RICHARD L. BOURGEOIS, Jr., Magistrate Judge.
This matter is before the Court on the petitioner's application for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. The petitioner, Brandon Brue, challenges his convictions, entered in 2009 in the Eighteenth Judicial District Court for the Parish of Pointe Coupee, State of Louisiana, on one count of second degree murder, one count of attempted second degree murder, and one count of possession of a firearm by a convicted felon. The petitioner contends (1) that the trial court erred in allowing the admission into evidence of other crimes evidence, (2) that the trial court erred in allowing into evidence a videotaped hearsay statement by a witness who refused to testify at trial, (3) that the trial court erred in allowing into evidence a written hearsay statement by the deceased victim, (4) that the evidence was insufficient to support the convictions, (5) that his right to confrontation was violated when the trial court allowed into evidence out-of-court statements by a witness who was not subject to cross-examination, (6) that he was denied the right to testify at his trial, (7) that he was provided with ineffective assistance at trial when his attorney prevented the petitioner from testifying at trial, failed to investigate potential alibi witnesses, failed to present a defense, failed to employ compulsory process to procure the presence of witnesses at trial, and failed to present an alibi defense, and (8) that the cumulative effect of errors at trial deprived him of fundamental fairness.
After a trial by jury conducted in July, 2009, the petitioner was found guilty of having committed the second degree murder of his estranged wife, Yarnell Brue, and the attempted second degree murder of a man who was visiting his wife, Christopher Gremillion, on June 9, 2007. In addition, the petitioner was convicted of being a felon in possession of a firearm in violation of state law. The petitioner was sentenced on August 21, 2009, to life imprisonment in connection with the offense of second degree murder, to fifty years imprisonment in connection with the offense of attempted second degree murder, and to fifteen years imprisonment in connection with the felon-in-possession charge, all without the benefit of probation, parole or suspension of sentence. The court further directed that the sentences were to be served consecutively. The petitioner thereafter appealed his convictions, asserting, through an attorney appointed by the Louisiana Appellate Project, the claims numbered (1) through (4) above. The petitioner thereafter moved for leave to file a supplemental pro se appellate brief, and he was granted until March 26, 2010, within which to do so. The petitioner thereafter retained the services of a private attorney, and the new attorney requested and was granted until April 7, 2010, within which to file a supplemental appellate brief. Notwithstanding, the supplemental appellate brief was not in fact received in the First Circuit court until April 9, 2010. On May 7, 2010, the petitioner's convictions and sentences were affirmed by the Louisiana Court of Appeal for the First Circuit. See State v. Brue, 39 So.3d 848, 2010 WL 1838383 (La. App. 1
On or about June 7, 2010, the petitioner submitted an application for supervisory review before the Louisiana Supreme Court on direct appeal. In that application, the petitioner presented only the claims numbered (1)-(3) and (5), above. The petitioner notably failed to present his fourth claim regarding the sufficiency of the evidence to support his convictions. On January 7, 2011, the petitioner's application for supervisory review in the Louisiana Supreme Court was denied without comment. State v. Brue, 52 So.3d 883 (La. 2011).
On or about November 14, 2011, the petitioner filed an application for post-conviction relief in the state district court, asserting the claims numbered (6) through (8), above. Pursuant to Order dated December 1, 2011, the petitioner's application was denied in the trial court for procedural reasons. Specifically, the state trial judge ruled that the petitioner's claims should be denied because "he could have and should have raised these issues on appeal [and] [h]e knowingly failed to do so." Whereas the petitioner sought further review in the state appellate courts relative to that determination, his applications before those courts were denied, on March 12 and December 14, 2012, respectively. See State ex rel. Brue v. State, 104 So.3d 430 (La. 2012). A subsequent supplemental post-conviction relief application, wherein the petitioner sought further review of his ineffective-assistance-of-counsel claim based upon a purported newly obtained affidavit from his trial attorney, was also rejected in the state district and appellate courts, with the Louisiana First Circuit court denying consideration thereof on December 17, 2012, and with the Louisiana Supreme Court denying consideration thereon of May 31, 2013, as "repetitive." See State ex rel. Brue v. State, 118 So.3d 390 (La. 2013).
On or about January 25, 2013, the petitioner filed the instant application for habeas corpus relief in this Court. The State asserts that a deferential review of the state court proceedings and findings, as mandated by 28 U.S.C. § 2254(d) and (e), compels the conclusion that the petitioner's claims must be rejected.
As accurately summarized by the Louisiana First Circuit appellate court in its written opinion on direct appeal:
It appears from the record that the petitioner left the area shortly after the incident and was not apprehended until approximately 2½ months later, in late August, 2007, when United States fugitive task force officials found and arrested him in Dallas, Texas.
In attacking his convictions on direct appeal, the petitioner did not — and does not now — argue that the shooting did not occur as stated above. Instead, the petitioner asserted that the State failed to present competent legal evidence sufficient to identify him as the person who committed the offenses charged. Essentially, the petitioner contended that his convictions were the result of erroneous evidentiary rulings and that, after discounting the highly prejudicial and inflammatory evidence that should not have been presented before the jury, there was insufficient evidence to convict him of those offenses. In addition, in his post-conviction relief proceedings, the petitioner argued that he was denied his constitutional right to testify on his own behalf at trial, that he was provided with ineffective assistance of counsel in several respects, and that the cumulative effect of the errors committed at trial deprived him of a fundamentally fair proceeding.
