MICHAEL B. NORTH, Magistrate Judge.
This matter was referred to the undersigned United States Magistrate Judge to conduct a hearing, including an evidentiary hearing, if necessary, and to submit proposed findings and recommendations for disposition pursuant to 28 U.S.C. § 636(b)(1)(B) and (C), and as applicable, Rule 8(b) of the Rules Governing Section 2254 Cases in the United States District Courts. Upon review of the entire record, the Court has determined that this matter can be disposed of without an evidentiary hearing. See 28 U.S.C. § 2254(e)(2). For the following reasons,
Petitioner, Algie Spears, is a convicted inmate currently incarcerated at the Louisiana State Penitentiary in Angola, Louisiana. Spears was charged with unauthorized entry of an inhabited dwelling.
Spears also appealed the conviction, asserting that the evidence was insufficient to support a conviction for unauthorized entry of an inhabited dwelling. On September 13, 2013, the Louisiana First Circuit Court of Appeal affirmed the judgment.
On or about March 23, 2015, Spears submitted an application for post-conviction relief to the state district court.
On November 14, 2016, Spears filed his federal application for habeas corpus relief.
The following facts were established at trial and summarized by the Louisiana First Circuit Court of Appeal:
Title 28 U.S.C. § 2254(d) (1) and (2), as amended by The Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), provides the applicable standards of review for pure questions of fact, pure questions of law, and mixed questions of both. A state court's purely factual determinations are presumed to be correct and a federal court will give deference to the state court's decision unless it "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) (2); see also 28 U.S.C. § 2254(e) (1) ("In a proceeding instituted by an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State court, a determination of a factual issue made by a State court shall be presumed to be correct. The applicant shall have the burden of rebutting the presumption of correctness by clear and convincing evidence."). With respect to a state court's determination of pure questions of law or mixed questions of law and fact, a federal court must defer to the decision on the merits of such a claim unless that decision "was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States." 28 U.S.C. § 2254(d)(1).
The "`contrary to' and `unreasonable application' clauses [of § 2254(d)(1)] have independent meaning." Bell v. Cone, 535 U.S. 685, 694 (2002). A state court decision is "contrary to" clearly established precedent if the state court applies a rule that contradicts the governing law set forth in the United States Supreme Court's cases or if the state court confronts a set of facts that are materially indistinguishable from a decision of the United States Supreme Court and nevertheless arrives at a result different from United States Supreme Court precedent. Williams v. Taylor, 529 U.S. 362, 405-06 (2000); Wooten v. Thaler, 598 F.3d 215, 218 (5th Cir.), cert. denied, 131 S.Ct. 294 (2010). An "unreasonable application" of [United States Supreme Court] precedent occurs when a state court "identifies the correct governing legal rule . . . but unreasonably applies it to the facts of the particular state prisoner's case." Williams, 529 U.S. at 407-08; White v. Woodall, 134 S.Ct. 1697, 1706 (2014).
It is well-established that "an unreasonable application is different from an incorrect one." Bell, 535 U.S. at 694. A state court's merely incorrect application of Supreme Court precedent simply does not warrant habeas relief. Puckett v. Epps, 641 F.3d 657, 663 (5th Cir.2011) ("Importantly, `unreasonable' is not the same as `erroneous' or Incorrect'; an incorrect application of the law by a state court will nonetheless be affirmed if it is not simultaneously unreasonable."). "[E]ven a strong case for relief does not mean the state court's contrary conclusion was unreasonable" under the AEDPA. Harrington v. Richter, 562 U.S. 86, 102 (2011). Section 2254(d) preserves authority to issue the writ in cases where there is "no possibility fairminded jurists could disagree that the state court's decision conflicts with [United States Supreme Court] precedents." Harrington, 562 U.S. at 102 (emphasis added); see also Renico v. Lett, 559 U.S. 766, 130 S.Ct. 1855, 1866 (2010) ("AEDPA prevents defendants—and federal courts—from using federal habeas corpus review as a vehicle to second-guess the reasonable decisions of state courts.").
Spears claims that the trial court improperly denied his motion to suppress in violation of the Fourth Amendment. He argues that his subsequent identification by the victim resulted from Detective Trey Mahon's initial unlawful traffic stop. The record reflects that officers arrived at the scene within minutes of the distress call. Detective Mahon stopped a vehicle near the victim's residence as it was driving away without headlights. After speaking with the driver, he allowed him to leave. Detective Mahon testified that he realized after hearing the victim describe the intruder that the individual he had stopped earlier near the residence matched the victim's description. Officers were quickly dispatched to locate the suspect from the vehicle stop and returned Spears to the scene where the victim positively identified him as the man she saw in her residence that evening.
