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Full Opinion
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF MISSISSIPPI
OXFORD DIVISION
JERRY BEALE, JR. PETITIONER
v. No. 3:24CV303-MPM-DAS
MARCUS MCCLURE, ET AL. RESPONDENTS
MEMORANDUM OPINION
This matter comes before the court on the pro se petition of Jerry Beale, Jr. for a writ of
habeas corpus under 28 U.S.C. § 2254. The State has responded to the petition; the petitioner has not
replied, and the deadline to do so has expired.1 The matter is ripe for resolution. For the reasons set
forth below, the instant petition for writ of habeas corpus will be denied.
Habeas Corpus Relief Under 28 U.S.C. § 2254
The writ of habeas corpus, a challenge to the legal authority under which a person may
be detained, is ancient. Duker, The English Origins of the Writ of Habeas Corpus: A Peculiar
Path to Fame, 53 N.Y.U.L.Rev. 983 (1978); Glass, Historical Aspects of Habeas Corpus, 9 St.
John's L.Rev. 55 (1934). It is “perhaps the most important writ known to the constitutional law
of England,” Secretary of State for Home Affairs v. O’Brien, A.C. 603, 609 (1923), and it is
equally significant in the United States. Article I, § 9, of the Constitution ensures that the right
of the writ of habeas corpus shall not be suspended, except when, in the case of rebellion or
1 The petitioner moved [16] July 22, 2025, to extend the deadline to file a reply, alleging
that he was gathering documents (sworn statements) to support his petition – but could not
secure them before the deadline to reply. However, he did not identify the people giving the
statements – or inform the court of the information the statements would provide. In addition,
he has yet to present the statements to the court, and nearly four months have passed since he
filed the instant motion. As such, the court will deny the instant motion [16].
invasion, public safety may require it. Habeas Corpus, 20 Fed. Prac. & Proc. Deskbook § 56.
Its use by the federal courts was authorized in Section14 of the Judiciary Act of 1789.
Habeas corpus principles developed over time in both English and American common
law have since been codified:
The statutory provisions on habeas corpus appear as sections 2241 to 2255 of the
1948 Judicial Code. The recodification of that year set out important procedural
limitations and additional procedural changes were added in 1966. The scope of the
writ, insofar as the statutory language is concerned, remained essentially the same,
however, until 1996, when Congress enacted the Antiterrorism and Effective Death
Penalty Act, placing severe restrictions on the issuance of the writ for state prisoners
and setting out special, new habeas corpus procedures for capital cases. The changes
made by the 1996 legislation are the end product of decades of debate about habeas
corpus.
Id. Under 28 U.S.C. § 2254, a federal court may issue the writ when a person is held in violation of
the federal Constitution or laws, permitting a federal court to order the discharge of any person held
by a state in violation of the supreme law of the land. Frank v. Mangum, 237 U.S. 309, 311, 35 S. Ct.
582, 588, 59 L. Ed. 969 (1915).
Facts and Procedural Posture2
Convictions and Sentences
Beale was indicted by a DeSoto County grand jury for three counts of attempted murder
of police officers Colin Hall, Mary Fite, and Branson Vuncannon. Doc. 14-1 at 12 (SCR, Vol. 1
at 11). Beale’s first trial resulted in a hung jury, but on retrial, a jury convicted him of the
attempted murder of Officers Hall and Fite and found Beale not guilty of the attempted murder
of Officer Vuncannon. Doc. 14-1 at 117–18 (SCR, Vol. 1 at 116–17; Doc. 14-2 at 64, 74–75
(SCR, Vol. 2 at 213, 223–24).
2 The court has drawn the facts and procedural posture from the State’s response to the
instant petition for writ of habeas corpus, as they are both well-documented and uncontested.
Both the Mississippi Court of Appeals and the Mississippi Supreme Court set forth the
facts from Beale’s trial for attempted murder of police officers:3
¶2. In the late hours of the night on June 8, 2018, Piccola Thomas was awoken in
her apartment by a fight that had broken out between her sister and her sister’s
boyfriend, Jerry Beale. Piccola told the couple to leave her apartment. Piccola’s
sister left, but Beale refused to leave. Piccola threatened to call the police, but
Beale still would not leave her apartment. Instead, Beale responded and told her
to go ahead and call the police because he was going to “light this b*tch up.”
¶3. Piccola eventually called 911. She told the 911 operator that Beale was
armed, was making threats, and had been drinking, and she wanted him to leave
the apartment. The 911 operator subsequently sent this information to a police
dispatcher, who proceeded to put a call out to the police. The first police officer
to arrive on the scene was Colin Hall, and Officers Mary Fite and Brantson
Vuncannon arrived shortly afterward.
¶4. Officer Hall testified that based on what he learned from police dispatch, he
was called to the scene because a male inside the apartment was “belligerent” and
“making threats.” Piccola told Officer Hall that Beale had been drinking all
night and appeared to be “heavily intoxicated,” was armed, and had said that if the
police were called that he was going to kill them.
¶5. Once inside the apartment, Officer Hall testified that they heard Beale
repeatedly screaming, “I don’t talk to no f’ing police.” Officer Hall stated that
two or three times they announced their presence inside the apartment, making it
known that the police were coming inside. The three officers started going up
the stairs and saw Beale at the top. Beale was shirtless, drinking a beer, and
pacing back and forth with a pistol jammed in his waistband. After the officers
saw the pistol, they drew their service weapons. According to Officer Hall, Beale
was completely ignoring the officers and their commands.
¶6. Officer Hall testified that he began to give Beale commands to put his hands
on his head; Beale refused. The three officers holstered their guns and readied
their tasers, still attempting to get Beale to comply. In an attempt to regain
control of the situation, Officer Hall fired his taser at Beale. Officer Fite also
aimed and fired her taser at Beale. Officer Hall’s taser hit Beale but did not
incapacitate him. In response, Beale immediately drew his gun and fired it at the
officers.
3 On certiorari review, the Mississippi Supreme Court noted that the court had taken
“[t]he facts and procedural history … verbatim from the Court of Appeals opinion.” Beale v.
State, 367 So.3d 159, 160 n.1 (Miss. 2023).
¶7. Officer Hall recounted how he saw the gun pointed directly at him and only
remembered hearing the “bang, bang, bang” as Beale fired. Officer Fite would
later testify she saw Beale’s pistol pointed at her face as well.
¶8. When Beale shot at the officers, all three of them immediately retreated.
While Officer Hall took cover in a bedroom, he called police dispatch and
reported the shooting and requested backup. He also requested an ambulance
because he had seen blood on the floor and was concerned that he had been shot.
Meanwhile, Officers Fite and Vuncannon retreated downstairs. Beale shut
himself inside the bathroom.
¶9. When backup arrived, authorities continued to give Beale commands to come
out of the bathroom and surrender. Beale ignored them at first but eventually
opened the bathroom door and threw his loaded pistol down the stairs. Still
belligerent, Beale refused to follow with orders to get on his knees and put his
hands on his head. In the end, after being tased a second time, eight officers
were eventually able to get Beale into custody.