The evidence adduced at trial reflects that no murder weapon was recovered and that there was no forensic evidence that definitively linked the petitioner to the commission of the offenses. Instead, the principal evidence presented before the jury that placed the petitioner at the scene was a videotaped recording of a statement given by the surviving victim, Christopher Gremillion, to police investigators a day or so after the shooting. In that recorded statement, Gremillion identified the petitioner as the person who had shot both him and Yarnell Brue on June 7, 2009. Gremillion was thereafter present at the petitioner's trial and was called to testify for the prosecution. On the witness stand, however, although Gremillion testified under oath that the statements of fact made by him in the recorded statement were truthfully given at the time, he was unwilling to testify further about the events of the shooting. As a result, the prosecution requested that the videotaped statement be played before the jury and, over the objection of the defense, the recorded statement identifying the petitioner as the shooter was played. Upon cross-examination, the petitioner's defense attorney made no attempt to ask any questions of the witness but, upon the witness' assertion that he did not want to testify, released the witness without further objection and without any attempt to compel a response.
In addition to the foregoing, evidence was introduced at trial that, at most, indirectly implicated the petitioner in the commission of the offenses. According to the petitioner, this evidence, described below, was the result of three erroneous evidentiary rulings made by the state trial court that resulted in prejudicial evidence being presented before the jury.
First, over objection, the petitioner's parole officer and two witnesses were called by the prosecution to testify regarding separate and unrelated incidents when the petitioner allegedly discharged firearms in a threatening manner after being involved in disputes with other people. Specifically, the petitioner's parole officer and witness Cody Wells testified regarding an incident that occurred in July, 2005, when the petitioner allegedly discharged a firearm in Wells' direction after an altercation. According to the petitioner's parole officer, this incident resulted in criminal charges being levied against the petitioner and in the petitioner's subsequent plea of guilty to the offense of illegal use of a weapon or dangerous instrumentality. In addition, another witness, Revious Harrington, was called to testify that on one occasion in January, 2005, after a verbal disagreement, the petitioner discharged a handgun — into the air the witness believes, not at the witness — as the witness turned away from the altercation. Whereas the defense argued, in a pretrial hearing conducted pursuant to state law, see State v. Prieur, 277 So.2d 126 (La. 1973), that this evidence of other crimes was essentially irrelevant to the offenses involved in the instant case and that the unrelated incidents were presented for no other purpose than to impermissibly portray the petitioner as a person of bad character, the state court accepted the prosecution's argument that the evidence was independently admissible to show the petitioner's modus operandi, i.e., to show that the petitioner had a method or system of confronting people with whom he was having disputes by resorting to firearms. In conjunction with the testimony of both Wells and Harrington, the trial court provided a limiting instruction to the jury, advising that "[t]he sole purpose for which such evidence may be considered is whether it tends to show intent, system, motive, or a mode of operation.... [and] [y]ou may not find him guilty of this offense merely because he may have committed another offense." See Tr. Transcript at pp. 155 and 161.
Also over objection, evidence was introduced at trial regarding an alleged incident that occurred approximately a week before the shooting in this case, at which time the deceased victim contacted the police to lodge a complaint against the petitioner. The court allowed the police officer who was charged with investigating the complaint to testify that the deceased victim had made the complaint on June 2, 2007, seven days before the shooting of June 9, 2007, and was supposed to come in and provide a statement about the incident but did not in fact do so. Instead, the officer testified that he subsequently received a written statement allegedly found in the deceased's vehicle after the shooting, which statement was brought to him by the deceased's mother. Whereas the investigating officer provided no factual details regarding the nature of the statement and complaint, the deceased's mother was allowed to read the victim's statement and to identify the handwriting as being that of her daughter. That statement described threats that were purportedly made to the victim by the petitioner, the victim's fear for her safety, and an incident when the petitioner purportedly came to the deceased's residence in her absence, ransacked her belongings, cut the cords to her electronic devices, and placed her clothes in a tub and covered them with bleach and lighter fluid. In connection with the reading of the referenced statement, the trial judge provided a similar limiting instruction to the jury in connection therewith. Tr. Transcript at pp. 151-52.
The only other evidence of note introduced at the trial was the testimony of Jim Sangsvang regarding the apprehension of the petitioner by federal fugitive task force law enforcement officials in Dallas 2½ months after the shooting, and a neighbor, Sheena Joseph, who testified that she heard shots on the night of the incident and looked out her window to observe a man running from the decedent's home, attempting to pull on a shirt as he ran. The neighbor further testified that she telephoned 911 and again looked out her window, at which time she observed a second man on the porch of the decedent's home. The witness testified that the second man, who she believed to be a different person than the first person she had observed running from the house, re-entered the house from the porch, after which she heard several additional shots. Although the witness was familiar with the petitioner, she was unable to positively identify either of the men she observed as the petitioner.
