Fairman v. Anderson

188 F.3d 635, 1999 U.S. App. LEXIS 23492, 1999 WL 710527
CourtCourt of Appeals for the Fifth Circuit
DecidedSeptember 28, 1999
Docket98-60420
StatusPublished
Cited by140 cases

This text of 188 F.3d 635 (Fairman v. Anderson) is published on Counsel Stack Legal Research, covering Court of Appeals for the Fifth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Fairman v. Anderson, 188 F.3d 635, 1999 U.S. App. LEXIS 23492, 1999 WL 710527 (5th Cir. 1999).

Opinions

CARL E. STEWART, Circuit Judge:

In this appeal, the State of Mississippi (“State”) contests the district court’s grant of Petitioner-Appellee Jerry Fairman’s (“Fairman”) petition for habeas corpus relief pursuant to 28 U.S.C. § 2254 (1988). As we will explain infra, although we disagree with some of the district court’s reasoning, we concur in its conclusion that Fairman is entitled to habeas corpus, and we thus affirm the judgment of the court below.

I

On the afternoon of September 7, 1985, Fairman and Laverne “Whoop” Jones (“Jones”), each armed with a knife, met on a street corner and engaged in an argument. See Fairman v. State, 513 So.2d 910, 912 (Miss.1987). Michael Prewitt (“Prewitt”), who was also present, broke up the altercation. See id. In the interim, someone called a police officer, who reported to the area and stated that he would straighten out the “mess.” See id. All three men subsequently left the scene. See id.

[638]*638After dark that same day (around 6:30 p.m.), Fairman and Prewitt drove to a store in Fairman’s truck. See id. Fair-man went into the store; when he returned to the truck, he and Prewitt drove behind the store without turning on the truck’s headlights. See id. When he subsequently turned on the headlights, Fair-man saw Jones in front of the truck, approaching them. See id. Fairman stopped the truck. He then exited the vehicle, and, noting to Prewitt that “he’s got something,” armed himself with a large stick that he more commonly used to prop up the hood of his truck. See id. Fairman beat Jones about the head with the stick several times; Jones fell to the ground but then rose and walked away in the direction of his house. See id.

Officer Ollie White (“White”), who was a short distance away, arrived at the scene - shortly after the beating.1 See id. He questioned Prewitt and Fairman (who was still holding the stick) as to what had happened. See id. Satisfied that the fight was not serious and did not require any further detention, White allowed Prewitt and Fairman to leave the area.

Jones returned home around 8:30 p.m. with his head bleeding; hours later, Annie Mae Miller (“Miller”), who lived with Jones, took him to the emergency room- of the local hospital, where he was examined, treated, and released. See id. Although the examination revealed that Jones’s jaw had been fractured, the X-rays revealed no skull fracture; the treating physician stitched Jones’s wounds and advised him to see his own doctor approximately a week later for removal of the stitches. See id. That same night, Miller reported that Jones had died in his sleep. See id.

An autopsy revealed that Jones died from an epidural hematoma which was secondary to head injuries from a beating with a blunt instrument. The hematoma was the product of a skull fracture, which extended across the top of Jones’s skull, from above his right ear to the left temple. See id. Investigators found Fairman’s stick to be consistent with the wound. See id.

Fairman was tried for the murder of Jones in the Circuit Court of Bolivar County, Mississippi. See id. at 911. At trial he urged a theory of self-defense, claiming that he hit Jones with the stick two to four times when he saw Jones reach for a knife as he came toward him. See id. at 912. He averred that, when Jones ceased his approach, he stopped hitting Jones. See id. Prewitt, the only eyewitness at the scene of both altercations, testified for the prosecution that, although he had seen a knife in Jones’s hand during the first argument, he had not seen any weapon at the time of the second altercation.

Fairman was convicted of murder less than capital on December 13, 1985, and sentenced to life in prison six days later. See id. at 911. The conviction and sentence were affirmed by the Mississippi Supreme Court on September 16, 1987, see id. at 916, and rehearing was denied on October 28,1987.

On January 9, 1989, Prewitt signed an affidavit recanting his trial testimony. In it, he stated that Jones had wielded a butcher knife during the second encounter and that Fairman had struck Jones only after the threat from the knife became apparent. He explained that he had committed perjury only because the police coerced him into making a false statement by threatening to charge him with the murder of Jones if he did not testify for the State.

Although the time for filing a petition for state post-conviction relief expired on September 16, 1990, Fairman did not file his petition until June 8, 1992, when he submitted a pro se state application for [639]*639leave to file a motion for post-conviction relief and a motion for post-conviction relief. He argued that his claims should not be procedurally barred as untimely because he had retained a series of attorneys to assist him on his case before the limitations period had expired, and each had failed to act. Fairman detailed through affidavits and exhibits his difficulties in attempting to procure legal assistance and also submitted newly-discovered evidence in the form of Prewitt’s affidavit. On July 29, 1992, the Mississippi Supreme Court denied Fairman’s claims as time-barred without exception pursuant to Miss.Code Ann. § 99-39-5(2) (Supp.1991), and denied his request for rehearing on September 13, 1992.

On August 24, 1993, Fairman filed a pro se motion asserting twelve claims for federal habeas relief pursuant to 28 U.S.C. § 2254 (1988).2 On December 16, 1996, the magistrate judge recommended that each of Fairman’s claims be dismissed except for his allegation that the state had knowingly used false evidence to obtain Fairman’s conviction. Addressing the procedural bar in § 99-39-5, the magistrate judge found that Fairman had alleged sufficient facts to establish “cause for his default” (the failure of the attorneys on whom he had relied to pursue relief for him) and “actual prejudice” that resulted from constitutional due process violations. Failure to consider the claims, the magistrate opined, also would lead to a fundamental miscarriage of justice. Although both Fairman and the State objected to the magistrate’s report and recommendation, the district court adopted the findings therein on February 13, 1997. In its attendant order, the district court explained why attorney inaction in Fairman’s ease constituted sufficient cause for default and sent the case back to the magistrate for an evidentiary hearing. The magistrate appointed counsel for purposes of the hearing, which attorney continues to represent Fairman.

After taking testimony from Prewitt and White on the newly-discovered evidence claim on May 27 and June 27, 1997, the magistrate judge filed a second report and recommendation on November 12, 1997, making specific factual findings and granting Fairman habeas relief. He found that Fairman’s request for a new trial should be granted because his claims were not procedurally barred; that Prewitt’s recantation was credible;3

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Cite This Page — Counsel Stack

Bluebook (online)
188 F.3d 635, 1999 U.S. App. LEXIS 23492, 1999 WL 710527, Counsel Stack Legal Research, https://law.counselstack.com/opinion/fairman-v-anderson-ca5-1999.