Pitts's circumstances. Due process was not violated. It is not a clearly unreasonable application of this law for the state courts to find that the jury was adequately instructed on the elements of the crime of manslaughter, as well as on Pitts's defenses.
C. Were the Prosecutor's Remarks So Inflammatory So as to Violate Due Process? (Ground 3)
The Petitioner contends that two instances of prosecutorial misconduct occurred during the closing arguments that constitute "reversible error." Prosecutorial misconduct based upon closing argument rarely amounts to a constitutional violation so as to establish a basis for habeas relief, and it is irrelevant whether it was "reversible error" under state law. The Petitioner contends that the prosecutor commented on the fact that he left the scene, even though no flight instruction was given. Further, the prosecutor commented on Pitts's history of beating his girlfriend and his violent nature. The court of appeals held that considerable latitude must be given counselors in closing arguments, particularly when responding to counsel opposite.
Specifically, the prosecutor quoted "[t]he wicked flee when no man pursueth, but the righteous are as bold as lions." R. 389.
The Petitioner has not shown that the state court's decision was an unreasonable application of any clearly established federal law. Further, he has failed to meet the test for federal habeas relief applicable to improper prosecutorial argument, i.e., that the "misconduct [was] persistent and pronounced or that the evidence of guilt was so insubstantial" that but for the improper remarks the conviction or sentence would not have resulted. Turner v. Johnson, 106 F.3d 1178, 1188 (5th Cir. 1997) citing Jones v. Butler, 864 F.2d 348, 356 (5th Cir. 1988), cert. denied, 490 U.S. 1075 (1989) (citing Felde v. Blackburn, 795 F.2d 400 (5th Cir.), cert. denied, 484 U.S. 873 (1987)). It is a difficult task to meet this standard on collateral review: "The Supreme Court has held that a prosecutor's remarks must be more than undesirable or even universally condemnable before reversal is warranted. Instead, the prosecutor's remarks must infect the trial with such unfairness as to make the resulting conviction a denial of due process." Bell v. Lynaugh, 828 F.2d 1085, 1095 (5th Cir. 1987) citing Darden v. Wainwright, 477 U.S. 187, 192 (1986).
We have reviewed the closing arguments of counsel, R. 364-395, and find that the state court's decision was reasonable. The prosecutor was responding to defense counsel's argument for the most part, and the remarks were not unduly inflammatory. Due process was not violated.
D. Was the Evidence Presented Constitutionally Insufficient to Support the Guilty Verdict? (Ground 4)
The Petitioner also claims that the evidence was constitutionally insufficient to support the verdict. He alleges that there were only three people who witnessed the fatal shooting, and that Shauger testified he did not actually see the fatal altercation. R. 116. Further, the evidence proves that Richardson and Shauger went after Richardson with "ill intent" and that they took a shovel handle and tire thumper with them. R. 239, 313. Pitts concludes that the evidence shows that they advanced toward him with weapons, and that he accidentally shot the gun during his attempts to fend them off. He concludes that the State's evidence did not support a manslaughter verdict.
We have considered the evidence presented at Pitts's trial to determine if it is constitutionally sufficient to support the guilty verdicts under the standard set forth in Jackson v. Virginia, 443 U.S. 307 (1979). Although the Mississippi Supreme Court utilized state law cases and did not specifically cite theJackson standard, that court did find the evidence sufficient to support the verdict. In our opinion, the state court's decision was not an unreasonable application of the principles embodied in Jackson.
In Jackson, United States Supreme Court articulated the standard of review to be applied in federal habeas corpus claims that allege that a state court conviction was based on insufficient evidence. The relevant question is, "[w]hether, after viewing the evidence and the reasonable inferences which flow therefrom in the light most favorable to the verdict, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." 443 U.S. at 324; see also United States v. Smith, 203 F.3d 884, 887 (5th Cir. 2000), citing Jackson; West v. Johnson, 92 F.3d 1385, 1393 (5th Cir. 1996). Further, "[f]ederal Courts are not forums in which to relitigate state trials." Autry v. Estelle, 464 U.S. 1, 3 (1983).
The evidence to which Pitts points would support a verdict of acquittal, had the jury chosen to believe his theory of defense. However, the evidence also supports a manslaughter conviction, should the jury believe the evidence as presented by the State. The State's evidence supports a finding that Pitts went to the home of the shotgun owner, his girlfriend, and retrieved a shotgun and left. Shortly thereafter, Pitt used that shotgun to shoot Cecil Richardson. Shauger testified that Pitts had the gun in his hands just prior to the shooting, and that neither he or Richardson had a gun. Pitts admitted to having shot Richardson. The jury had the tape of Pitts's statement, and heard his side of the events. Yet, they chose to believe that the shooting constituted manslaughter under the instructions of the law and that it was unjustified under the law. The evidence, including Sheba's daughter's testimony, the gun, Pitts's statement, and Shauger's testimony, supports a finding that Pitts shot and killed Richardson without justification and not by accident or in self-defense.