As noted above, the plaintiff asserted on direct appeal before the Louisiana First Circuit Court of Appeal that the evidence was insufficient to support his convictions. Notwithstanding, the petitioner thereafter failed to present this claim when he sought supervisory review before the Louisiana Supreme Court after the convictions and sentences were affirmed by the First Circuit appellate court. As a result, the Louisiana Supreme Court was not afforded an opportunity to review the petitioner's sufficiency-of-the-evidence claim.
Under 28 U.S.C. § 2254(b) and (c), a claimant seeking habeas corpus relief in federal court is required first to exhaust his claims by presenting them for review before the courts of the state in which he is confined. The exhaustion requirement is satisfied only when a petitioner's claims have been properly presented to the state's highest court, either on direct review or on post-conviction attack. Bufalino v. Reno, 613 F.2d 568, 570 (5
A district court may notice on its own motion a petitioner's failure to exhaust state court remedies. McGee v. Estelle, 722 F.2d 1206, 1214 (5
A habeas petitioner who has failed to properly present a federal constitutional claim to the state courts may nonetheless be considered to have "technically exhausted" his state remedies if the state courts are no longer available for a review of the claim because of a procedural bar. See Busby v. Dretke, 359 F.3d 708, 724 (5
In the instant case, the petitioner has clearly failed to exhaust his sufficiency-of-the-evidence claim before the Louisiana state courts. Specifically, he has never presented this claim before the Louisiana Supreme Court, either on direct review or through post-conviction review proceedings. If the petitioner were to now assert this claim before the state courts in an application for post-conviction relief, the state court would unquestionably reject consideration of same as procedurally barred in reliance upon article 930.8 of the Louisiana Code of Criminal Procedure, which article provides a two-year limitations period for the filing of post-conviction review applications in the state court. Article 930.8 has been found to be an independent and adequate state ground for rejecting consideration of post-conviction relief claims, and the federal courts have relied upon this statute in finding claims to be technically exhausted and procedurally defaulted. See, e.g., Williams v. Department of Corrections, 444 Fed. App. 833, 834 (5
The petitioner can overcome the preclusion established by a procedural default only by demonstrating (1) "cause for the default and actual prejudice as a result of the alleged violation of federal law," or (2) that "failure to consider the claims will result in a fundamental miscarriage of justice." Coleman v. Thompson, supra, 501 U.S. at 750; Moore v. Roberts, 83 F.3d 699, 702 (5
In his initial appellate brief filed before the Louisiana Court of Appeal for the First Circuit, the petitioner presented, as Assignments of Error Nos. 2 and 3, respectively, that "[t]he trial court erred in allowing the admission of hearsay in the form of videotaped testimony" from Christopher Gremillion and "[t]he trial court erred in allowing the admission of Yarnell Brue's written statement." As to both assignments, the petitioner's brief principally argued that the statements were inadmissible hearsay evidence under Louisiana law. Further, the appellate brief also asserted — but only as to the Gremillion statement — that the admission of the referenced videotaped statement violated the petitioner's right to confrontation under the United States Constitution. In thereafter addressing these two assignments of error, the Louisiana Court of Appeal acknowledged and addressed the Confrontation Clause issue as to Gremillion's statement, but did not do so as to the written statement by the decedent. Accordingly, this Court concludes that a review of the record reflects that, to the extent that the petitioner now seeks to assert a Confrontation Clause issue relative to the written statement of Yarnell Brue,
Whereas the petitioner in this case may wish to argue that the substance of the Confrontation Clause issue (relative to the Yarnell Brue statement) was presented to the state appellate court in his initial appellate brief, this Court disagrees. The United States Supreme Court has concluded that, in order for a claim to be considered "fairly presented," a petitioner must present the state court with "the same claim he urges upon the federal courts." Picard v. Connor, 404 U.S. 270, 276 (1971). While it is not necessary to recite "book and verse" at the state court level, the constitutional claim that the petitioner is pursuing in federal court must be the "substantial equivalent" of the claim brought in state court. Id. at 278. It is not enough that all of the facts necessary to support the federal claim were before the state court. Anderson v. Heirless, 459 U.S. 4, 6 (1982). Thus, where a petitioner raises an issue that is entirely dependent on an interpretation of state law, a state habeas court is not apprised of the possibility that such a claim may also present a federal constitutional issue. See Duncan v. Henry, 513 U.S. 364 (1995) (finding that where a petitioner raised only an issue of state evidentiary law, the petitioner had not fairly presented a claim that the evidentiary violation was also a violation of federal constitutional law). In the instant case, therefore, inasmuch as the petitioner's initial appellate brief presented an argument based entirely upon state law (as to the Yarnell Brue statement) and made no mention of the federal constitution, the Court finds that the Confrontation Clause issue was not "fairly presented" to the state courts relative to that statement.