Defense counsel moved to suppress the statements and identification and a pretrial hearing was held the morning of trial.
As the State correctly notes in its response, Fourth Amendment violation claims generally are not cognizable on federal habeas review. In Stone v. Powell, 428 U.S. 465 (1976), the United States Supreme Court held: "[W]here the State has provided an opportunity for full and fair litigation of a Fourth Amendment claim, a state prisoner may not be granted federal habeas corpus relief on the ground that evidence obtained in an unconstitutional search and seizure was introduced at trial." Id. at 494 (footnote omitted); see also Janecka v. Cockrell, 301 F.3d 316, 320 (5th Cir. 2002). The Stone bar applies even if the state court rulings regarding the Fourth Amendment claims were in fact erroneous. Swicegood v. Alabama, 577 F.2d 1322, 1324 (5th Cir. 1978).
A "full and fair" hearing as contemplated by Stone refers to thoughtful consideration by the factfinder and at least the availability of meaningful appellate review by a higher state court. Davis v. Blackburn, 803 F.2d 807, 808 (5th Cir. 1986); O'Berry v. Wainwright, 546 F.2d 1204, 1213 (5th Cir. 1977). The "opportunity" for full and fair litigation exists as long as the state provides the petitioner with processes by which he can obtain full and fair consideration, without regard to whether he actually takes advantage of those processes. Caver v. Alabama, 577 F.2d 1188, 1192 (5th Cir. 1978) ("An `opportunity for full and fair litigation' means just that: an opportunity."); see also Janecka, 301 F.3d at 320.
In the instant case, Spears asserted a Fourth Amendment claim in the state district court, where he was afforded an evidentiary hearing. He had the opportunity to raise the claim on direct appeal but did not; however, he later raised the claim on collateral review before all three state courts, including the Louisiana Supreme Court. Because he was afforded a full and fair opportunity to litigate his Fourth Amendment claim in the state courts, Stone bars this Court from considering that claim.
Spears's separate challenge to the alleged suggestive and unreliable "show-up" identification used against him at trial does not present a Fourth Amendment issue, but rather, a cognizable due-process claim. He challenges the accuracy of the victim's physical description of the intruder and the inherently suggestive nature of the show-up identification where he argues he was the sole suspect viewed in handcuffs and in police custody. The state courts denied the claim on collateral review.
To prevail on his claim that the victim's identification testimony derived from a suggestive identification procedure, a petitioner must show that the identification procedure was "so unnecessarily suggestive and conductive to irreparable mistaken identification that he was denied due process of law." Neil v. Biggers, 409 U.S. 188, 196 (1972) (quoting Stovall v. Denno, 388 U.S. 293, 301-02, 87 S.Ct. 1967, 18 L.Ed.2d 1199 (1967)); Manson v. Brathwaite, 432 U.S. 98, 114 (1977). While initially it must be determined if the pretrial identification is impermissibly suggestive, even if a pretrial identification procedure is suggestive, a reviewing court will look to the totality of the circumstances in order to determine if the identification is nevertheless reliable. Biggers, 409 U.S. at 199-20. In making that determination, the Court considers the following five factors:
Brathwaite, 432 U.S. at 114; Biggers, 409 U.S. at 199-200. This analysis involves a mixed question of law and fact. Livingston v. Johnson, 107 F.3d 297, 309 (5th Cir. 1997). This Court must therefore determine whether the state court's denial of the claim was contrary to, or an unreasonable application of, clearly established federal law. 28 U.S.C. § 2254(d)(1); Coleman v. Quarterman, 456 F.3d 537, 544 (5th Cir. 2006); Walker v. Vannoy, Civ. Action No. 15-6809, 2016 WL 7485675, at*11 (E.D. La. Sept. 9, 2016), adopted, 2016 WL 7476334 (E.D. La. Dec. 29, 2016). The state court's ruling in this case was reasonable under controlling Supreme Court law in light of the record evidence presented.
At the hearing on the motion to suppress, the victim testified that all of the lights in the house were on when she saw Spears in her kitchen. She made direct eye contact with him from a short distance away and was able to describe distinctive physical features to police, i.e., "bald head, sunken eyes, belly, tallish."
