SUPPLEMENTAL REPORT AND RECOMMENDATION

KAREN WELLS ROBY, Magistrate Judge.

On March 16, 2012, the undersigned United States Magistrate Judge issued a Report and Recommendation recommending the dismissal with prejudice of petitioner Yul Singleton's 28 U.S.C. § 2254 habeas claims alleging that counsel was ineffective for failure to file a motion to reconsider the sentence, that the State withheld exculpatory Brady and impeachment evidence, and that the State knowingly used perjured testimony.1 The recommendation was based on the Court's finding that Singleton failed to exhaust the ineffective assistance of counsel claim, and the claim was now in procedural default. Singleton's Brady and perjury claims also were found to be in procedural default. The Court further recommended that Singleton's other unexhausted claims be dismissed as abandoned pursuant to his voluntary request to do so.2

On April 2, 2012, Singleton filed objections to the Magistrate Judge's Report and Recommendation challenging the Court's findings related to the procedural default of the ineffective assistance of counsel claim and the Brady claim.3 The District Judge has referred the petitioner's objections to the undersigned for issuance of this Supplemental Report and Recommendation. To the extent necessary, the Court reiterates all of the standards of review, findings, conclusions, and recommendations which were thoroughly discussed in the prior Report and Recommendation (Rec. Doc. No. 30) and which are adopted as if fully restated herein.

I. Objection Regarding the Claim of Ineffective Assistance of Counsel for Failure to File a Motion to Reconsider

In both of the undersigned Magistrate Judge's prior reports4, it was resolved that Singleton did not raise to any state court his claim of ineffective assistance of counsel for failure to file a motion to reconsider. He has never given the state court's the opportunity to consider the issue.

Singleton raised this claim to this federal court for the first time. As outlined in detail in the Report and Recommendation, the failure to exhaust has resulted in the procedural default of the claim, and it should be dismissed with prejudice for that reason. Singleton has not objected to the Court's finding that his claim is unexhausted. Singleton also has not objected to the Court's finding that his claim is in procedural default, and that he has not met any exception to that default which would require further review of his claim by this Court.

Instead, Singleton objects to the Court's statement that his reliance on State v. Cotton, 45 So.3d 1030 (La. 2010) is misplaced. He also suggests that his counsel's failure to file the motion to reconsider forfeited his "right to pursue any sentencing issue on appeal."5 He does not explain how or why this would in anyway forgive his failure to exhaust the ineffective assistance of counsel claim. Furthermore, the failure to file the motion to reconsider did not completely forfeit his right to state court review.

In addressing Singleton's excessive sentence claims on direct appeal, the Louisiana Fifth Circuit Court of Appeal properly stated the law in Louisiana on consideration of a sentence on appeal where no motion to reconsider was filed:

State v. Singleton, 923 So.2d 803 (La. App. 5th Cir. 2006).

Singleton did not forfeit nor was he denied review of his sentence. The state court did in fact thoroughly review his claim of excessiveness under constitutional standards on direct appeal in spite of the lack of a motion to reconsider. Id., 923 So.2d at 806-808. His suggestion that he was wholly barred from any review is incorrect.

Nevertheless, the point of import before this Court is Singleton's failure to exhaust and the resultant procedural default of this ineffective assistance of counsel claim. As discussed previously, Singleton argued in his objections6 to the Court's first Report and Recommendation (Rec. Doc. No. 13), and apparently again to the United States Fifth Circuit Court of Appeal in his prior appeal,7 that he was not required to exhaust this claim because there is no mechanism to do so under Louisiana law, which he argued prohibits review of the ineffective assistance of counsel during the sentencing process, citing State v. Cotton.

As was explained to Singleton in the Court's latest Report and Recommendation (Rec. Doc. No. 30), State v. Cotton did not relieve him of his obligation to exhaust his sentencing-related ineffective assistance of counsel claim. In that opinion, the Louisiana Supreme Court prohibited post-conviction review of habitual offender proceedings, including claims of ineffective assistance of counsel during sentencing, excessive sentence and other sentencing errors. State v. Cotton, 45 So.3d at 1030 (citing La. Code Crim. P. art. 930.3). In doing so, the Louisiana Supreme Court specifically distinguished and noted that this post-conviction prohibition did not prevent a defendant from raising the sentencing errors on direct appeal of the sentencing judgment itself, citing La. Code Crim. P. art. 912(C)(1). Id.