The petitioner may also wish to argue that the Confrontation Clause issue was squarely presented to the intermediate appellate court by virtue of a supplemental appellate brief filed by his retained attorney. Again this Court does not agree. Instead, the record reflects that the petitioner's supplemental brief was not timely filed and that the arguments asserted therein were not considered or addressed by the appellate court. In this regard, the supplemental state court record reflects that after the filing of an initial appellate brief, the petitioner moved in the appellate court for leave to file a pro se appellate brief. Pursuant to Order dated February 25, 2010, the state appellate court granted the petitioner leave to file a pro se brief and granted him an extension of time, until March 26, 2010, within which to do so. The petitioner thereafter retained separate counsel, and his newly enrolled attorney moved for a second extension of time within which to file a supplemental brief. It appears from the record that this request was also granted, and that the attorney was allowed until April 7, 2010, to file a supplemental brief on behalf of the petitioner. Notwithstanding, the petitioner's retained attorney did not apparently meet this deadline. Instead, it appears from the record and from representations made by the attorney in a subsequent motion, that he merely "metered" the supplemental appellate brief at the post office in New Orleans, Louisiana, on April 7, 2010, and deposited it there on that date, admittedly "after business hours," for mailing to the appellate court. As a result, the supplemental appellate brief was not apparently received in the appellate court until, at the earliest, April 9, 2010, two days after the due date, and was not apparently considered or addressed by the appellate court. This conclusion is bolstered by the fact that the subsequent opinion of the appellate court makes no mention of the supplemental appellate brief and instead addresses only the specific arguments and the four Assignments of Error, so denominated, presented in the petitioner's initial appellate brief. In addition, it does not appear from the record that any argument was made by the petitioner's attorney that the supplemental appellate brief should be considered to be timely filed. Nor does it appear that there could be such argument. See Rule 2-13 of the Uniform Rules, Courts of Appeal for the State of Louisiana:
In the instant case, pursuant to the cited Rule, the rebuttable presumption of timely filing does not apply because the supplemental appellate brief was not received by the appellate court "on the first legal day following the expiration of the delay," and it also does not appear that any "official" showing was made, by way of postmark, cancellation stamp or the like, that the brief was timely submitted. Thus, the Court concludes that the petitioner's claim that his rights under the Confrontation Clause were violated by the admission into evidence of the purported written statement of Yarnell Brue was not fairly presented or addressed by the state appellate court and, as such, this claim is technically exhausted and procedurally defaulted before this Court.
The Court turns next to a consideration of the petitioner's claims numbered 6 through 8 in his federal habeas corpus application, i.e., his claims (1) that his Fourteenth Amendment right to due process was violated because he was denied the right to testify at trial, (2) that he was provided with ineffective assistance of counsel at trial because his attorney (a) prevented the petitioner from testifying at trial, (b) failed to investigate potential alibi witnesses, (c) failed to present a defense, (d) failed to employ compulsory process to procure the presence of witnesses at trial, and (e) failed to present an alibi defense, and (3) that cumulative errors at trial rendered the proceedings fundamentally unfair. The Court finds that these claims, although exhausted through the state courts, are subject to dismissal by reason of procedural default. Specifically, whereas the petitioner raised these claims in his application for post-conviction relief in the state trial court and in his subsequent applications for supervisory review before the state appellate courts, the claims were not substantively addressed because they were found to be procedurally barred. Specifically, in denying the petitioner's post-conviction relief application on December 1, 2011, the trial judge stated that relief was denied because the petitioner "could have and should have raised these issues on appeal ... [and] knowingly failed to do so." In making this determination, the trial court implicitly relied upon article 930.4(C) of the Louisiana Code of Criminal Procedure, which provides that claims made in an application for post-conviction relief may be rejected if they could have been raised on appeal but were not. The trial court in this case specifically rejected the petitioner's post-conviction relief claims for this reason. Thereafter, when these issues were presented before the state appellate courts on request for supervisory review, the appellate courts declined to accept review. Accordingly, it is clear that the last state court to review these issues relied on a procedural rule in denying consideration of these claims.
When a state court decision to deny post-conviction relief rests on a state procedural ground that is independent of the federal question raised by the petitioner and is adequate to support the judgment, the federal court lacks jurisdiction to review the merits of the petitioner's federal claims. Coleman v. Thompson, supra, 501 U.S. 722, 729 (1991); Moore v. Roberts, supra, 83 F.3d 699, 701 (5
Id. at 731-32, citing Rose v. Lundy, 455 U.S. 509, 518, (1982); Moore v. Roberts, supra, 83 F.3d at 703. This rule applies even if the state court addresses the substance of the claim in the alternative. Harris v. Reed, 489 U.S. 255, 264 n. 10 (1989); Fisher v. Texas, 169 F.3d 295, 300 (5
For the independent and adequate state ground doctrine to apply, the state court adjudication of a habeas petitioner's claim must have been, as here, based on a state procedural rule. Moore v. Roberts, supra, 83 F.3d at 702; Sones v. Harbett, 61 F.3d 410, 416 (5
The Court has previously determined that the petitioner has failed to show cause and actual prejudice resulting from the alleged violation of federal law or that a failure to consider his claims will result in a fundamental miscarriage of justice. Further, this Court finds that article 930.4 is regularly followed under circumstances substantially similar to that presented herein. See Parks v. Cain, 2014 WL 505329, *8 (E.D. La. Feb. 6, 2014) (applying procedural bar in connection with a claim that the petitioner was not allowed to testify at trial); Simmons v. Cain, 2008 WL 2185422 (E.D. La. May 20, 2008) (same); Jones v. Cain, 2010 WL 3312592, 5-6 (E.D. La. July 29, 2010) (applying procedural bar in connection with a claim of ineffective assistance of counsel); Smith v. Cain, 2013 WL 6669816, *4 (E.D. La. Dec. 18, 2013) (same). Even a discretionary state procedural rule can qualify as an adequate basis for barring federal habeas review. Coleman v. Cain, 2014 WL 348541, *5 (E.D. La. Jan. 31, 2014), citing Beard v. Kindler, 558 U.S. 53 (2009). As stated in Beard, supra, "a discretionary rule can be `firmly established' and `regularly followed' — even if the appropriate exercise of discretion may permit consideration of a federal claim in some cases but not in others." 558 U.S. at 60-61. Accordingly, this Court finds that the state court's express invocation of the procedural rule to dispense with a substantive consideration of the petitioner's claims asserted on post-conviction review acts as an independent and adequate bar that precludes this Court's consideration thereof.