¶10. Beale was indicted for three counts of attempted murder of three police
officers. During trial, a crime scene technician explained he recovered three .40-
caliber shell casings in the upstairs apartment area. An officer also recovered
Beale’s .40-caliber gun from where he had thrown it down the stairs. Bryan
Rosenberg described for the jury the bullet holes that could be seen in
photographs that depicted Beale had fired shots at the officers. All three officers
testified that they believed Beale was shooting at them in order to kill them.
Beale v. State, 367 So. 3d 159, 162 (Miss.), cert. denied, 144 S. Ct. 245 (2023).
A jury found Beale guilty of two counts of attempted murder in Counts 1 and 2, and not
guilty of one count of attempted murder in Count 3. Exhibit A4; Doc. 14-2 at 64, 74–75 (SCR,
Vol. 2 at 213, 223–24); Doc. 14-5 at 146 (SCR, Vol. 5 at 445). The DeSoto County Circuit
Court sentenced Beale on his two attempted murder convictions to serve concurrent thirty-five-
year sentences in the custody of the Mississippi Department of Corrections, followed by five
years of post-release supervision. Exhibit B; Doc. 14-2 at 99–102 (SCR, Vol. 2 at 248–51);
Doc. 14-6 at 38 (SCR, Vol. 6 at 487).
4 The exhibits referenced in this memorandum opinion may be found attached to the
State’s response to the instant petition.
Direct Appeal
Beale, through counsel, appealed his convictions and sentences. In his appellant’s brief
before the Mississippi Court of Appeals, he raised three claims:
1. The indictment is defective for failure to allege what act Beale committed in
furtherance of his attempt to kill the officers.
2. The jury instructions constructively amended the indictment, requiring the
jury find that Beale shot at the officers in his attempt to kill, an element not
contained in the indictment.
3. The trial court erred when it allowed the State to introduce hearsay testimony
through officer Colin Hall, which went to prove Beale’s intent to kill the
officers.
Doc. 14-8 at 1–20 (SCR, Briefs, Brief of Appellant). The Mississippi Court of Appeals rejected
Beale’s arguments and affirmed his convictions and sentences. Exhibit C (Beale v. State, 361
So.3d 673 (Miss. Ct. App. 2022)).
In his motion for rehearing, Beale renewed only two of his original three claims: his
challenges to his alleged defective indictment and the constructive amendment of the indictment
via jury instructions. Doc. 14-8 at 80–86 (SCR, Briefs, Motion for Rehearing). The
Mississippi Court of Appeals denied rehearing. Doc. 14-9 at 11 (SCR, Decision Letter dated
August 9, 2022).
In his petition for writ of certiorari to the Mississippi Supreme Court, Beale again only
renewed two of his original three claims: defective indictment and constructive amendment of
the indictment. Doc. 14-10 at 39–45 (SCR, Certiorari Folder, Petition for Writ of Certiorari).
The Mississippi Supreme Court granted certiorari review “because one of the issues raised by
Beale had never been addressed by th[e] [c]ourt” and affirmed Beale’s convictions and
sentences. Exhibit D (Beale v. State, 367 So. 3d 159 (Miss. 2023)); Doc. 14-10 at 3–18, 36
(SCR, Certiorari Folder).
The Mississippi Supreme Court confirmed that Beale raised three issues before the court
of appeals but only two issues in his certiorari petition. Beale, 367 So. 3d at 161–62. The
Mississippi Supreme Court first determined that “Beale’s indictment for attempted murder did
not require the description of an overt act and was sufficient.” Id. at 162–63. The Mississippi
Supreme Court also “agree[d]” with the court of appeals’ determination that Beale’s jury
instruction argument was procedurally barred and, alternatively, was meritless. Id. at 163–64.
Finally, Beale filed a pro se certiorari petition in the Supreme Court and raised all three
of his original direct appeal claims. Doc. 14-11 (Supreme Court Docket and Filings). The
Supreme Court denied Beale’s certiorari petition on October 2, 2023. Exhibit E (Beale v.
Mississippi, 144 S. Ct. 245 (2023)); Doc. 14-11 (Supreme Court Docket and Filings).
First Federal Habeas Corpus Proceeding
Beale filed his first, unsigned federal petition for writ of habeas corpus in the Southern
District of Mississippi on December 4, 2023. Beale v. Huffman, No. 1:23-CV-349-HSO-RPM,
Doc. 1 (S.D. Miss. Dec. 4, 2023). The court immediately ordered Beale to pay the requisite
filing fee or file a proper motion to proceed in forma pauperis. Beale v. Huffman, No. 1:23-CV-
349-HSO-RPM, Doc. 3 (S.D. Miss. Dec. 5, 2023). After Beale failed to comply, the court
issued three show cause orders in January 2024, February 2024, and March 2024; and Beale
finally complied in April 2024. Beale v. Huffman, No. 1:23-CV-349-HSO-RPM, Docs. 4, 6, 7,
8, 9 (S.D. Miss. Apr. 17, 2024). The court then transferred Beale’s petition to this court. Beale
v. Huffman, No. 1:23-CV-349-HSO-RPM, Doc. 10 (S.D. Miss. Apr. 22, 2024).
This court immediately ordered Beale to file an amended petition verified with his
signature. Beale v. Huffman, No. 3:24-CV-109-SA-JMV, Doc. 13 (N.D. Miss. Apr. 23, 2024).
When Beale failed to comply, this court entered an Order to Show Cause. Beale v. Huffman,
No. 3:24-CV-109-SA-JMV, Doc. 13 (N.D. Miss. May 15, 2024). Beale then filed his amended
petition, raising the following grounds for relief:
Ground One: The indictment in this case is defective for failing to allege
all the essential elements of attempted murder.
Specifically, the indictment does not include the act which
would constitute murder if completed.
Ground Two: The jury instructions constructively amended the
indictment because the indictment is missing the element
set out in the instructions.
Ground Three: The trial court erred when it allowed the State to introduce
hearsay testimony through Officer Colin Hall.
Ground Four: Ineffective assistance of counsel for failing to argue that no
samples were taken of the “blood on the floor.”
Beale v. Huffman, No. 3:24-CV-109-SA-JMV, Doc. 16 (N.D. Miss. May 15, 2024). Beale
conceded that he had not exhausted all his grounds for relief. Beale v. Huffman, No. 3:24-CV-
109-SA-JMV, Doc. 16 (N.D. Miss. May 15, 2024).
On June 25, 2024, the State moved to dismissed Beale’s “mixed” petition as unexhausted.
Beale v. Huffman, No. 3:24-CV-109-SA-JMV, Doc. 23 (N.D. Miss. June 25, 2024). The State
argued that Beale exhausted grounds one and two in the Mississippi Supreme Court but failed to
exhaust grounds three and four. Beale v. Huffman, No. 3:24-CV-109-SA-JMV, Doc. 23 (N.D.
