KAREN L. HAYES, Magistrate Judge.
Pro se petitioner Timothy L. Shaw, an inmate incarcerated at the Louisiana State Penitentiary in Angola, filed the instant petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254 on May 29, 2019. [doc. #1]. Shaw challenges his sentence imposed in the Fourth Judicial District Court, Ouachita Parish. This matter has been referred to the undersigned for review, report, and recommendation in accordance with the provisions of 28 U.S.C. § 636 and the standing orders of the Court.
Because Shaw cannot show he is in custody in violation of the Constitution, laws, or treaties of the United States, or that the state courts' decisions were: (1) contrary to or involved an unreasonable application of clearly established law or (2) based on an unreasonable determination of the facts in light of the evidence presented, Shaw's Petition should be
The facts and procedural history were summarized by the Louisiana Second Circuit Court of Appeal as follows:
State v. Shaw, 51, 325 (La. App. 2 Cir. 5/17/17), 223 So.3d 607, 608-10, writ denied, 2017-1182 (La. 5/18/18), 242 So.3d 569.
Shaw appealed, claiming his sentence was unconstitutional. The appellate court confirmed the conviction, and the Louisiana Supreme Court denied writ. Id. On May 29, 2019, Shaw filed the instant application for writ of habeas corpus, alleging the following duplicitous claims: (1) the State deprived him of liberty without affording him "fair notice" of the legislatively prescribed penalty; (2) the State deprived him of "liberty without affording him due process protection to a sentence legislatively prescribed by the legislature"; (3) "the state court violated the ex post facto clause when it retroactively imposed LSA-R.S. 15:574(E)..."; (4) the State deprived him of liberty "without affording him due process protection of the Eighth Amendment's `proportionate sentence' announced in Miller [sic]"; and (5) the State deprived him of "due process when it disobeyed a substantive constitutional rule change announced by the U.S. Supreme Court."
On February 13, 2020, the State filed its response. [doc. #16]. On February 24, 2020, Shaw filed his response. [doc. #17]. Thus, the motion is ripe.
Federal courts may provide habeas corpus relief to a state prisoner in accordance with 28 U.S.C. § 2254, as amended by the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"). Under Section 2254(d), after a state court has adjudicated a prisoner's claims on the merits, an application for a writ of habeas corpus may be granted only if the petitioner shows that the adjudication:
28 U.S.C. § 2254(d)(1)-(2).
Federal review under § 2254(d)(1) is "limited to the record that was before the state court." Cullen v. Pinholster, 563 U.S. 170, 181 (2011). A decision is "contrary to" clearly established law if the state court "applies a rule that contradicts the governing law set forth in [Supreme Court] cases," or "confronts a set of facts that is materially indistinguishable from a decision of [the Supreme Court] but reaches a different result." Brown v. Payton, 544 U.S. 133, 141 (2005) (citing Williams v. Taylor, 529 U.S. 362, 405-06 (2000)). A decision involves an "unreasonable application" of clearly established law "if the state court applies [the Supreme Court's] precedents to the facts in an objectively unreasonable manner." Id. (citing Williams, 529 U.S. at 407-08). "Clearly established law" refers to "the holdings, as opposed to the dicta, of [the Supreme Court's] decisions as of the time of relevant state-court decision." Williams, 529 U.S. at 412.
Section 2254(d)(2) involves a challenge to factual determinations made by state courts. Hoffman v. Cain, 752 F.3d 430, 437 (5th Cir. 2014). Federal courts presume such determinations to be correct; however, a petitioner can rebut this presumption by clear and convincing evidence. 28 U.S.C. § 2254(1).
The AEDPA has put into place a deferential standard of review, and a federal court must defer to a state court adjudication on the merits. Valdez v. Cockrell, 274 F.3d 941, 950 (5th Cir. 2001). "As a condition for obtaining habeas corpus from a federal court, a state prisoner must show that the state court's ruling on the claim being presented in federal court was so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fair-minded disagreement." Harrington v. Richter, 562 U.S. 86, 103 (2011). An adjudication is "on the merits" when "the state court resolves the case on substantive grounds, rather than procedural grounds." Id. at 946-47. A federal court reviews de novo a claim not adjudicated on the merits in state court. Hoffman, 752 F.3d at 437.
Shaw contends there was a violation of the ex post facto clause. An ex post facto law is "a law that applies retroactively, especially in a way that negatively affects a person's rights, as by criminalizing an action that was legal when it was committed." Black's Law Dictionary 661 (9th ed. 2009). Article I, Section 10 of the United States constitution and Article I, Section 23 of the Louisiana constitution prohibit ex post facto application of the criminal law by the state. "The focus of the ex post facto inquiry is whether a new law redefines criminal conduct or increases the penalty by which the crime is punishable." State v. Williams, 00-1725 (La. 11/28/01), 800 So.2d 790; State ex rel. Olivieri v. State, 00-0172 (La. 02/21/01), 779 So.2d 735, cert. denied, 533 U.S. 936, 121 S.Ct. 2566, 150 L.Ed.2d 730 (2001).