In addition to the foregoing, and in the alternative, even were this Court to conclude, in connection with the petitioner's Claim No. 7 — regarding the alleged ineffective assistance of his trial attorney — that article 930.4 is not adequate in this context to operate as an effective procedural bar,
To satisfy the deficiency prong of the Strickland standard, the petitioner must demonstrate that his counsel's representation fell below an objective standard of reasonableness as measured by prevailing professional standards. See, e.g., Martin v. McCotter, 796 F.2d 813, 816 (5
If the petitioner satisfies the first prong of the Strickland test, his petition nonetheless must affirmatively demonstrate prejudice resulting from the alleged errors. Earvin v. Lynaugh, 860 F.2d 623, 627 (5
The above showing is one that the petitioner cannot make in the instant case. Applying the above standard to the petitioner's claim that his trial counsel was ineffective for failing to allow the petitioner to testify at trial, the petitioner provides only a conclusory assertion relative to such failure. It is recognized in this context, however, that more than a mere self-serving and conclusory assertion that an attorney prohibited his client from testifying is required before a Court can give serious consideration to such a claim. See Parks v. Cain, supra, 2014 WL 505329, at *9. It is the petitioner's burden of proof to show that he was denied this constitutional right, and "a petitioner in a habeas proceeding cannot prevail on such a claim merely by stating to the habeas court that he told his trial attorney that he wished to testify and that his attorney forbade him from taking the witness stand." See id. at 9, quoting Underwood v. Clark, 939 F.2d 473, 475-76 (7
In addition to the foregoing, the petitioner is unable to show prejudice resulting from his attorney's alleged misconduct in this regard. In other words, the petitioner has not shown a reasonable probability that, but for counsel's alleged errors, the result of the proceeding would have been different or shown a probability that the asserted errors are "sufficient to undermine confidence in the outcome." Thus, the petitioner has failed to meet his burden of proof relative to this claim.
For similar reasons, the petitioner has failed to show that it was an unreasonable strategic determination to refrain from calling the petitioner's alibi witnesses at trial. In the first place, whereas the petitioner complains that his attorney failed to investigate these witnesses or utilize compulsory process to obtain their presence at trial, the petitioner has provided the Court with an affidavit executed by his attorney wherein the attorney attests, to the contrary, that he "did investigate [the petitioner's] alibi witnesses" but "did not call [them]," contrary to the petitioner's wish for him to do so. See R. Doc. 1-5 at p. 3. Further, whereas the petitioner asserts that his attorney failed to employ compulsory process to obtain the presence of the alibi witnesses, the petitioner nonetheless concedes that the witnesses were present at trial and were available to testify if called. Thus, there was no apparent need to employ compulsory process to procure their presence. In addition, whereas the petitioner devotes considerable attention to the asserted failure of his attorney to preserve an alibi defense by failing to file a timely notice of such defense in accordance with state procedural law, the record reflects, to the contrary, that the attorney did in fact file a timely Notice of Alibi Defense, identifying each of the petitioner's proposed alibi witnesses by name and address and providing the substance of their anticipated testimony. It is instead apparent that the petitioner's attorney made the strategic determination that, on balance, the presentation of the alibi testimony may not have been beneficial, perhaps because the alibi witnesses would have testified that they and the petitioner had been "shooting dice" all night at a local residence and that the petitioner, when he allegedly learned of the shooting, had made statements that referred to yet another violent incident in which he had been involved and in which he had been shot and his "brother" killed. See affidavits of Jermaine Johnson, Chad George and Jeremiah Brue, R. Doc. 1-5 at pp. 4-6. See also State v. Williams, 2008 WL 6809584 (La. App. 1
Turning to a substantive consideration of the petitioner's remaining claims, the standard of review in this Court is that set forth in 28 U.S.C. § 2254(d). Pursuant to that statute, an application for a writ of habeas corpus shall not be granted with respect to any claim that a state court has adjudicated on the merits unless the adjudication has "(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." Relief is authorized if a state court has arrived at a conclusion contrary to that reached by the Supreme Court on a question of law or if the state court has decided a case differently than the Supreme Court on a set of materially indistinguishable facts. Williams v. Taylor, 529 U.S. 362, 413 (2000). Relief is also available if the state court has identified the correct legal principle but has unreasonably applied that principle to the facts of the petitioner's case or has reached a decision based on an unreasonable factual determination. See Montoya v. Johnson, 226 F.3d 399, 404 (5
The State contends that, applying this standard to the petitioner's claims, there is no basis for the granting of habeas relief.
