           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                    Fifth Circuit

                                                 FILED
                                                                           January 5, 2010

                                     No. 08-60248                      Charles R. Fulbruge III
                                   Summary Calendar                            Clerk



HARRY L. JACKSON

                                                   Petitioner - Appellant
v.

MISSISSIPPI DEPARTMENT OF CORRECTIONS; MARGARET
BINGHAM; JACKIE PARKER; JIM HOOD

                                                   Respondents - Appellees




                   Appeal from the United States District Court
                     for the Southern District of Mississippi
                             USDC No. 3:05-CV-239


                          ON PETITION FOR REHEARING
Before DAVIS, SMITH, and DENNIS, Circuit Judges.
PER CURIAM:*
       The petition for rehearing is DENIED. The Court’s opinion issued on
November 23, 2009 is hereby withdrawn, and the following opinion is
substituted:




       *
         Pursuant to 5TH CIR . R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .
R. 47.5.4.
                                  No. 08-60248

      Petitioner Harry L. Jackson appeals from the district court’s denial of his
petition for a writ of habeas corpus made pursuant to 28 U.S.C. § 2254. Jackson
was convicted in 2003 following a jury trial in a Mississippi state court of the
sale of a Schedule II controlled substance, and subsequently sentenced to a term
of twenty years imprisonment, with the final five years served on post-release
supervision in lieu of incarceration. After unsuccessfully pursuing his direct
appeals, Jackson filed the instant petition for a writ of habeas corpus on April
11, 2005.    The district court denied Jackson’s petition, dismissed it with
prejudice, and thereafter denied his request for a certificate of appealability. We
granted Jackson a certificate of appealability as to only one issue: whether there
was insufficient evidence to support his conviction, resulting in a violation of his
constitutional right to due process as interpreted by the United States Supreme
Court in Jackson v. Virginia, 443 U.S. 307 (1979). For the reasons set forth
below, we affirm the judgment of the district court.
                               I. BACKGROUND
      On February 11, 2003, petitioner was convicted following a jury trial of a
single count of Sale of a Schedule II Controlled Substance (cocaine), in violation
of Miss. Code Ann. § 41-29-139. The magistrate judge’s report and
recommendation, as adopted by the district court, summarized the background
facts of petitioner’s trial:
             Petitioner’s arrest, indictment and conviction arose out of an
      undercover drug sting operation executed by agents of the
      Mississippi Bureau of Narcotics (MBN). At trial, the testimony of
      Sheldon Jolliff and Jason Powell, two of the agents, established the
      following. On April 2, 2001, several MBN agents, including Powell,
      Jolliff, and Tim Wroten, met with a confidential informant (the CI)
      in Amite County and prepared for a purchase of narcotics from
      Reginald Graves. The CI and Powell, who was wired, drove to
      Graves’ home in the CI’s truck; Agent Jolliff followed in a separate
      unmarked vehicle and monitored the others’ activities via the
      wireless transmission from Powell. When Powell and the CI arrived


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at Graves’ residence, Graves informed them that he did not have
any drugs. He then entered the truck with Powell and the CI and
directed them to a location on Ash Street in Gloster, Mississippi for
the purchase. When they arrived, Graves exited the car and talked
with several individuals. He then returned to the truck, saying that
the individuals had the drugs but had not weighed them yet. Powell,
the CI and Graves drove around the area for a few minutes and then
returned to Ash Street. Graves again got out of the car, spoke with
some of the individuals and then returned to the truck. Graves
informed Powell and the CI that they needed to drive around a few
minutes while the drugs were being weighed. They drove to the
parking lot of an auto parts store in Gloster and waited. A short
while later, a car passed, and Graves commented that the drugs
which they were to purchase were in the passing car. Returning to
the Ash Street location for the third time, they pulled in behind the
car that had passed them earlier. Graves once again exited the car;
after he had done so, Powell radioed in the tag number of the car
and learned that it was registered to Petitioner. Powell and the CI
watched while Graves approached two men standing about ten
yards away from the truck and apart from the other individuals at
the scene. Graves walked back to the truck and requested the
purchase money, eight-hundred and fifty dollars, from Powell.
Powell gave Graves the cash, which had been provided to Powell by
Jolliff, and Graves returned to the two men. Powell saw the three
men and Graves exchange something with their hands. Graves
returned to the truck with a bag of cocaine. Powell and the CI then
left the scene; Graves remained. After rendezvousing with Jolliff
and the other agents, Powell, using photographs, identified the two
men as Murphy Sanders and Harry Jackson.