Miss. June 25, 2024). The State further opposed a stay of Beale’s federal habeas corpus
proceedings, explaining that Beale’s one-year federal habeas corpus limitations period had not
yet expired, and that he could, with diligence, exhaust his claims in state court, then return to
federal court with a timely federal petition for writ of habeas corpus containing fully exhausted
claims. Beale v. Huffman, No. 3:24-CV-109-SA-JMV, Doc. 23 (N.D. Miss. June 25, 2024)
(citing Duncan v. Walker, 533 U.S. 167 (2001); 28 U.S.C. § 2244(d)(2) (the one-year federal
habeas corpus statute of limitations is tolled during the pendency of a “properly filed”
application for state post-conviction review)).
Beale then filed a motion to stay his federal habeas corpus proceedings on July 9, 2024.
Beale v. Huffman, No. 3:24-CV-109-SA-JMV, Doc. 24 (N.D. Miss. July 9, 2024). The State in
that case again opposed a stay and reiterated that Beale’s one-year federal habeas corpus
limitations period had not yet expired, that he had not yet sought state post-conviction relief, and
that he had ample time, with diligence, to do so and return to this court having fully exhausted
his claims. Beale v. Huffman, No. 3:24-CV-109-SA-JMV, Doc. 25 (N.D. Miss. July 15, 2024).
On July 22, 2024, the court entered a Memorandum Opinion and Order dismissing
Beale’s “mixed” petition without prejudice for failure to exhaust state court remedies. Exhibit
F; Beale v. Huffman, No. 3:24-CV-109-SA-JMV, Doc. 27 (N.D. Miss. July 22, 2024) ( “the
Mississippi Supreme Court, the state’s highest court, ha[d] not yet had an opportunity to address
Grounds III (whether the trial court erred when it allowed the state to introduce hearsay
testimony through Officer Hall) and IV (ineffective assistance of counsel)”). The court also
denied Beale’s request for a stay of his federal habeas corpus proceedings because he
“advance[d] no substantive argument in support of his request” and thus failed to show “good
cause” or merit to his claims, as required for a stay. Beale v. Huffman, No. 3:24-CV-109-SA-
JMV, Doc. 27 at 5 (N.D. Miss. July 22, 2024).
The court determined that Beale’s federal petition was, at that time, “due on or before
October 2, 2024[,]” but that “the filing of a state post-conviction application[] will toll the
federal statute of limitations as long as the pleading is pending in state court.” Beale v.
Huffman, No. 3:24-CV-109-SA-JMV, Doc. 27 at 5 (N.D. Miss. July 22, 2024). “As such,” the
court concluded that “Beale, acting with diligence, ha[d] sufficient time to file a state post-
conviction application and, if necessary, return to federal court and file a timely habeas petition.”
Beale v. Huffman, No. 3:24-CV-109-SA-JMV, Doc. 27 at 6 (N.D. Miss. July 22, 2024). “To be
clear,” the court reiterated that “so long as Beale properly files a state post-conviction application
on or before October 2, 2024, that filing will toll the federal limitations deadline.” Beale v.
Huffman, No. 3:24-CV-109-SA-JMV, Doc. 27 at 6 (N.D. Miss. July 22, 2024). The court
concluded that “a stay and abeyance is unnecessary to protect Beale’s ability to timely file a
federal habeas petition after his State remedies are exhausted.” Beale v. Huffman, No. 3:24-
CV-109-SA-JMV, Doc. 27 at 6 (N.D. Miss. July 22, 2024).
State Post-Conviction Proceedings
On August 6, 2024, Beale submitted a state post-conviction relief (PCR) motion,
asserting the following claims for relief:
1. The accusatory instrument in []his case is defective for failure to allege what act Beale
committed in furtherance of his attempt to kill the officers.
2. The jury instructions constructively amended the indictment [because they]
included that Beale “shot at” the officers in his attempt to kill them. A[n]
element is not contained in the indictment.
3. The trial court erred when it allowed the State to introduce hearsay testimony
through Officer Colin Hall which went to prove Beale’s intent to kill the
officers.
4. Ineffective assistance of counsel [because] there is DNA evidence made aware
to Jessica Massy Carr, that to the day is untested.
Doc. 14-12 (SCR, Cause No. 2024-M-912).
On August 20, 2024, the Mississippi Supreme Court “denied Beale’s PCR motion.
Exhibit G. The court determined that claims “(1)–(3) [we]re barred by res judicata” and that
“(4) … [wa]s waive[d], lack[ed] an arguable basis, and/or fail[ed] to make the requisite showing
of deficient performance and prejudice provided in Strickland v. Washington, 466 U.S. 668 []
(1984).” Exhibit G.
Current Federal Habeas Corpus Proceeding
Beale filed his current federal petition for writ of habeas corpus in this court on September
24, 2024. Doc. 1. Beale repeats the claims from his first federal habeas corpus petition and his
state PCR motion:
Ground One: The indictment in this case is defective for failing to allege
all the essential elements of attempted murder.
Specifically, the indictment does not include the act which
would constitute murder if completed.
Ground Two: The jury instructions constructively amended the
indictment because the indictment is missing the element
set out in the instructions.
Ground Three: The trial court erred when it allowed the State to introduce
hearsay testimony through Officer Colin Hall.
Ground Four: Ineffective assistance of counsel for failing to argue that no
samples were taken of the “blood on the floor.”
Doc. 1. As discussed below, Beale is not entitled to federal habeas corpus relief on his claims.
Beale’s Challenge to Jury Instructions 8 and 9
in Ground Two Is Procedurally Barred
Federal courts have no jurisdiction to review a habeas corpus claim “if the last state court to
consider that claim expressly relied on a state ground for denial of relief that is both independent of the
merits of the federal claim and an adequate basis for the court's decision.” Roberts v. Thaler, 681 F.3d
597, 604 (5th Cir. 2012). Thus, a federal court may not consider a habeas corpus claim when, “ (1) a
state court [has] declined to address [those] claims because the prisoner [has] failed to meet a state
procedural requirement, and (2) the state judgment rests on independent and adequate state procedural
grounds.” Maples v. Thomas, 565 U.S. 266, 280 132 S.Ct. 912, 922, 181 L.Ed.2d 807 (2012)
(alterations in original) (internal quotation marks omitted). This doctrine is known as procedural bar.
A state procedural rule is “independent” when the state law ground for decision is not
“interwoven with the federal law.” Michigan v. Long, 463 U.S. 1032, 1040, 103 S. Ct. 3469, 77
L. Ed. 2d 1201 (1983). A state law ground is interwoven with federal law if “the state has made
application of the procedural bar depend on an antecedent ruling on federal law [such as] the
determination of whether federal constitutional error has been committed.” Ake v. Oklahoma,
470 U.S. 68, 75, 105 S. Ct. 1087, 84 L. Ed. 2d 53 (1985); see also State court decision must not
be interwoven with federal law, Federal Habeas Manual § 9B:24.