Addressing the petitioner's claim regarding the alleged erroneous admission of "other crimes" evidence, the Court begins with the premise that a federal habeas court provides relief only when the petitioner is found to be "in custody pursuant to the judgment of a State court only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 254(a). Thus, a federal habeas court asks only whether a constitutional violation infected the trial. Swarthout v. Cooke, 562 U.S. 216, 219 (2011). An error in the application of state law by the trial court does not provide grounds for habeas relief. Engle v. Isaac, 456 U.S. 107, 119 (1982) ("Insofar as respondents simply challenge the correctness of the self-defense instructions under [state] law, they allege no deprivation of federal rights and may not obtain habeas relief"). Accordingly, to the extent that the foundation of the petitioner's habeas application rests on the proper interpretation and application of state jurisprudence and rules of evidence, this is not an issue within the scope of federal habeas corpus review.
In addition to the foregoing, a federal habeas review of the admission of evidence is limited to whether the state court's evidentiary rulings were sufficiently egregious to render the trial fundamentally unfair or to violate an explicit constitutional right. Peters v. Whitley, 942 F.2d 937, 940 (5
The first component of the petitioner's claim regarding the admission of other crimes evidence is that the trial court erred in admitting testimony from the petitioner's parole officer and witness Cody Wells that the petitioner had discharged a firearm at Wells in July, 2005, after an altercation between the two, and that the petitioner was thereafter convicted, upon a plea of guilty, to the felony offense of illegal use of a weapon or dangerous instrumentality. On direct appeal, the First Circuit addressed this claim and concluded that the evidence relative to this incident was not inadmissible other crimes evidence. To the contrary, inasmuch as the petitioner was jointly charged in the instant case with the offense of being a felon in possession of a firearm in violation of state law, the evidence regarding the prior felony conviction was "independently relevant because it satisfie[d] an element of LSA-R.S. 14:95.1, a previous felony conviction within ten years." This was not an erroneous determination under either state or federal law. In addition, the Court notes that the testimony provided by Wells at trial was of limited evidentiary or prejudicial value. Specifically, Wells testified that he had no specific recollection regarding the incident, other than that he had possibly been in a fight with the petitioner and had completed a police report.
The plaintiff also complains that evidence was erroneously admitted at trial regarding a second shooting incident, specifically evidence regarding an incident that allegedly occurred on January 29, 2005, when the petitioner discharged a firearm, apparently into the air, after a verbal confrontation with witness Revious Harrington. Whereas the state district court determined that this evidence was admissible based upon a finding that it tended to show a typical method of operation by the petitioner when involved in conflict, the appellate court concluded that the evidence was improperly admitted at trial. Specifically, the appellate court found that the prior shooting incident was "too remote in time," was not shown to involve the same caliber of weapon, and did not have "peculiarly distinctive features" so as to be sufficiently similar to the offenses at issue as to constitute substantive proof that the petitioner committed the offenses charged. Notwithstanding, the state appellate court further concluded, upon a review of the record in its entirety, that although improperly admitted, the evidence of the prior incident was "harmless error" and that the jury's verdicts were based principally upon the eyewitness identification of the petitioner as the shooter by Christopher Gremillion. Accordingly, the appellate court concluded that the verdicts "were surely unattributable to the erroneously introduced evidence" and that the admission of the evidence did not constitute reversible error.
Accepting the state appellate court's determination that the referenced evidence was improperly admitted under state law, this Court turns to a consideration whether the state court's determination that the error was harmless is supportable or whether the evidence should be found to have had a substantial and injurious effect or influence in determining the jury's verdicts under the standard set forth in Brecht v. Abrahamson, 507 U.S. 619 (1993). See Corwin v. Johnson, 150 F.3d 467, 476 (5
Woods v. Johnson, 75 F.3d 1017, 1026-27 (5
Applying the foregoing standard, the Court concludes that the state court did not unreasonably apply federal law in determining that the erroneous admission of Harrington's testimony was harmless error. Specifically, the state trial court provided a limiting instruction to the jury at the time of Harrington's testimony, jurors are presumed to follow such limiting instructions. See United States v. Acosta, 475 F.3d 677, 683 (5
Finally, the petitioner complains of the erroneous admission into evidence of a purported handwritten statement by the deceased in this case, Yarnell Brue, that included both evidence of other offenses allegedly committed by the accused and also evidence that was excludable as hearsay under state law. The Court will address the petitioner's arguments relative to this statement, as did the state appellate court, in addressing the petitioner's claim number 3, infra.
A review of the record reflects that the prosecution called the lone surviving eyewitness to the shooting, Christopher Gremillion, to the stand and questioned him about the events of June 9, 2007. It became immediately apparent, however, that the witness was unwilling to cooperate and was resistant to questioning. Whereas the prosecution was able to elicit from the witness that he had provided a videotaped statement to investigators a day or so after the incident, and whereas the witness further acknowledged, under oath, that the information provided in that statement had been truthful, Gremillion stated in response to further questioning that he didn't want to say anything further. After several unsuccessful attempts at questioning the witness, the prosecution requested that the videotaped statement be played for the jury. The defense objected to this request, but failed to state the nature of the contemporaneous objection.