       Graves testified for the defense. He maintained that Jackson
was not present or involved in any way with the sale; rather he
claimed that the second individual who participated in the sale
along with Sanders was Graves’ cousin, Navaree Green. He
explained that Green was driving Jackson’s car because Green was
in the process of purchasing it from Jackson. According to Graves,
Powell was drinking beer during the operation. Murphy Sanders
also testified on behalf of Jackson. He admitted being present at the
scene but said he did not see Jackson there. He also stated that he
did not know Navaree Green and did not know if Green had been



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      present. Sanders denied any knowledge of or participation in a drug
      sale at the Ash Street location on the evening in question.

             The defense called Nekiesha Simmons, a former girlfriend of
      Jackson, as an alibi witness. After Simmons invoked her Fifth
      Amendment right against self-incrimination and refused to testify,
      the court determined her to be unavailable and allowed prior sworn
      testimony given by her to be admitted into evidence. In that
      testimony, Simmons stated Jackson had flown to Massachusetts to
      visit her for two weeks in the beginning of April of 2001 and
      therefore could not have been present in Amite County on April 2,
      2001. Simmons explained that Jackson’s sister worked for
      Continental Airlines and that Jackson flew Continental because his
      sister could provide him with inexpensive tickets.

             The prosecution called as a rebuttal witness Denise Locke, a
      supervisor of ticket documentation with Continental Airlines. She
      testified that Jackson flew to the northeast in April of 2001, but not
      until April 20. Her documentation also showed that Jackson
      returned on April 23. The state then introduced flight documents
      obtained from the defense which showed that Jackson had departed
      on March 31. The witness noted that all of the flight information on
      the documents other than the departure date matched her official
      records. She concluded that the document showing a March 31
      departure date was forged.

            Agent Tim Wroten testified for the state in rebuttal. He stated
      that Murphy Sanders had told him that Jackson had given Sanders
      one hundred dollars for his participation in the sale.

Jackson v. Miss. Dep’t of Corrections, Report and Recommendation, 3:05-CV-239-
HTW-JCS, at slip op. at 2-5 (S.D. Miss. Apr. 4, 2007). The trial court sentenced
petitioner to a twenty-year term of imprisonment, with the last five years
suspended, and an additional five-year term of supervised release.
                        II. STANDARD OF REVIEW
      “In a habeas corpus appeal, we review the district court’s findings of fact
for clear error and review its conclusions of law de novo, applying the same
standard of review to the state court’s decision as the district court.” Thompson

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v. Cain, 161 F.3d 802, 805 (5th Cir. 1998); see also Beazley v. Johnson, 242 F.3d
248, 255 (5th Cir. 2001).
                              III. DISCUSSION
      The Due Process Clause of the Fourteenth Amendment protects a criminal
defendant against conviction “except upon sufficient proof—defined as evidence
necessary to convince a trier of fact beyond a reasonable doubt of the existence
of every element of the offense.” Jackson v. Virginia, 443 U.S. 307, 315 (1979).
In applying this standard, “the relevant question is whether, after viewing the
evidence in the light most favorable to the prosecution, any rational trier of fact
could have found the essential elements of the crime beyond a reasonable doubt.”
Id. As a federal habeas court, “we must defer to the factual findings in the state
court proceedings” and “respect the ability of the fact-finder to evaluate the
credibility of the witnesses.” Knox v. Butler, 884 F.2d 849, 851 (5th Cir. 1989).
      Under 28 U.S.C. § 2254(a), the federal courts have jurisdiction to hear a
petition for a writ of habeas corpus made on behalf of a person in custody
pursuant to the judgment of a state court. That jurisdiction may be exercised
only for the purpose of determining whether that person is “in custody in
violation of the Constitution or laws or treaties of the United States.” 28 U.S.C.
§ 2254(a). The court's power to grant habeas relief is limited by AEDPA, as
codified at 28 U.S.C. § 2254(d). Section 2254(d) provides:
            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