It has been for sometime a well settled doctrine in Louisiana that La. Code Crim. P. art. 930.3 and cases like State ex rel. Melinie v. State, 665 So.2d 1172 (La. 1996) and its progeny, including State v. Cotton, prohibit challenges to sentencing errors, including ineffective assistance of counsel, on post-conviction review. See also, State ex rel. Brown v. State, 870 So.2d 976 (La. 2004); Richardson v. Cain, No. 07-2999, 2010 WL 1838642, at *11 (E.D. La. Apr. 1, 2010); Wallace v. Cain, No. 06-11271, 2009 WL 3367052, at *14 (E.D. La. Oct. 15, 2009) (Order adopting Report). This doctrine is based on state law, including La. Code Crim. P. art. 912(C)(1), which allows for sentencing matters to be raised on direct appeal, as was discussed in State v. Cotton.

In other words, Singleton's exhaustion obligation could have been met by presenting his sentencing-related ineffective assistance of counsel claim on direct appeal. See e.g., State v. Gordon, __ So.3d __, 2012 WL 555146, at *3-4 (La. App. 3d Cir. Feb. 22, 2012); State v. Jones, __ So.3d __, 2011 WL 5175118, at *2 (La. App. 2d Cir. Nov. 2, 2011); State v. Jenkins, 45 So.3d 173, 176-77 (La. App. 4th Cir. 2010); State v. Wolff, 30 So.3d 897, 905-06 (La. App. 5th Cir. 2009); State v. Myers, 981 So.2d 214 (La. App. 5th Cir. 2008); State v. Smith, 969 So.2d 694, 700-01 (La. App. 3d Cir. 2007); State v. Batiste, 947 So.2d 810, 819-20 (La. App. 4th Cir. 2006); State v. Blake, 872 So.2d 602, 608-09 (La. App. 3d Cir. 2004); see also, Hull v. Stalder, 234 F.3d 706, 2000 WL 1598016, at *1 (5th Cir. Sep. 28, 2000) (Table, Text in Westlaw). This is something Singleton failed to do in spite of the fact that he filed a pro se appellate brief. There is no state law prohibiting Singleton from raising his sentencing-related ineffective assistance of counsel claim on direct appeal. Cotton v. Cooper, No. 11-0231, 2011 WL 5025311, at *11 (E.D. La. Sep. 14, 2011) (Moore, M.J.) ("Sentencing issues, including claims of ineffective assistance of counsel during sentencing, may be challenged in [Louisiana] state court via direct appeal."), report adopted by 2011 WL 5025295, at *1 (E.D. La. Oct. 21, 2011) (Africk, J.); see e.g., State v. Smith, 734 So.2d 826, 834-835 (La. App. 4th Cir. 1999) (addressing sentencing related ineffective assistance of counsel on direct appeal); State v. Burns, 723 So.2d 1013, 1016-1017 (La. App. 4th Cir. 1998) (same).

In summary, contrary to Singleton's suggestion, there is no state law which would relieve him of his obligation to exhaust state remedies before seeking § 2254 review of this claim. His focus on the applicability vel non of State v. Cotton is misplaced and does not change the fact that he has failed to exhaust state court remedies. His failure to do so has left his ineffective assistance of counsel claim in procedural default.

As was thoroughly discussed in the Report and Recommendation (Rec. Doc. No. 30), Singleton has failed to show cause for his default or any prejudice arising from the failure to consider the claim that would act to avoid the procedural default. He also has failed to allege or establish his actual innocence or any miscarriage of justice arising from this Court's failure to consider his defaulted ineffective assistance of counsel claim. Nothing he argues here alters the recommendation that his ineffective assistance of counsel claim be dismissed with prejudice as procedurally defaulted. His objection to the Court's Report and Recommendation (Rec. Doc. No. 30) should be overruled.

II. Objections Regarding the Claim that the State violated Brady

In another of the three claims addressed in the prior Report and Recommendation (Rec. Doc. No. 30), Singleton alleged that the State withheld exculpatory impeachment evidence, his co-defendant Lavelle Norman's prior statement to police and an agreement for a lesser sentence, in violation of Brady v. Maryland, 373 U.S. 83 (1963).

The Supreme Court in Brady required the State to produce exculpatory and impeachment evidence for reasons of due process. Brady, 373 U.S. at 87. The Brady disclosure requirement applies only to evidence that is exculpatory and material to guilt or that is favorable impeachment evidence. Strickler v. Greene, 527 U.S. 263, 282 (1999); Brady, 373 U.S. at 87. In addition, claims pursuant to Brady involve "`the discovery of evidence after trial of information which had been known to the prosecution but unknown to the defense.'" (emphasis added) Lawrence v. Lensing, 42 F.3d 255, 257 (5th Cir. 1994) (quoting United States v. Agurs, 427 U.S. 97, 103 (1976)). "When information is fully available to a defendant at the time of trial . . ., the defendant has no Brady claim." United States v. Brown, 628 F.2d 471, 473 (5th Cir. 1980). Brady does not place any burden upon the prosecution to conduct a defendant's investigation or assist in the presentation of the defense's case. United States v. Marrero, 904 F.2d 251, 261 (5th Cir. 1990) (citations omitted).