To determine the adequacy of the state procedural bar, this court must examine whether the
state’s highest court “has strictly or regularly applied it.” Stokes v. Anderson, 123 F.3d 858, 860 (5th
Cir. 1997) (citing Lott v. Hargett, 80 F.3d 161, 165 (5th Cir. 1996)). The petitioner, however, “bears
the burden of showing that the state did not strictly or regularly follow a procedural bar around the
time of his appeal” – and “must demonstrate that the state has failed to apply the procedural bar rule to
claims identical or similar to those raised by the petitioner himself.” Id.
Cause and Prejudice – and Fundamental Miscarriage of Justice –
As Ways to Overcome Procedural Bar
A petitioner may overcome the procedural bar by showing cause for it – and actual prejudice
from its application. To show cause, a petitioner must prove that an external impediment (one that
could not be attributed to him) existed to prevent him from raising and discussing the claims as
grounds for relief in state court. See United States v. Flores, 981 F.2d 231 (5th Cir. 1993). To
establish prejudice, a petitioner must show that, but for the alleged error, the outcome of the
proceeding would have been different. Pickney v. Cain, 337 F.3d 542 (5th Cir. 2003). Even if a
petitioner fails to establish cause for his failure and prejudice from application of the bar, he may still
overcome the bar by showing that its application would result in a fundamental miscarriage of justice.
To show that such a miscarriage of justice would occur, a petitioner must prove that, “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)). Further, he must support his
allegations with new, reliable evidence – that was not presented at trial – and must show that, “more
likely than not that no reasonable juror would have convicted him in light of the new evidence.”
Fairman, 188 F.3d at 644 (citations omitted).
Ground Two Is Procedural Barred
Beale raised his jury instruction challenge in Ground Two through counsel on direct
appeal. Doc. 14-8 (SCR, Briefs). The Mississippi Court of Appeals held that “Beale failed to
object to instructions 8 and 9 at trial.” Beale, 361 So. 3d at 680. The state court’s precedent
makes clear “‘that when a defendant fails to object to a jury instruction at trial, the defendant is
procedurally barred from challenging the instruction on appeal.’” Id. at 680–81 (quoting
McGilvary v. State, 290 So. 3d 1273, 1280 (¶24) (Miss. Ct. App. 2020)). As such, the
Mississippi Court of Appeals held that “Beale’s issue is procedurally barred.” Beale, 361 So. 3d
at 681.
Beale then raised his jury instructions challenge to the Mississippi Supreme Court on
certiorari review. Doc. 14-10 at 39–45 (SCR, Certiorari Folder, Petition for Writ of Certiorari).
The Mississippi Supreme Court first noted that “[t]he Court of Appeals found that because Beale
had failed to object to instructions 8 and 9 at trial, he was procedurally barred from challenging
the instructions on appeal.” Beale, 367 So. 3d at 163 (citing Beale, 361 So. 3d at 680–81). The
Mississippi Supreme Court likewise observed that “[t]he Court of Appeals also determined that
the instructions did not constitute a constructive amendment.” Id. The Mississippi Supreme
Court “agree[d] with the Court of Appeals,” holding that “Beale failed to object to the jury
instruction[,]” and “an offended party’s failure to object to jury instructions at trial procedurally
bars that issue on appeal.” Id. (citations omitted). In addition, when Beale again raised his jury
instructions challenge on state post-conviction review, the Mississippi Supreme Court held that it
was “barred by res judicata[.]” Exhibit G.
Ultimately, the Mississippi Supreme Court held that Beale failed to raise his objections to
jury instructions 8 and 9 at trial; as such, his claim in Ground Two is procedurally barred from
federal habeas corpus review. Id.
Contemporaneous Objection or Waiver Rule
On post-conviction collateral review, the Mississippi Supreme Court found that Beale’s
allegations in Ground Two were procedurally barred under Mississippi’s contemporaneous objection
or waiver rule.
Independent State Procedural Bar
The Fifth Circuit has long held that the contemporaneous objection rule is an independent
state procedural bar, as it is not “interwoven with the federal law.” See Smith v. Black, 970 F.2d
1383, 1386 (5th Cir. 1992) (contemporaneous objection rule is an independent state procedural
bar); Michigan v. Long, 463 U.S. 1032, 1040, 103 S. Ct. 3469, 77 L. Ed. 2d 1201 (1983) (state
court decision must not be interwoven with federal law). The rule is not interwoven with
federal law because the state has not made applying the procedural bar “depend[ent] on an
antecedent ruling on federal law [such as] the determination of whether federal constitutional
error has been committed.” Ake v. Oklahoma, 470 U.S. 68, 75, 105 S. Ct. 1087, 84 L. Ed. 2d 53
(1985); see also State court decision must not be interwoven with federal law, Federal Habeas
Manual § 9B:24.
Adequate State Procedural Bar
The adequacy of the procedural bar applied to these claims in state court depends on whether
the State of Mississippi has strictly or regularly applied it. Lott v. Hargett, 80 F.3d 161, 165 (5th Cir.
1996). Beale has not shown “inconsistent and irregular” application of the bar – and is thus
precluded from presenting his state claims in federal court under an independent and adequate state
procedural rule. Id. at 861. Further, the Fifth Circuit has previously found that Mississippi’s
contemporaneous objection rule is an adequate state bar, as it has been consistently and regularly
applied. Wiley v. Puckett, 969 F.2d 86, 103 (5th Cir. 1992), as amended (Aug. 5, 1992); Williams v.
Puckett, 283 F.3d 272, 281 (5th Cir. 2002); see also Johnson v. Puckett, 176 F.3d 809, 824 (5th Cir.
1999).
Cause and Prejudice Test
The petitioner has not shown that any external impediment prevented him from bringing these
claims in state court; in addition, he has not shown that actual prejudice would result from applying
the bar. Further, as the has not exhausted any claim that counsel was ineffective, he may not rely
upon ineffective assistance of counsel to establish cause for his failure to raise these issues in a timely
fashion. In failing to establish both cause for his default and prejudice from applying the procedural
bar, he has not overcome it, and the court cannot review Ground Two of the instant petition.
Fundamental Miscarriage of Justice Test
Neither will this court’s decision to forego considering the petitioner’s claims in Ground Two
result in a “fundamental miscarriage of justice,” as he has not shown, by clear and convincing
evidence not available at trial, that “he did not commit the crime of conviction.”5 Fairman v.
Anderson, 188 F.3d 635, 644 (5th Cir. 1999) (citing Ward v. Cain, 53 F.3d 106, 108 (5th Cir. 1995)).
5 The court does not construe Beale’s claim that his indictment was defective
(insufficient to charge the crime of attempted murder) as a claim of actual innocence. Indeed,
there is no legitimate dispute that he fired a handgun at the officers. However, even if the court
were to construe the claim in that way, Beale has not provided new, clear and convincing
evidence, unavailable at trial, that he did not commit the crime of his conviction. See Fairman,
supra.