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            (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).      The phrase “clearly established Federal law[] as
determined by the Supreme Court of the United States” means “the holdings, as
opposed to the dicta, of [the Supreme Court's] decisions as of the time of the
relevant state-court decision.” Williams v. Taylor, 529 U.S. 362, 412 (2000).
      State law supplies the substantive elements of the offense. Jackson, 443
U.S. at 324 n.16. Mississippi law provides that it is illegal to “knowingly or
intentionally . . . sell, barter, transfer, manufacture, distribute, dispense or
possess with intent to sell, barter, transfer, manufacture, distribute or dispense,
a controlled substance.” Dunlap v. State, 956 So.2d 1088, 1091 (Miss. App. 2007)
(citing Miss. Code Ann. § 41-29-139). Mississippi courts have explained the level
of involvement that must be proved for a defendant to be found guilty of sale of
a controlled substance. “To prove sale of a controlled substance, the State need
not prove that the defendant personally placed the substance in the hands of the
buyer or that the defendant personally profited from its sale.” Spann v. State,
970 So. 2d 135, 137-38 (Miss. 2007).        Rather, the State need only prove
“substantial knowing participation in the consummation of a sale or in arranging
for the sale.” Williams v. State, 463 So. 2d 1064, 1066 (Miss.1985). Thus, “[a]ny
person who is present at the commission of a criminal offense and aids, counsels,
or encourages another in the commission of that offense is an ‘aider and abettor’
and is equally guilty with the principal offender,” provided that the proper jury
instructions are given. Spann, 197 So. 2d at 138 (internal quotation marks and
citation omitted). Stated differently, “only a minimal involvement in an illegal
drug transaction is sufficient to support a criminal conviction for drug
trafficking.” Flowers v. State, 726 So. 2d 185, 187 (Miss. App. 1998).




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      Petitioner argues that there was insufficient evidence that he “sold” the
controlled substance, resulting in a violation of the Due Process Clause of the
Fourteenth Amendment.        Specifically, petitioner contends that the State
introduced no evidence that he “knowingly participated” in the sale; instead, he
argues, the State only offered evidence that he was at the scene of the
transaction. The Mississippi Court of Appeals considered and rejected this
argument on direct appeal, concluding that there was sufficient evidence to
support the conviction. See Jackson v. State, 885 So.2d 723, 728-29 (Miss. Ct.
App. 2004). This was not an unreasonable application of the Supreme Court’s
decision in Jackson v. Virginia because there was sufficient evidence for the jury
to conclude that petitioner had “minimal involvement” in the illegal drug
transaction. Aside from providing substantial evidence that petitioner was
present at the transaction, Agent Powell testified that although he “didn’t see
anything go hand in hand,” he “did . . . see those three individuals [Graves,
Jackson, and Sanders] doing something over there with their hands,” and that
he saw Jackson “doing stuff with his hands.” And the two men arrived at the
transaction in a car belonging to petitioner, which Graves had previously
described as containing the cocaine. The jury was entitled to credit this evidence
to find that petitioner had “substantial knowing participation in the
consummation of a sale or in arranging for the sale.” Williams, 463 So. 2d at
1066. Accordingly, we conclude the state court’s ruling was not contrary to, nor
did it involve an unreasonable application of Supreme Court precedent, nor was
it based on an unreasonable determination of the facts. See 28 U.S.C. § 2254(d).
                              IV. CONCLUSION
      For the foregoing reasons, we AFFIRM the judgment of the district court.




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