Singleton first raised his Brady claim pro se on direct appeal to the Louisiana Fifth Circuit.8 The Court barred review of the claim under La. Code Crim. P. art. 841(A) for lack of a contemporaneous objection when the statement was introduced by the State at trial.9 The Louisiana Fifth Circuit also noted that Norman's statement had been introduced without objection at the hearing on the pretrial motion to suppress and also was relied upon by defense counsel to question Norman at trial.10

Based on this comment, the state appellate court apparently resolved that Norman's police statement was not Brady material at all, since it was made known and was available to Singleton's counsel prior to and during trial. Accord Lawrence, 42 F.3d at 257 (Brady only applies to matters discovered after trial); Brown, 628 F.2d at 473. Nevertheless, when Singleton raised this claim to this federal court on habeas review, the prevailing ruling by the state courts on the issue was the procedural bar under La. Code Crim. P. art. 841(A). See Fisher v. Texas, 169 F.3d 295, 300 (5th Cir. 1999) ("A state court expressly and unambiguously bases its denial of relief on a state procedural default even if it alternatively reaches the merits of a [petitioner's] claim."). Because of the imposition of the procedural bar, the undersigned Magistrate Judge resolved in the prior Report and Recommendation (Rec. Doc. No. 30) that Singleton's claim was procedurally barred and should be dismissed for that reason.

Singleton, citing Graves v. Dretke, 442 F.3d 334 (5th Cir. 2006), suggests that a Brady claim can never be procedurally barred for lack of a contemporaneous objection. He further argues, because the claim can not be barred, he is not required to show cause and prejudice or a fundamental miscarriage of justice to overcome the procedural bar since no such bar can be applied to his claim.

First and foremost, the Graves opinion does not hold or even address the notion that a procedural bar can not be imposed on a Brady claim. A proper reading of the language from Graves quoted by Singleton in his objection speaks instead of the standard of review to be used by a federal habeas court when reviewing a claim that was not addressed on the merits by a state court. Graves, 442 F.3d at 339. The specific language he relies on is as follows:

Id.

The Graves court was addressing the lower court's denial of habeas relief on a Brady claim that was reviewed on the merits. As recited in that opinion, the Brady claim was originally dismissed as procedurally barred by the federal district court. Id. The procedural bar was imposed, because the claim had been raised to the Texas state courts in a repetitive writ application that was dismissed by the state courts as an abuse of the writ. Id. On appeal from that ruling, the United States Fifth Circuit granted a certificate of appealability finding that Graves had established cause for his procedural default of the Brady claim, and as a result, the Court remanded the matter for consideration of the claim on the merits. Id., at 339 n.3. In the opinion cited and quoted by Singleton, the Fifth Circuit was addressing Graves's appeal from the district court's merits review of the Brady claim. In doing so, the Fifth Circuit set forth the appropriate standard of that merits review. Because the claims had been dismissed by the state courts on procedural grounds, the standards of a merits review provided for under the AEDPA could not be applied; there was no opinion to which the Court could give deference. Hence, the Court turned to the standard of review quoted in the language above.

To further explain the Graves court's statement, the Court is reminded that the standards of review under the AEDPA at 28 U.S.C. § 2254(d) are deferential standards, relying upon the merits review done by the state courts on the constitutional issue. That provision, along with the Supreme Court's decision in Williams v. Taylor, 529 U.S. 362 (2000), provide different standards for questions of fact, questions of law, and mixed questions of fact and law. Each of these standards rely upon determinations made by the state courts in resolving these questions. Id. A state court's determinations of questions of fact are presumed correct and the court must give deference to the state court findings unless they were 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)(2); see Hill v. Johnson, 210 F.3d 481, 485 (5th Cir. 2000), cert. denied, 532 U.S. 1039 (2001). A state court's determination of questions of law and mixed questions of law and fact are reviewed under § 2254(d)(1), as amended by the AEDPA, which provides that deference be given to the state court's decision unless the decision is "contrary to or involves an unreasonable application of clearly established federal law" as determined by the United States Supreme Court. Hill, 210 F.3d at 485.