Even at trial, the victim remained certain about her description of the intruder:
The victim expressed her certainty when she identified Spears at trial:
Spears disputes the accuracy of the victim's identification because she described him during the suppression hearing as "like my height, tallish." He argues that he is actually shorter than the victim. He claims she also described him as a "black man," which could mean either race or physical skin tone, which was not explored. However, even if minor inconsistencies existed, the record in this case was clear. The victim had a good opportunity to view the intruder, sufficient to recall his physical features in detail and with absolute clarity and provide an accurate description to police that substantially matched Spears's physical attributes. In fact, the victim in this case had given that detailed description of the intruder well before the show-up identification. The victim was able to make a positive identification within an hour and a half of the incident.
Thus, notwithstanding the fact that a show-up identification procedure may be considered inherently suggestive, the record in this case established that the victim's identification was extremely reliable. See e.g., United States v. Portis, 16-134, 2017 WL 2311734 (E.D. La. May 26, 2017). The record discloses no substantial likelihood of irreparable misidentification. A review of the law and the record in this case demonstrates that the state court's decision denying this post-conviction claim was neither contrary to, nor an unreasonable application of, clearly established federal law. Accordingly, Spears is not entitled to relief on this claim.
Spears first claims that trial counsel was ineffective because he did not object during the multiple-offender adjudication when the State failed to establish that the 10-year cleansing period had not elapsed between the 1999 second-degree battery conviction and the instant offense.
The Louisiana Supreme Court denied relief, stating:
The State argues that given the state district court's reasoning incorporated by the Louisiana Supreme Court, the instant claim is barred as repetitive under Louisiana Code of Criminal Procedure articles 930.4(D) and (E), and non-cognizable under article 930.3 and State v. Melinie v. State, 93-1380 (La. 1/12/96), 665 So.2d 1172. The Court disagrees with the State's rationale. The claim at issue is one of ineffective assistance of counsel during the habitual-offender adjudication.
The United States Supreme Court has established a two-pronged test for evaluating claims of ineffective assistance of counsel. Specifically, a petitioner seeking relief must demonstrate both that counsel's performance was deficient and that the deficient performance prejudiced his defense. Strickland v. Washington, 466 U.S. 668, 697 (1984). A petitioner bears the burden of proof on such a claim and "must demonstrate, by a preponderance of the evidence, that his counsel was ineffective." Jernigan v. Collins, 980 F.2d 292, 296 (5th Cir.1993); see also Clark v. Johnson, 227 F.3d 273, 284 (5th Cir.2000). If a court finds that a petitioner has made an insufficient showing as to either of the two prongs of inquiry, Le, deficient performance or actual prejudice, it may dispose of the ineffective assistance claim without addressing the other prong. Strickland, 466 U.S. at 697.
To prevail on the deficiency prong of the Strickland test, a petitioner must demonstrate that counsel's conduct fails to meet the constitutional minimum guaranteed by the Sixth Amendment. See Styron v. Johnson, 262 F.3d 438, 450 (5th Cir.2001). "Counsel's performance is deficient if it falls below an objective standard of reasonableness." Little v. Johnson, 162 F.3d 855, 860 (5th Cir.1998). Analysis of counsel's performance must take into account the reasonableness of counsel's actions in light of all the circumstances. See Strickland, 466 U.S. at 689. "[I]t is necessary to `judge . . . counsel's challenged conduct on the facts of the particular case, viewed as of the time of counsel's conduct.'" Lockhart v. Fretwell, 506 U.S. 364, 371 (1993) (quoting Strickland, 466 U.S. at 690). A petitioner must overcome a strong presumption that the conduct of his counsel falls within a wide range of reasonable representation. See Crockett v. McCotter, 796 F.2d 787, 791 (5th Cir.1986); Mattheson v. King, 751 F.2d 1432, 1441 (5th Cir.1985).
To prevail on the prejudice prong of the Strickland test, a petitioner "must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland, 466 U.S. at 694. In this context, a reasonable probability is "a probability sufficient to undermine confidence in the outcome." Id. In making a determination as to whether prejudice occurred, courts must review the record to determine "the relative role that the alleged trial errors played in the total context of [the] trial." Crockett, 796 F.2d at 793.
Because the state courts rejected Spears's ineffective-assistance-of-counsel claims on the merits and because such claims present a mixed question of law and fact, this Court must defer to the state court decision unless it was "contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States." 28 U.S.C. § 2254(d) (1); Moore v. Cockrell, 313 F.3d 880, 881 (5th Cir.2002). In fact, the United States Supreme Court has held that, under the AEDPA, federal habeas corpus review of ineffective-assistance claims must be "doubly deferential" in order to afford "both the state court and the defense attorney the benefit of the doubt." Burt v. Titlow, 134 S.Ct. 10, 13 (2013) (quoting Cullen v. Pinholster, 563 U.S. at 190).