Despite the opportunity that was then offered to the defense to cross-examine Christopher Gremillion, the defense did not avail itself of the opportunity. Instead, the totality of the exchange between the petitioner's attorney and Christopher Gremillion was as follows:
Id. at p. 140. Based upon the above recitation, the petitioner contends that his constitutional rights were violated by the admission into evidence of the referenced videotape.
Initially, as noted above, this Court does not sit to evaluate errors of state law committed by state trial courts in the application of state rules of evidence. States are entitled to enact their own rules of evidence regarding the admission of out-of-court hearsay statements, and the federal courts will not second-guess those rules unless the admission of evidence runs afoul of a specific constitutional right or otherwise renders the proceedings fundamentally unfair. In the instant case, the state appellate court determined that the recorded statement of Christopher Gremillion was admissible under article 801(D)(1)(c) of the Louisiana Code of Evidence, which provides that a statement is not hearsay under Louisiana law if the declarant testifies at the trial and is subject to cross-examination, and the statement is one of identification of a person made after perceiving the person. As stated by the appellate court in analyzing this provision:
[W]e find that the evidence in question did not constitute hearsay.
State v. Brue, supra, 2010 WL 1838383 at p. 10.
As explained above, this Court will not second-guess the state court's application of state evidentiary rules. Notwithstanding, the petitioner contends that the admission of Gremillion's videotaped statement runs afoul of the specific protections afforded by the Confrontation Clause of the United States Constitution and specifically of the United States Supreme Court's decision in Crawford v. Washington, 541 U.S. 36 (2004). In Crawford, the Supreme Court examined the history of the Confrontation Clause and concluded that a bright-line evidentiary rule was appropriate when addressing testimonial out-of-court statements made by persons who were unavailable for cross-examination, regardless of the perceived reliability of the statements or the application of traditional hearsay exceptions. Thus, the Crawford Court held that an out-of-court statement by a witness that is "testimonial" in nature is barred under the Confrontation Clause unless the witness is unavailable and the defendant has had a prior opportunity to cross-examine the witness. Id. at 54. The Crawford Court explained that the Confrontation Clause applies to witnesses who "bear testimony," and the Court explained that "testimony" is typically "[a] solemn declaration or affirmation made for the purpose of establishing or proving some fact." Id. at 51 (citation omitted). Whereas the Court was unwilling to provide a definitive definition of "testimonial," the Court opined that, for example, "[a]n accuser who makes a formal statement to government officers bears testimony in a sense that a person who makes a casual remark to an acquaintance does not." Id. The Supreme Court also listed several "core" classes of traditionally-recognized "testimonial" statements as including (1) "ex parte in-court testimony or its functional equivalent — that is, material such as affidavits, custodial examinations, prior testimony that the defendant was unable to cross-examine, or similar pretrial statements that declarants would reasonably expect to be used prosecutorially," (2) "extrajudicial statements . . . contained in formalized testimonial materials, such as affidavits, depositions, prior testimony, or confessions," (3) "statements that were made under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial," (4) "ex parte testimony at a preliminary hearing," and (5) "[s]tatements taken by police officers in the course of interrogations." Id. at 51-52. See also Davis v. Washington, 547 U.S. 813, 827 (2006) (finding that the admission of statements made to a 911 operator while events were unfolding during a domestic dispute did not violate the Confrontation Clause, but suggesting that such statements to police investigators or representatives might be considered to be "testimonial" or might become so as the circumstances develop and "objectively indicate that there is no such ongoing emergency, and that the primary purpose of the interrogation is to establish or prove past events potentially relevant to later criminal prosecution").
In the instant case, the Court will assume that the videotaped statement provided by Christopher Gremillion was "testimonial" in nature. It was provided to police officers during the course of a formal investigation into the events of June 9, 2010, and it was not elicited under emergency circumstances, such as where the perpetrator was believed to be armed and potentially at large and dangerous to the general public. Cf., Michigan v. Bryant, 562 U.S. 344, 363-64 (2011) (finding that a statement elicited from a witness by police officers while the witness lay bleeding on the ground in a parking lot was non-testimonial for purposes of a Confrontation Clause analysis because of the emergency nature of the questioning and response).
A determination by this Court that the videotaped statement provided by Christopher Gremillion was "testimonial" for purposes of the Confrontation Clause, however, does not end the inquiry. To the contrary, this Court concludes that there was no Confrontation Clause violation in this context because the witness was in fact available to testify and was in fact subject to cross-examination relative to his prior statement. The mere fact that the petitioner's attorney made no attempt whatever to elicit further responses from the witness on the stand during cross-examination does not lead to a conclusion that the witness was unavailable for purposes of the Confrontation Clause. Thus, as found by the state appellate court:
State v. Brue, supra, 2010 WL 1838383 at p. 10, n. 7. See also LSA-C.E. art. 804(A)(2), defining "unavailability" to include a witness who "[p]ersists in refusing to testify concerning the subject matter of his statement despite an order of the court to do so." Accordingly, evaluating all of the facts in this case, the Court concludes that the introduction into evidence of the videotaped statement by Christopher Gremillion — when the witness was both available and subject to cross-examination — may not be seen to have run afoul of the Confrontation Clause under Crawford and its progeny, and such claim should therefore be dismissed for lack of merit.