In a situation like that in Graves, there was no state court opinion to which the Court could give deference. As a result, the Court was called upon to return to the pre-AEDPA standards of de novo review. See Henderson v. Cockrell, 333 F.3d 592, 598 (5th Cir. 2003) (citing Jones v. Jones, 163 F.3d 285, 299-300 (5th Cir. 1998) (applying de novo standard of review to ineffective assistance of counsel claims that were raised in state court, but not adjudicated on the merits)); see also, Carty v. Thaler, 583 F.3d 244, 253 (5th Cir. 2009). The Graves statement cited by Singleton had nothing to do with whether a Brady claim was subject to procedural default.

Instead, the courts have long settled that, because an "important interest in finality [is] served by state procedural rules, and . . . significant harm to the States . . . results from the failure of federal courts to respect them," procedural default occurs where a state court expressly bases its dismissal of a claim on an independent and adequate state procedural ground. Coleman v. Thompson, 501 U.S. 722, 750, 735 n.1 (1991). Under this well supported doctrine, there exists no prohibition by any federal court to the imposition of a state procedural bar on a Brady claim. In fact, the Supreme Court has repeatedly recognized that a state procedural default, even one based on failure to make a contemporaneous objection, will bar consideration of Brady claims on federal habeas review, unless the petitioner can show cause and prejudice or a fundamental miscarriage of justice to excuse the state imposed default. Murray v. Carrier, 477 U.S. 478, 485-489 (1986) (counsel's failure to make contemporaneous objection was not cause to overcome state imposed procedural bar); see also, e.g., Strickler v. Greene, 527 U.S. 263, 279-283 (1999) (addressing procedural default of Brady claim for failure to timely raise the claim); Gray v. Netherland, 518 U.S. 152, 160-162 (1996) (addressing procedural default of unexhausted Brady claim); see also, Moore v. Quarterman, 534 F.3d 454, 463-464 (5th Cir. 2008) (addressing procedural default of Brady claim submitted in a state petition barred as successive); Nixon v. Epps, 111 Fed. Appx. 237, 244-246 (5th Cir. 2004) (addressing procedural bar of Brady claim not timely raised in state courts). The very premise of Singleton's objection is therefore legally faulted.

There is no prohibition to the procedural bar of Singleton's Brady claim. As discussed in more detail in the Report and Recommendation, the procedural default of Singleton's Brady claim was subject to the cause and prejudice analysis, which Singleton failed to meet.11 He also has not shown that a fundamental miscarriage of justice would occur if the merits of his claim are not reviewed.12 Furthermore, Singleton has not objected to these findings and nothing in his objection alters the recommendations already made by this Magistrate Judge. Singleton's objection should be overruled.

III. Recommendation

For the foregoing reasons, it is RECOMMENDED that Yul Singleton's Objections (Rec. Doc. No. 31) to the Report and Recommendation (Rec. Doc. No. 30) be OVERRULED.

It is further RECOMMENDED, based on the Report and Recommendation (Rec. Doc. No. 30) as supplemented herein, that Singleton's request to dismiss and abandon his unexhausted ineffective assistance of counsel claims be GRANTED and that his unexhausted ineffective assistance of counsel claims be voluntarily DISMISSED WITH PREJUDICE: (1) counsel failed to investigate the basis for Norman's testimony or expose the plea deal between the State and Norman; (2) counsel allowed Singleton to be wrongfully convicted; (3) counsel failed to professionally perform his duty to represent Singleton; (4) his failure to investigate and perform caused a meaningless appeal; (5) counsel failed to timely file pretrial motions for discovery and impeachment material related to Roussell and Norman and counsel failed to timely file for production of the initial police report; (6) counsel failed to adequately investigate by obtaining Norman's pretrial statement and the police report; and (7) counsel failed to file a pretrial motion to suppress Norman's perjured statements.

It is further RECOMMENDED that, based on the Report and Recommendation (Rec. Doc. No. 30) as supplemented herein, Singleton's § 2254 claims asserting that counsel was ineffective for failure to file a motion to reconsider the sentence, that the State withheld exculpatory Brady and impeachment evidence, and that the State knowingly used the perjured testimony be DENIED and DISMISSED WITH PREJUDICE as procedurally barred.

A party's failure to file written objections to the proposed findings, conclusions, and recommendation in a magistrate judge's report and recommendation within fourteen (14) 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, provided that the party has been served with notice that such consequences will result from a failure to object. Douglass v. United Servs. Auto. Assoc., 79 F.3d 1415, 1430 (5th Cir. 1996).13