The substantive claim underlying the ineffective-assistance claim (namely, failure by the State to prove the applicable cleansing period for the second-degree battery predicate offense) was uniformly rejected by the state courts. The issue was reviewed and rejected by the state district court and state appellate court on collateral review of Spears's motion to correct an illegal sentence.
The record therefore shows that counsel raised an objection in writing on the stated ground advanced by Spears, but the motion was unsuccessful. Counsel's performance cannot be deemed constitutionally deficient simply because he was unsuccessful. See Martinez v. Dretke, 99 F. App'x 538, 543 (5th Cir. 2004). No deficient performance has been shown under the circumstances. Certainly nothing in the record indicates that a more vigorous performance by defense counsel at the multiple-offender hearing could have persuaded the trial court to grant the motion to quash the multiple-offender bill or exclude the 1999 predicate offense for lack of sufficient evidence of the applicable cleansing period.
Next, Spears argues that appellate counsel was ineffective for not assigning as error for appellate review two grounds in particular, namely "the trial court's abuse of discretion in not granting the motion to suppress the lack of probable cause" and "the trial court's abuse of discretion in not granting the motion to suppress the identification."
The Strickland standard also applies to claims of ineffective assistance of appellate counsel. Duhamel v. Collins, 955 F.2d 962, 967 (5th Cir. 1992) (citing Heath v. Jones, 941 F.2d 1126, 1130 (11th Cir. 1991)). In reviewing claims of ineffective assistance of appellate counsel, the Supreme Court of the United States has expressly observed that appellate counsel "need not advance every argument, regardless of merit, urged by the appellant." Evitts v. Lucey, 469 U.S. 387, 394 (1985). Failing to raise every meritorious claim on appeal does not make counsel deficient. Green v. Johnson, 116 F.3d 1115, 1125-26 (5th Cir. 1997) (citing Ellis v. Lynaugh, 873 F.2d 830, 840 (5th Cir. 1989)). When alleging ineffective assistance of appellate counsel, a petitioner "must show that the neglected claim would have had a reasonable probability of success on appeal." Duhamel, 955 F.2d at 967. Courts give great deference to professional appellate strategy for "winnowing out weaker arguments on appeal and focusing on one central issue if possible, and at most a few key issues.["] Jones v. Barnes, 463 U.S. 745 (1983). This is true even where the weaker arguments have merit. Id. at 751-52. The applicable test is whether the omitted issue was "clearly stronger" than the issue [s] actually presented on appeal. See, e.g., Diaz v. Quarterman, 228 F. App'x 417, 427 (5th Cir. 2007); see also Smith v. Robbins, 528 U.S. 259, 288, 120 S.Ct. 746, 145 L.Ed.2d 756 (2000).
Appellate counsel in this case determined that it was not in Spears's best interest to raise these claims. Instead, counsel reasonably chose to focus solely on the sufficiency of the evidence to support the conviction. Spears cannot show that the two omitted claims were clearly stronger than the issue actually raised on appeal. For the reasons previously discussed in this report, the claim that the identification was impermissibly suggestive is meritless. His claim involving the denial of the motion to suppress is likewise weak.
As grounds for pretrial suppression, he argued that Detective Mahon had no probable cause to conduct the traffic stop from which he obtained personal information from Spears that ultimately led to the positive show-up identification by the victim. The trial court flatly rejected the argument, stating:
For an investigatory traffic stop, law enforcement officers need only have reasonable suspicion of criminal activity in order to comply with the Fourth Amendment. Terry v. Ohio, 392 U.S. 1 (1968). Reasonable suspicion is less demanding than probable cause. United States. v. Sokolow, 490 U.S. 1, 7 (1989)). A traffic stop is authorized when an officer observes a traffic violation, such as driving without headlights at night. Whren v. United States, 517 U.S. 806 (1996); LSA-R.S. 32:301(A)(1); State v. Rimmer, 16-649, 2017 WL 2198012 (La. App. 5 Cir. 5/17/17) (finding that defendant's driving the truck at night without illuminated lights provided the officer with an objective basis, or probable cause, to effect the stop of the vehicle).
Detective Mahon testified that Spears's vehicle raised suspicion because of the close geographical and temporal proximity to the crime and the fact that he was driving off without any headlights.
For the foregoing reasons, Spears has not demonstrated that the state court's decision rejecting these ineffective-assistance claims was contrary to, or involved an unreasonable application of, clearly established federal law, as determined by the Supreme Court of the United States.
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. 28 U.S.C. § 636(b)(1); Douglass v. United Services Auto. Ass'n, 79 F.3d 1415, 1430 (5th Cir. 1996) (en banc).