Indeed, he has not presented the court with any such evidence. For these reasons, his claims in
Ground Two of the instant petition must be dismissed as procedurally barred.
Ground Two Is, Alternatively, Meritless
Separate and apart from procedural bar, the state court denied as meritless Beale’s
challenge to jury instructions found in Ground Two of the instant petition. See Beale, 367 So.
3d at 164 ( “that the jury instructions did not materially alter the face of the indictment in a way
that would prejudice Beale’s case,” and thus, the issue is meritless). In addition, when a claim is
“barred by independent and adequate state law grounds,” “the state court’s review of the merits
does not vitiate the procedural bar,” including a plain error review. Hughes v. Dretke, 412 F.3d
582, 592–93 (5th Cir. 2005) (alternate dismissal on the merits by the state court did not preclude
imposition of bar on federal habeas corpus review for petitioner’s failure to contemporaneously
object on federal constitutional grounds in state court); Thacker v. Dretke, 396 F.3d 607, 614 (5th
Cir. 2005) (state court’s alternative holding that constitutional claim lacked merit did not
preclude imposing a procedural bar for the petitioner’s failure to contemporaneously object to
preserve claim for review).
Grounds One, Three, and Four: Reviewed on the Merits in State Court
The Mississippi Supreme Court has already considered Grounds One, Three, and Four on the
merits and decided those issues against the petitioner; hence, these claims are barred from habeas
corpus review by the Antiterrorism and Effective Death Penalty Act, 28 U.S.C. § 2254(d), unless they
meet one of its two exceptions:
(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.
Id. (emphasis added). The first exception, subsection (d)(1), applies to questions of law. Morris v.
Cain, 186 F.3d 581 (5th Cir. 2000). The second exception, subsection (d)(2), applies to questions of
fact. Lockhart v. Johnson, 104 F.3d 54, 57 (5th Cir. 1997). Since the petitioner’s claims challenge
both the application of law and the finding of fact, this court must consider the exceptions in both
subsections.
Under subsection (d)(1), a petitioner’s claim merits habeas review if its prior adjudication
“resulted in a decision that was contrary to, or involved an unreasonable application of, clearly
established Federal law.” Id. (emphasis added). A state court’s decision is contrary to federal law if
it arrives at a conclusion opposite to that reached by the United States Supreme Court on a question of
law, or if it decides a case differently from the Supreme Court on a set of “materially indistinguishable
facts.” Williams v. Taylor, 529 U.S. 362, 120 S.Ct. 1495, 1523 (2000). A state court’s decision
involves an unreasonable application of federal law if it identifies the correct governing principle but
unreasonably (not just incorrectly) applies that principle to facts of the prisoner’s case; this application
of law to facts must be objectively unreasonable. Id. at 1521. As discussed below, the petitioner has
not shown that the Mississippi Supreme Court unreasonably applied the law to the facts, or that the
court’s decision contradicted federal law. Accordingly, the exception in subsection (d)(1) does not
apply to Grounds One, Three, and Four of the petitioner’s claim.
Nevertheless, under § 2254(d)(2) these grounds may still merit review if those facts to which
the supreme court applied the law were determined unreasonably in light of the evidence presented.
Because the state supreme court is presumed to have determined the facts reasonably, it is the
petitioner’s burden to prove otherwise, and he must do so with clear and convincing evidence. Miller
v. Johnson, 200 F.3d 274, 281 (5th Cir. 2000); 28 U.S.C. § 2254(e)(1). As discussed below, the
petitioner has failed to meet this burden; as such, he cannot use subsection (d)(2) to move these claims
beyond § 2254(d), which bars from habeas corpus review issues already decided on the merits.
Ground One: Sufficiency of the Indictment
In Ground One, Beale argues that his Indictment is defective because it does not describe a
specific “overt act” designed to kill the officers. Beale argues that a description of such an overt act is
a necessary element of the crime of attempt, and the absence of that description is fatal to the
Indictment. The Mississippi Supreme Court rejected Beale’s indictment challenge as meritless.
Exhibit D. When Beale renewed the challenge to his indictment on state post-conviction
review, the Mississippi Supreme Court denied the claim as “barred by res judicata.” Exhibit G;
Doc. 14-12 (SCR, 2024-M-912).
Beale’s indictment reads, in relevant part:
COUNT 1
That JERRY LEE BEALE, Late of the County and State aforesaid, on or about
the 7th day of June, in the year of our Lord, 2018, in the County and State
aforesaid, and within the jurisdiction of this Court, did wilfully, unlawfully and
feloniously, attempt to kill Officer Colin Hall, a human being; JERRY LEE
BEALE acted with the deliberate design to effect the death of Officer Colin Hall,
but failed to successfully complete the act, in direct violation of Section 97-3-
19(1)(a), Mississippi Code 1972 Annotated, as amended, contrary to the form of
the statute in such cases made and provided, and against the peace and dignity of
the State of Mississippi.
(Life if fixed by a jury, nlt 20 years by court)
Doc. 14-1, p. 12.6
To the extent that Beale challenges the validity of his indictment under state law, the state
supreme court is the final arbiter of state law issues, and a federal court on habeas corpus review
6 The other two counts are identical but for the names of the intended victims.
may not consider them. McKay v. Collins, 12 F.3d 66, 69 (5th Cir. 1994). Hence, Beale’s
renewed claim under state law is simply not cognizable on habeas corpus review.
The Mississippi Supreme Court considered Beale’s challenge to the sufficiency of his
indictment – and rejected it as meritless. Exhibit D. That ruling precludes federal habeas
corpus review on this issue. In the Fifth Circuit, “the sufficiency of a state indictment is not a
matter for federal habeas corpus relief unless it can be shown that the indictment is so defective
that the convicting court had no jurisdiction.” Evans v. Cain, 577 F.3d 620, 624 (5th Cir. 2009)
(emphasis added)(citation omitted).
Further, the issue “whether a state indictment is sufficient to confer a court with
jurisdiction” is a matter of state law. Williams v. Collins, 16 F.3d 626, 637 (5th Cir. 1994). In
this case, the highest court of Mississippi has held (explicitly or implicitly) that the indictment
was sufficient under state law; as such, this court is precluded from conducting federal habeas
corpus review. Coleman v. Taylor, 49 F.3d 728 (5th Cir. 1995). Indeed, even if federal habeas
corpus review were not precluded, the court must give “deference to the state court’s
interpretations of its own law” – and, in this case, its implicit determination that the indictment
was sufficient under Mississippi law. McKay, 12 F.3d at 69; accord Pace v. Arrington, No.
3:20CV287-DPJ-LGI, 2023 WL 6156869, at *6 (S.D. Miss. July 31, 2023), report and
recommendation adopted, 2023 WL 6150243 (S.D. Miss. Sept. 20, 2023).