There is no ex post facto violation here. Shaw's criminal sentence has been
Shaw claims the state court violated his due process rights when it ignored a substantive constitutional rule change issued by the Supreme Court. This is mistaken. In Miller, the Supreme Court held that a mandatory life sentence without parole violates the Eighth Amendment's prohibition on `cruel and unusual' punishment if the offender was under 18 years of age at the time the offense was committed. See Miller v. Alabama, 567 U.S. 460 (2012). Miller did not prohibit a court's ability to impose a life sentence without parole, but the court must consider how children are different, and how those differences counsel against irrevocably sentencing them to a lifetime in prison. Id. at 480.
Shaw's sentence was amended to include the possibility of parole. Thus, his sentence is not unconstitutional under Miller. In fact, in Montgomery v. Louisiana, the Supreme Court said a state may remedy a Miller violation by permitting juvenile homicide offenders to be considered for parole, rather than by resentencing them. 136 S.Ct. 718, 736 (2016). The court further noted that allowing those offenders to be considered for parole ensures that juveniles whose crimes reflected only transient immaturity—and who have since matured—will not be forced to serve a disproportionate sentence in violation of the Eighth Amendment. Id. Thus, Shaw's sentence is in accord with federal law and this claim can be dismissed.
Shaw argues he was denied fair notice when he was sentenced to life imprisonment with eligibility for parole under La. R.S. 15:574.4(E) because the sentence was not available at the time he committed the offense in 1993. He maintains "fair notice" and due process prevent the trial court from sentencing him to a sentence that was different than the one he could have expected at the time he committed the offense in 1993, when the only sentence available under La. R.S. 14:30.1 was life imprisonment without eligibility for parole.
In reviewing this claim, the Second Circuit Court of Appeal said:
Louisiana federal and state courts have routinely rejected this "fair notice" argument when it has been raised by other petitioners. See, e.g., Jackson v. Vannoy, Civil Action No. 5:19-CV-665-P, 209 WL 4145727 (W.D. La. Jul. 11, 2019); State v. Jackson, 51, 527 (La. App. 2 Cir. 8/9/17); 243 So.3d 1093, 1099, writ denied 17-1540 (La. 5/25/18), 243 So.3d 565; State v. Harper, 243 So.3d 1084, 51, 539 (La. App. 2 Cir. 8/9/2017); 243 So.3d 1084, 1088-89. The undersigned agrees. The elements required for proof of second-degree murder have not changed since Looney committed the crime and the sentence for committing the crime remains life imprisonment at hard labor. The only change is that the trial court can now allow for the criminal defendant to have the possibility of parole. After the Supreme Court held in Montgomery v. Louisiana that Miller v. Alabama applied retroactively, Looney was provided counsel for a sentencing hearing on August 9, 2016. He was informed the sentencing court could only reconsider the sentence, not the verdict.
As to his allegations of due process violations, it was unclear how Shaw's due process rights were violated. To comply with Miller and Montgomery, the trial court afforded him counsel for a hearing at which his sentence was amended. Procedural due process requires government officials to follow fair procedures before depriving a person of life, liberty, or property. The procedures followed in amending Shaw's sentence were fair. He was afforded counsel, received a hearing, and had his sentence revised in accord with Miller and Montgomery. There was no deprivation of any constitutional rights. Thus, he cannot show that the state court's decision regarding fair notice and due process was contrary to or involved an unreasonable application of Supreme Court law.
Finally, Shaw appears to argue, as a result of Miller and Montgomery, he should have been prosecuted for a lesser crime. [doc. #17, pp. 17-21]. Such arguments are not cognizable at this point. His conviction for second-degree murder was finalized long ago, and any argument that he should have been prosecuted for a lesser crime because of his youth is moot.
Because Shaw cannot show he is in custody in violation of the Constitution, laws, or treaties of the United States, or that the state courts' decisions were contrary to or involved an unreasonable application of clearly established federal law or were based on an unreasonable determination of the facts in light of the evidence presented,
Under the provisions of 28 U.S.C. 636(b)(1)(C) and Fed. R. Civ. P 72(b), parties aggrieved by this Report and Recommendation have
Pursuant to Rule 11(a) of the Rules Governing Section 2254 Cases in the United States District Courts, this Court must issue or deny a certificate of appealability when it enters a final order adverse to the applicant. Unless a circuit justice or district judge issues a certificate of appealability, an appeal may not be taken to the court of appeals.