The Petitioner's trial revolved around the credibility of the witnesses's testimony, as well as the evidence regarding the gun and gunshot residue recovered. The undersigned finds that, viewing the evidence in the light most favorable to the prosecution, a rational trier of fact could have found Petitioner guilty beyond a reasonable doubt based on the evidence presented. Moreover, it is well-settled that a federal court may not substitute its own judgment regarding the credibility of witnesses for that of the state courts. Marter v. Blackburn, 777 F.2d 1007, 1012 (5th Cir. 1985); Dunn v. Maggio, 712 F.2d 998, 1001 (5th Cir. 1983). The state court's decision did not unreasonably apply Jackson, and no habeas relief may be granted based upon the sufficiency of the evidence.
E. Did Pitts Receive Constitutionally Ineffective Assistance of Counsel? (Ground 5)
The Mississippi Supreme Court considered Pitts's allegations that his trial counsel was constitutionally ineffective in his representation. That court rejected the claims without explanation, other than a statement that no federal or state right violation was shown. We are aware that the Mississippi Supreme Court analyzes all Sixth Amendment claims under the standard set forth in Strickland v. Washington, 466 U.S. 668 (1984). The Strickland standard for determining the effectiveness of counsel is a two-prong test set forth by the Supreme Court. Obviously applying Strickland to Pitts's claims regarding his attorney, the Mississippi Supreme Court found that no constitutional violation existed. The Strickland case provides "clearly established federal law" regarding claims of ineffective assistance of counsel. Unless the Mississippi court's decision was an unreasonable application of Strickland, no habeas relief may be granted.
Pitts charges six claims of deficiencies against his counsel, set forth as follows:
A. Failed to interview, subpoena or call Louise Sumrall and Brent Malone to testify.
B. Failed to challenge prospective jurors, including a 911 dispatcher, and a friend of the victim's family.
C. Failed to have Pitts's statement suppressed.
D. Would not allow Pitts to testify on his own behalf.
E. Failing to object to jury instruction S-3.
F. Failing to object to the prosecutor's closing argument.
To sustain claims of adequate assistance of counsel, a defendant usually must meet the standards of Strickland v. Washington, which require proof that "counsel's performance was deficient" and "the deficient performance prejudiced the defense" so gravely as to "deprive the defendant of a fair trial; a trial whose result is unreliable." Strickland, 466 U.S. at 687, 688. Thus, both a deficiency and resulting prejudice must be shown.United States v. Lewis, 786 F.2d 1278, 1281 (5th Cir. 1986).
We have reviewed the alleged instances of ineffectiveness and find that no deficiencies have been established. Pitts contends that his counsel should have located and called witnesses Brent Malone and Louise Sumrall. The State did subpoena both of these persons, and Ms. Sumrall was also subpoenaed by the defense. Clerk's Papers, pp. 61, 62, 99. However, neither witness was called to testify at trial. Mrs. Malone, Brent Malone's wife, was called by the defense. Mr. and Mrs. Malone owned the house that Richardson and Sauger went to after being shot. According to Pitts, Mr. Malone gave a statement during the investigation that Richardson and Shauger told Malone that if they had not kept harassing and threatening Pitts with billy clubs, and had not had ill intent towards Pitts, then they would not have gotten hurt. Pitts contends that Louise Sumrall gave a statement at the hospital that Richardson went to the gun cabinet and got a gun before he left to follow Pitts. However, she could not be located for trial and the trial court refused to allow an unsworn statement of hers to be admitted at trial. R. 282-284.
Pitts's attorney submitted a statement to the State regarding his representation of Pitts, dated June 14, 2004. See Exhibit C. He contends that he did not call Mr. Malone because he did not believe it would have been helpful. He does not recall much about Ms. Sumrall, other than his notes indicate he could not find her.
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. Cabana, 794 F.2d 177, 183 (5th Cir. 1986); Murray v. Maggio, 736 F.2d 279, 282 (5th Cir. 1984); United States v. Cockrell, 720 F.2d 1423, 1427 (5th Cir. 1983) (". . . this Court has viewed with great caution claims of ineffective assistance of counsel where the only evidence of a missing witness' testimony is from the defendant.") It is doubtful that the result of the trial would have been different if Malone and Sumrall had been interviewed and brought to trial to testify. Further, there is no proof that Pitts's counsel did not investigate these potential witnesses' knowledge regarding the facts in this case. Counsel obviously did talk to Mr. Malone, as his wife was called as a witness; his trial strategy simply did not include Mr. Malone. Although counsel does not recall ever locating Ms. Sumrall, there is no proof as to what her testimony would have been or that it would have aided Pitts's defense. Pitts simply makes conclusory statements of what he believes these witnesses would have said. This is insufficient to show a deficiency. The failure to present the testimony of these witnesses is certainly not so prejudicial as to undermine the validity of the verdict.