On direct appeal, Beale challenged whether his indictment correctly stated the elements
of attempted murder – because it did not include the (allegedly essential) element of how Beale
attempted to kill the officers. In his petition for writ of certiorari, he again argued that his
indictment was defective because it lacked the element of an overt act, which he described as
essential element of attempted murder. The Mississippi Supreme Court granted Beale’s petition
for writ of certiorari, considered the claim, and rejected it. The Mississippi Supreme Court thus
held that Beale’s indictment correctly stated the necessary elements of attempted murder under
state law.
The Mississippi Supreme Court discussed the issue in detail:
¶4. In 2013, the Legislature amended the attempt statute by adding the language
found in subsection (2), which only addresses attempted murder. See Miss. Code
Ann. § 97-1-7 (Rev. 2020).7 The Legislature specifically set apart attempted
murder from all other attempt crimes by removing the overt act requirement as to
attempted murder. Prior to the 2013 amendment, the statute read, “[e]very
person who shall design and endeavor to commit an offense, and shall do any
overt act toward the commission thereof, but shall fail therein, or shall be
prevented from committing the same ....” Miss. Code Ann. § 97-1-7 (Rev. 2006).
In subsection (2), which was added by the 2013 amendment, the Legislature
definitively wrote that only “an act” be committed in furtherance of the murder.
Miss. Code Ann. § 97-1-7 (Rev. 2020). Beale unconvincingly argues that the
amended statute should be interpreted no differently than its predecessor. He
claims his indictment was defective because it did not specify an overt act toward
the commission of attempted murder.
Beale, 367 So. 3d at 162 (emphasis added).
7 The Mississippi Supreme Court quoted Mississippi’s entire amended attempt statute:
(1) Every person who shall design and endeavor to commit an offense, and shall
do any overt act toward the commission thereof, but shall fail therein, or shall
be prevented from committing the same, on conviction thereof, shall, where no
other specific provision is made by law for the punishment of the attempt, be
punished by imprisonment and fine for a period and for an amount not greater
than is prescribed for the actual commission of the offense so attempted.
(2) Every person who shall design and endeavor to commit an act which, if
accomplished, would constitute an offense of murder under Section 97-3-19,
but shall fail therein, or shall be prevented from committing the same, shall be
guilty of attempted murder and, upon conviction, shall be imprisoned for life
in the custody of the Department of Corrections if the punishment is so fixed
by the jury in its verdict after a separate sentencing proceeding. If the jury
fails to agree on fixing the penalty at imprisonment for life, the court shall fix
the penalty at not less than twenty (20) years in the custody of the Department
of Corrections.
Beale, 367 So. 3d at 162 (quoting Miss. Code Ann. § 97-1-7 (Rev. 2020) (emphasis added by
this court and the Mississippi Supreme Court)).
The Mississippi Supreme Court further noted that, “[a]s Judge McCarty correctly held in
the Court of Appeals majority opinion, prior to 2013, all attempt crimes were treated the same
under the general statute, and that general statute required proof of an ‘overt act.’” Id. (citing
Miss. Code Ann. § 97-1-7 (Rev. 2006)). The Mississippi Supreme Court decided that
[a] plain reading of the amended statute, however, leaves no question that the
Legislature chose to treat the crime of attempted murder differently from all other
attempt crimes, by removing from the text the ‘overt act’ language in Section 97-
1-7(2), which singularly addresses attempted murder.
Beale, 367 So. 3d at 162.
The Mississippi Supreme Court applied the “‘fundamental rule of statutory
construction’”—“‘the plain meaning rule’”— and concluded that “[t]he Legislature’s amended
statute plainly reads that an overt act is not necessary to prove attempted murder.” Beale, 367
So. 3d at 162–63. The Mississippi Supreme Court ultimately explained:
Beale was indicted for three counts of attempted murder. His indictment tracked
the language of Section 97-1-7(2), stating that Beale “did willfully, unlawfully,
and feloniously, attempt to kill Officer [name], a human being ... [and] acted with
the deliberate design to effect the death of Officer [name], but failed to
successfully complete the act, in direct violation of Section 97-3-19(1)(a) ....”
Because the Legislature did not include a requirement to set forth a direct, overt
act in an indictment under the attempted murder statute, we hold that Beale’s
indictment for attempted murder did not require the description of an overt act
and was sufficient. Thus, we find that there is no defect in Beale’s indictment,
and his convictions and sentences are affirmed.
Beale, 367 So. 3d at 163.
Under this ruling, the Legislature actually singled out attempted murder and removed the
language regarding an “overt act;” hence, according to the Mississippi Supreme Court, the
legislative intent is clear, and the State need not specify an overt act in the Indictment.8 For
8 A close reading of the original and amended statutes could lead to the opposite
conclusion. The court can discern no practical difference between the language of the original
statute and that of the amended one. Hence, it appears that the Indictments under each statute
these reasons, Beale’s indictment correctly stated the necessary elements of attempted murder
under Mississippi law . Id.
The state appellate courts rejected Beale’s challenge to his indictment under Mississippi
law. Beale has not shown that his indictment was “so defective that the convicting court had no
jurisdiction.” Evans, 577 F.3d at 624. As such, this state law issue is precluded from federal
habeas corpus review. In addition, the decisions rejecting this claim are not contrary to, nor an
unreasonable application of, clearly established federal law, nor are they based on an
unreasonable determination of facts in light of the evidence presented. Hence, Beale is not
should have the same require elements – including a description of the “act” or “overt act” giving
rise to the attempted murder charge.
The amended statute states that, to complete the offense of attempted murder, the
offender must “endeavor to commit an act which, if accomplished, would constitute an offense
of murder under Section 97-3-19.” Miss. Code Ann. § 97-1-7 (Rev. 2020) (emphasis added).
It would make sense to require that the “act” mentioned in the amended statute be described in
the Indictment – to put the defendant on notice of the act or acts giving rise to the charged crime
(attempted murder). After all, under the previous statute, the State was required to describe the
“overt act” giving rise to the charge of attempted murder. As shown below, in this context,
there appears to be little, if any, difference between an “act” (required in the amended statute)
and an “overt act” (required in the original statute).
An act “[d]enotes external manifestation of actor’s will … something done voluntarily by
a person.” ACT, Black’s Law Dictionary (5th ed. 1979). An overt act is “[a]n open, manifest
act from which criminality may be implied.” OVERT ACT, Black’s Law Dictionary (5th ed.
1979). Combining the definitions, an overt act is an open, external manifestation of an actor’s
will from which criminality may be implied.
As the underlying crime is murder, “criminality may be implied” from the act
constituting the attempt to commit murder. Relying on the definitions above, found in Black’s
Dictionary, an act, the “external manifestation of [an] actor’s will” to commit murder (under the
amended statute) seems to be merely a specific example of an overt act – “[a]n open, manifest
act from which criminality [attempted murder] may be implied” (under the original statute).
Black’s Law Dictionary (5th ed. 1979). Thus, to properly notify the defendant of the charge, it
appears that the charging instrument in each case should describe the behavior giving rise to the
crime, whether that behavior is described as an “act” or an “overt act.”