Finally, the Court turns to a consideration of the petitioner's contention that the trial court erred by allowing into evidence the handwritten statement purportedly written by Yarnell Brue during the week prior to the commission of the offenses in question. The mother of the decedent testified that she discovered the statement in the glove compartment of her daughter's car after the shooting and that the statement was written in her daughter's handwriting. The substance of the referenced statement read to the jury was as follows:
Tr. Transcript at pp. 150-51. In addressing this statement, the intermediate appellate court concluded that the statement had been admitted in error. Specifically, the appellate court found both that there was insufficient proof that the petitioner had committed the acts described in the statement and that the statement was inadmissible hearsay under LSA-C.E. art. 803. In reaching this conclusion, the court conducted a balancing test and concluded that "any relevancy of the evidence at issue, tending to establish Yarnell's state of mind, was outweighed by the inadmissible aspect of the statement; i.e. that it was true that the defendant intended to, and therefore did, harm Yarnell." Notwithstanding, the court further found that the admission of the statement constituted harmless error:
State v. Brue, supra, 2010 WL 1838383 at *13.
Assuming that the referenced Yarnell Brue statement was in fact admitted in error, this Court must determine whether the state court's determination that the error was harmless is supportable or whether the admission of the evidence rendered the trial fundamentally unfair. See Gonzales v. Thaler, 643 F.3d 425, 430 (5
Under Brecht v. Abrahamson, supra, "a constitutional trial error is not so harmful as to entitle a defendant to habeas relief unless there is more than a mere reasonable possibility that it contributed to the verdict." Nixon v. Epps, 405 F.3d 318, 329-30 (5
Although the issue is a close one in this case, the Court nonetheless finds that the petitioner has not established error of such magnitude as to undermine confidence in the jury's verdict and to overcome the deference afforded to the state court determination that the error in this case was harmless. The jury had before it the unequivocal and unrefuted identification of the petitioner as the shooter that was provided by Christopher Gremillion. Evidence provided by a single eyewitness may be sufficient to support a conviction for second-degree murder and, in this case, the identification was made by a person who knew the offender well and who observed the offender in a well-lit room at close range. There was no evidence that called into question the eyewitness identification or that impugned the motive or character of the eyewitness. The jury was instructed regarding the limited purpose of the Yarnell Brue statement, and the jury was also instructed that it was free to infer guilty knowledge on the part of the petitioner from the fact that he fled the area immediately after the occurrence of the shooting and evaded capture for several months, notwithstanding that an area-wide manhunt was ongoing. The Court is convinced, therefore, that the jury would have reached the same result without consideration of the Yarnell Brue statement, even though the Court readily concedes that the statement was inflammatory and had the potential to prejudice the jury against the petitioner. Such speculative effect, however, is not enough to create grave doubt in the mind of the Court regarding the validity of the jury's verdict. As noted above, the erroneous admission of prejudicial evidence "does not justify habeas relief unless the evidence played a `crucial, critical, and highly significant' role in the jury's determination." Jackson v. Johnson, 194 F.3d 641, 656 (5
An appeal may not be taken to the court of appeals from a final order in a habeas corpus proceeding "unless a circuit justice or judge issues a certificate of appealability." 28 U.S.C. § 2253(c)(1)(A). Although the petitioner has not yet filed a Notice of Appeal herein, the Court may address whether he would be entitled to a certificate of appealability. See Alexander v. Johnson, 211 F.3d 895, 898 (5
In the instant case, the Court finds that reasonable jurists would not debate the correctness of the denial of the petitioner's § 2254 claims that are based upon procedural default. As to the rejection of the petitioner's claims on substantive grounds, however, the Court finds that "jurists of reason could disagree with the district court's resolution of his constitutional claims or ... could conclude the issues presented are adequate to deserve encouragement to proceed further." Accordingly, it is appropriate that, in the event that the petitioner seeks to pursue an appeal in this case, a certificate of appealability be granted with regard to the issue whether the admission of the handwritten statement purportedly made by Yarnell Brue may be seen to have been error of such magnitude as to result in "grave doubt" that the error was not harmless in light of the totality of the evidence at trial.
It is recommended that the petitioner's application for habeas corpus relief be denied and that this proceeding be dismissed. It is further recommended that in the event that the petitioner pursues an appeal in this case, a certificate of appealability be granted with regard to the issue whether the admission of the handwritten statement purportedly made by Yarnell Brue may be seen to have been error of such magnitude as to result in "grave doubt" that the error was not harmless in light of the totality of the evidence at trial.
Please take notice that the attached Magistrate Judge's Report has been filed with the Clerk of the United States District Court.
In accordance with 28 U.S.C. § 636(b)(1), you have fourteen (14) days after being served with the attached Report to file written objections to the proposed findings of fact, conclusions of law and recommendations therein. Failure to file written objections to the proposed findings, conclusions, and recommendations within 14 days after being served will bar you, except upon grounds of plain error, from attacking on appeal the unobjected-to proposed factual findings and legal conclusions of the Magistrate Judge which have been accepted by the District Court.
ABSOLUTELY NO EXTENSION OF TIME SHALL BE GRANTED TO FILE WRITTEN OBJECTIONS TO THE MAGISTRATE JUDGE'S REPORT.