Generally, Pitts complains that his attorney failed to investigate the facts underlying the circumstances which led to his conviction. However, the allegations are not supported by specific facts which would show that his attorney failed to discover any relevant information which would aid in Pitts's defense. In order to establish a deficiency, such a claim must give very specific facts that should have been discovered but were not. Pitts does not do so. "A defendant who alleges failure to investigate must allege with specificity what the investigation would have revealed and how it would have altered the outcome of the trial." United States v. Green, 882 F.2d 999, 1003 (5th Cir. 1989). "In any ineffectiveness case, a particular decision not to investigate must be directly assessed for reasonableness in all the circumstances, applying a heavy measure of deference to counsel's judgments." Strickland, 466 U.S. at 691. Mr. Roussell's failure to locate Ms. Sumrall or to call Mr. Malone to testify are judgment calls and do not constitute deficiencies.
Pitts contends that his counsel should have challenged prospective jurors and should have challenged the admission of his statement. There is no showing that the jurors Pitts complained of showed any impartiality in the deliberation of the verdict. Mere conclusory allegations regarding these jurors due only to their relationships are far from sufficient to show that counsel was deficient. Juror James Crow's wife was a 911 dispatcher for the sheriff's department. Juror Karen Ward was a friend of the victim's family. All the jurors swore that they could consider the evidence and render a verdict based only on the evidence. Pitts has not shown that they did not do so or that the result would have been different had they been removed as jurors.
It is obvious that counsel wanted Pitts's statement to be entered into evidence, as Mr. Roussell stipulated with the State as to its admissibility. R. 344-345. It allowed Pitts to tell his version of the incident without being subjected to cross examination. The statement correlated with Pitts's accident defense argued at trial, and it would not appear to have prejudiced Pitts. Counsel's actions in this regard are considered trial strategy and do not constitute a deficiency. TheStrickland case requires that a strong presumption must be given to counsel's actions which are considered trial strategy. 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). Certainly the decision to stipulate as to the admission of Pitts's statement, which was consistent with his theory of defense, was strategy and not a deficiency.
Pitts concludes that his counsel failed to properly advise him on his right to testify in his own defense. The record belies this assertion, as the court reviewed this right with Pitts, questioned him about his understanding of the right, and confirmed that he had discussed his decision with his counsel. R. 339-342. Pitts's unsupported assertions otherwise do not belie this record. Further, Pitts cannot show that his testimony would have altered the verdict.
Finally, Pitts charges that his attorney should have objected to jury instruction S-3 and to the prosecutor's closing arguments. As discussed hereinabove, the state court found that those alleged "errors" were not actual errors, and we found that no constitutional violation was established due to the instructions and/or due to the prosecutor's argument. Accordingly, counsel's failure to object cannot be found to be deficient. The "failure to raise meritless objections is not ineffective lawyering; it is the very opposite." Clark v. Collins, 19 F.3d 959, 966 (5th Cir. 1994). The failure to assert a meritless objection cannot be grounds for a finding of deficient performance. Emery v. Johnson, 139 F.3d 191, 198 (5th Cir. 1997) citing Clark, 19 F.3d at 966.
In the opinion of the undersigned, none of the "errors" in counsel's performance alleged by Pitts constitute "deficiencies" in performance as required under Strickland. Hence, Mr. Roussell cannot be found to have rendered constitutionally ineffective counsel. As both the United States Supreme Court and the Fifth Circuit Court of Appeals have recognized, a criminal defendant is 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 (5th Cir. 1988). A review of the record confirms the undersigned's conclusion that Pitts did receive a fair trial, represented by able and effective counsel. In fact, Pitts was acquitted on the charges of aggravated assault against Shauger and on the murder of Richardson. Obviously, Pitts's attorney was effective.
V. Conclusion
We have thoroughly reviewed both the trial record and the appellate record regarding Pitts's conviction for manslaughter. His trial and appellate counsel ably performed, bringing the pertinent legal issues before the courts in an effective manner. His trial was conducted in a fair manner, and he was allowed to call any witnesses to all motion hearings and to the trial. We find no errors which have permeated these proceedings so as to render his trial unfair in a constitutional sense. No habeas relief may be granted under the circumstances of his case.
It is therefore the recommendation of the undersigned United States Magistrate Judge that the petition of Donald Ray Pitts be dismissed with prejudice and that a Final Judgment in favor of the Respondents be entered.
The parties are notified that failure to file written objections to the proposed findings, conclusions, and recommendation contained within this report and recommendation within ten 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).