Regardless, this court is bound by the state court’s interpretation of its own law – and will
leave the state court’s decision undisturbed.
entitled to federal habeas corpus relief on his renewed challenge to his indictment in Ground
One.
Ground Three: Introduction of “Hearsay” Evidence
In Ground Three, Beale argues that the trial court erred by allowing the State to introduce
“hearsay” testimony through Officer Colin Hall. Doc. 1. Under Miss. R. Ev. 801, hearsay is “a
statement that … the declarant does not make while testifying at the current trial or hearing …
and … a party offers in evidence to prove the truth of the matter asserted in the statement.”
Miss. R. Ev. 801(c)(1) and (2). Beale argues that the State used hearsay testimony to prove that
he intended to kill police if they responded to Piccola’s 911 call. Doc. 1.
On direct appeal, the Mississippi Court of Appeals rejected Beale’s hearsay challenge as
meritless, holding that Officer Hall’s testimony did not meet the definition of hearsay because it
was not offered to prove the truth of the matter asserted. Exhibit C. When Beale renewed his
argument on state post-conviction review the Mississippi Supreme Court denied it as “barred by
res judicata[.]” Exhibit G; Doc. 14-12 (SCR, 2024-M-912).
The trial court allowed Officer Hall to repeat the statement that Piccola provided when he
arrived at the crime scene. Beale has not shown that the admission of the challenged testimony
was hearsay; indeed, Piccola’s testimony was not admitted for its truth, but to reveal the reason
Officer Hall took the subsequent actions during his investigation. Beale, 361 So. 3d at 682. As
such, the trial court did not err by admitting it. On direct appeal, the state appellate court held
that the officer’s statement was not hearsay evidence. Id.
“However, assuming arguendo that it could constitute such evidence, the Court [has]
note[d] that the Fifth Circuit has held that the ‘mere erroneous admission of prejudicial testimony
does not, in itself, justify federal habeas relief unless it is material in the sense of a crucial,
critical, highly significant factor, in the context of the entire trial.’” Totten v. Shaw, No. 3:17-
CV-205-SA-DAS, 2018 WL 3785457, at *7 (N.D. Miss. Aug. 9, 2018) (citing Johnson v.
Blackburn, 778 F.2d 1044, 1050 (5th Cir. 1985)).
The record reflects that Officer Hall was the first to respond to Piccola’s 911 call. Doc.
14-4 at 42 (SCR, Vol. 4 at 191). Without objection, Officer Hall responded to the State’s
question about what he “learned” from police dispatch. Doc. 14-4 at 42 (SCR, Vol. 4 at 191).
Officer Hall testified that dispatch informed him that a man inside the apartment was “being
belligerent, making threats to people inside the residence.” Doc. 14-4 at 42 (SCR, Vol. 4 at
191). He explained that the dispatcher was not “really sure exactly what threats were being
made, but the person who lived in the apartment wanted [the man] removed because of the
disturbance he was creating.” Doc. 14-4 at 42 (SCR, Vol. 4 at 191).
Officer Hall explained that, when he arrived at the apartment, he spoke with Piccola to
gather as much information as possible before entering the apartment. Doc. 14-4 at 43 (SCR,
Vol. 4 at 192). The State then asked Officer Hall what he learned when he began gathering
information from her. Doc. 14-4 at 43 (SCR, Vol. 4 at 192). Beale interposed a hearsay
objection, arguing that the State was trying to show that Beale had threatened the officers. Doc.
14-4 at 44–45 (SCR, Vol. 4 at 193–94). The State countered that it had not solicited a hearsay
statement; instead, Officer Hall’s testimony would explain the course of his investigation. Doc.
14-4 at 44–45 (SCR, Vol. 4 at 193–94). The trial court agreed that the statements were
admissible to explain the officers’ next actions. Doc. 14-4 at 45 (SCR, Vol. 4 at 194). Then
Officer Hall told the jury what he Piccola told him:
We learned that there was a male inside the apartment who she identified to us as
Mr. Jerry Beale. He was creating a disturbance inside, making threats to people
inside the apartment. She stated that he had been drinking all night and appeared
to be heavily intoxicated at this point and said that if the police were called, that
he was going to kill them.
Doc. 14-4 at 45 (SCR, Vol. 4 at 194). Indeed, the officers needed a description of the potential
danger – a heavily intoxicated man inside the house threatening to kill any police officers who
entered. Whether the information was true or not, the officers could use it to devise and execute
a prudent plan to handle the situation.
On direct appeal, the Mississippi Court of Appeals observed:
“Our supreme court has granted an exception for certain hearsay statements made
to the police during the course of their investigation, holding that such statements
are permissible.” Anderson v. State, 1 So. 3d 905, 914 (¶25) (Miss. Ct. App.
2008). “It is elemental that a police officer may show that he has received a
complaint, and what he did about the complaint without going into the details of
it.” Id. “However, where the out-of-court statement is ‘testimonial’ in nature,
the statement is generally not admissible unless the declarant is unavailable to
testify in court, and the defendant has had a prior opportunity to cross-examine
him or her.” Id. at 914–15 (¶25) (citing Crawford v. Washington, 541 U.S. 36,
59 (2004)).
Beale, 361 So. 3d at 682. Here, “Officer Hall’s statements were not admitted to prove the truth
of the matter asserted; rather his statements were admitted to explain the next steps in the course
of his investigation.” Id. It is a close call; however, “even if Officer Hall’s recitation of
Piccola’s statement to him was considered to be testimonial, any error by the trial court in
admitting the statements would be harmless because [Beale] had the opportunity to cross-
examine [Piccola].” Id. at 682–83.
In addition, the information was presented to the jury through another source:
[T]he record in this case shows that Piccola’s statements regarding Beale’s threats
toward police officers were also introduced at trial through the testimony of the
911 dispatcher.
Id. at 683. Further, “[a] recording of the 911 call was also played for the jury.” Id. Thus,
given Beale’s opportunity for cross-examination and the presentation of the same information
from other sources, the state appellate court held that it was “within the trial court’s discretion to
allow the officer to testify in this circumstance” as to what he was told in the course of his
investigation. Id.9
The trial court did not err by allowing Officer Hall to testify about what he learned when
he arrived on scene and spoke to Piccola. Piccola’s out-of-court statement explained why the
officers entered the apartment – and why they chose their strategy in interacting with Beale.
Officer Hall’s testimony merely described a brief interview, which informed the officers’ next
steps, and, in any event, the information was introduced through other witnesses and evidence.
Hence, the admission of the challenged testimony was not crucial, critical, or highly significant
to the jury’s determination; nor did it render Beale’s trial fundamentally unfair. The state
appellate courts properly denied Beale’s challenge to the trial court’s admission of “hearsay”
testimony in Ground Three. As such, Beale is not entitled to federal habeas corpus relief as to
Ground Three.
Ground Four: Ineffective Assistance of Counsel Regarding
Lack of Forensic Testing of Blood Found on the Floor
In Ground Four, Beale argues that his trial counsel was ineffective for failing to argue
that no samples were taken of the “blood on the floor.” Doc. 1 at 12. Beale argues that his trial
counsel “was made aware of the 911 call introduced in [his] 2nd trial, and in that call Piccola
Thomas says ‘how did blood get on the floor, where did this blood come from[,]’ before officers
arrived.” Doc. 1 at 12. Beale alleges that “CSI took pictures of the officer[’]s taser next to
[Beale’s] blood and said it was ‘Officer Vuncannon’s blood next to a taser,’” but “no DNA
test[s] were ever done.” Doc. 1 at 12. Beale alleges that he “told [counsel] it was [his] blood
on the floor,” and “she said ‘we don’t want to bring that up.’” Doc. 1 at 12.
9 The state appellate court further noted that the challenged testimony could have been
admitted on another basis – excited utterance. Beale, 361 So. 3d at 683 n.4.
Ineffective Assistance of Counsel
The court must address claims of ineffective assistance of counsel under the two-prong test set
forth in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). To prove
that defense counsel was ineffective, the petitioner must show that counsel’s performance was
deficient and that the deficiency resulted in prejudice to her defense. Under the deficiency prong of
the test, the petitioner must show that counsel made errors so serious that he was not functioning as the
“counsel” guaranteed by the Sixth Amendment. Strickland, 466 U.S. at 687. The court must
analyze counsel’s actions based upon the circumstances at the time – and must not use the crystal
clarity of hindsight. Lavernia v. Lynaugh, 845 F.2d 493, 498 (5th Cir. 1988). The petitioner “must
overcome the presumption that, under the circumstances, the challenged action ‘might be considered
sound trial strategy.’” Strickland, 466 U.S. at 689 (citation omitted).
To prove prejudice, the petitioner must demonstrate that the result of the proceedings would
have been different or that counsel’s performance rendered the result of the proceeding fundamentally
unfair or unreliable. Vuong v. Scott, 62 F.3d 673, 685 (5th Cir. 1995), cert. denied, 116 S.Ct. 557
(1995); Lockhart v. Fretwell, 506 U.S. 364, 369 (1993); Sharp v. Johnson, 107 F.3d 282, 286 n.9 (5th
Cir. 1997). “When §2254(d) applies, the question is not whether counsel’s actions were reasonable.
The question is whether there is any reasonable argument that counsel satisfied Strickland’s deferential
standard.” Harrington v. Richter, 131 S.Ct. 770, 788 (2011); Premo v. Moore, 131 S.Ct. 733 (2011).
Beale’s Claim Regarding the Lack of Forensic
Analysis as to the “Blood on the Floor”
First, Beale’s claim that counsel provided constitutionally ineffective legal assistance
performance regarding lack of forensic blood analysis is without substantive merit. “A
defendant who alleges a failure to investigate on the part of his counsel must allege with
specificity what the investigation would have revealed and how it would have altered the
outcome of the trial.” Lockett v. Anderson, 230 F.3d 695, 713 (5th Cir. 2000) (citation omitted);
see also Lincecum v. Collins, 958 F.2d 1271, 1279–80 (5th Cir. 1992) (denying habeas corpus
relief where petitioner “offered nothing more than the conclusory allegations in his pleadings” to
support claim that counsel was ineffective for failing to investigate and present certain evidence).
Beale simply does not state how testing of the blood on the floor would have bolstered his
defense, and the evidence presented at trial shows that such testing would not have done so.
Indeed, if forensic analysis had definitively shown the presence of any officers’ blood, even
mixed with his own, the testing would have damaged Beale’s defense.
Second, reasonable jurists could conclude that counsel’s investigatory decisions as to her
defense strategy met the Strickland standard. The petitioner was charged with the attempted
murder of three police officers. Officers Hall and Fite tased Beale in the bathroom, and all three
officers testified that that Beale drew his weapon and was shooting at all of them in an attempt to
kill them. The presence of the blood is largely superfluous – no matter whose blood it was.
The relevant proof is the testimony that Beale opened fire at the officers in order to kill them.
Given the evidence presented, even if none of the officers suffered injury from the attack,
considering the situation and the officers’ proximity to each other, a jury could easily have found
him guilty of attempted murder as to all three officers.
For these reasons, Beale has not shown that he suffered prejudice from counsel’s decision
not to raise the issue of the lack of forensic blood testing. Indeed, trial counsel’s strategy
secured an acquittal on Beale’s attempted murder charge regarding Officer Vuncannon – who
was positioned behind Officers Hall and Fite – and who was actually injured when Beale fired at
the three officers. See Doc. 14-4 at 74 (SCR, Vol. 4 at 223) (Officer Hall testifying that he saw
blood on the floor and feared that he had been hit); Doc. 14-4 at 126 (SCR, Vol. 4 at 275)
(Officer Fite testifying that Beale aimed his weapon at fired “[d]irectly at [her]self and Officer
Hall”); see also Doc. 14-5 at 15 (SCR, Vol. 5 at 314 (Officer Vuncannon testifying that the
“[d]etective seemed to think that [he] had been grazed by one of the bullets that came by”); Doc.
14-7 at 20–22 (SCR, Exhibits, S-10) (photographs of Officer Vuncannon’s injuries).
Thus, counsel’s trial strategy regarding the blood evidence was sufficient to convince the
jury to acquit Beale as to one count of attempted murder. Hence, Beale has not met the
Strickland standard regarding trial counsel’s strategic choice on this issue. Pape, 645 F.3d at
291; Yohey, 985 F.2d at 228; see also Dunn, 594 U.S. at 739 (“strategic decisions … are entitled
to a strong presumption of reasonableness”).
Under AEDPA standards, the Mississippi Supreme Court reasonably rejected Beale’s
ineffective-assistance claim, and he has not overcome the deference afforded to the rejection of
that claim in Ground Four. Richter, 562 U.S. at 105; Dunn, 594 U.S. at 739 (noting that federal
court’s must be “doubly deferential” to the state Supreme Court’s decisions regarding ineffective
assistance of counsel); Knowles v. Mirzayance, 556 U.S. 111, 123 (2009) (same). As such,
Beale’s request for habeas corpus relief as to Ground Four will be denied.
Conclusion
For the reasons set forth above, the instant petition for a writ of habeas corpus will be denied.
Ground Two will be dismissed with prejudice as procedurally barred. In addition, Grounds One,
Three, and Four will be denied, as the Mississippi Supreme Court decided the issues on the merits,
and the petitioner has not met the AEDPA standard to overcome that decision. A final judgment
consistent with this memorandum opinion will issue today.
SO ORDERED, this, the 25th day of November, 2025.
/s/ Michael P. Mills
UNITED STATES DISTRICT JUDGE
NORTHERN DISTRICT OF MISSISSIPPI Case Information
- Court
- N.D. Miss.
- Decision Date
- November 25, 2025
- Status
- Precedential