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, Andrew Roberts, is a state prisoner incarcerated in the Louisiana State Penitentiary in Angola, Louisiana. On May 12, 2010, Roberts was charged by grand jury indictment with second degree murder pursuant to Louisiana Revised Statute 14:30.1.
Roberts appealed his conviction and sentence to the Louisiana First Circuit Court of Appeal. He asserted that the evidence was insufficient to support the verdict and the trial court erred in denying his motion for a post-verdict judgment of acquittal. On June 8, 2012, the court of appeal affirmed his conviction and sentence.
On April 17, 2013, Roberts filed an application for post-conviction relief in the state district court.
On July 2, 2013, Roberts filed a related supervisory writ application in the Louisiana First Circuit Court of Appeal.
On December 5, 2013, Roberts filed a second supervisory writ application in the Louisiana First Circuit.
On March 10, 2015, Roberts filed his federal application for habeas corpus relief.
Threshold questions in habeas review are whether the petition is timely and whether the claims raised by the petitioner were adjudicated on the merits in state court (i.e., the petitioner must have exhausted state court remedies and must not be in "procedural default" on a claim). Nobles v. Johnson, 127 F.3d 409, 419-20 (5th Cir.1997) (citing 28 U.S.C. § 2254(b), (c)). For the following reasons, the Court finds that the petition is timely filed and the claims are properly exhausted.
The State notes correctly that Roberts' conviction became final on February 7, 2013 (90 days after the Louisiana Supreme Court denied his writ application on November 9, 2012). Ott v. Johnson, 192 F.3d 510, 513 (5th Cir.1999). The one-year period ran for 74 days until he signed his state court post-conviction application on April 23, 2013. That application was denied on June 14, 2013. The State argues that tolling ceased entirely thirty (30) days after the state district court denied the application for post-conviction relief, because Roberts' supervisory writ application to the Louisiana First Circuit was not properly filed in accordance with state law. As a result, the State submits it did not serve to toll the statute of limitations and his time for filing then ran uninterrupted until it expired on May 2, 2014. Given the procedural defect in his initial supervisory writ application, the State also asserts that Roberts did not fairly present the claims to the courts of appeal, and therefore failed to exhaust his state court remedies. However, neither argument advanced by the State addresses the import or effect of the appellate court ruling that explicitly afforded Roberts until December 30, 2013 to file a new writ application, or the fact that Roberts thereafter timely filed a new supervisory writ application, as permitted, within the allotted time frame.
Although Roberts' initial timely application for supervisory review in the Louisiana First Circuit was deemed improperly filed and denied because it did not comply with state procedural rules that required inclusion of specified documents, the state court's ruling may clearly be considered as implicitly granting an extension of time for Roberts to file his writ application. See Dixon v. Cain, 316 F.3d 553, 554 (5th Cir.2003) (concluding that when a petitioner files a notice of intent to seek supervisory review within the 30-day time period, and the trial court sets a return date outside the 30-day time period, the court has effectively granted the petitioner an extension of time to file his writ application). Here, the appellate court ruling provided: "In the event relator elects to file a new application with this Court, the application must be filed on or before December 30, 2013." Roberts complied with the appellate court's ruling and filed his second application within the specified time period. That application was not denied for procedural reasons, but instead appears to be a ruling on the merits.
Even if Roberts received no tolling credit for his initial state court post-conviction application filed with the Louisiana First Circuit because it failed to comply with state procedural rules, tolling would recommence either on the date of the First Circuit ruling granting the extension, or at the very latest, on the date he filed the second supervisory writ application. In either event, the instant federal application would be timely filed. Under the circumstances, and absent any authority cited by the State to the contrary, the application was timely and properly filed for purposes of tolling the federal one-year limitations period. See Holton v. Cain, Civ. Action No. 11-749, 2014 WL 3189737, at *6 (M.D. La. July 8, 2014) (finding that appellate court's writ ruling that provided petitioner a later deadline for filing writ application that complied with procedural requirements was an implicit extension of time for purposes of tolling the one-year federal limitations period). Furthermore, contrary to the State's position, Roberts fairly presented and exhausted the three claims for relief raised in the second supervisory writ application filed with the Louisiana First Circuit and thereafter in his writ application to the Louisiana Supreme Court. The undersigned will therefore consider the merits of Roberts' claims.
The Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA") comprehensively overhauled federal habeas corpus legislation, including 28 U.S.C. § 2254. Amended subsections 2254(d)(1) and (2) contain revised standards of review for pure questions of fact, pure questions of law, and mixed questions of both. The amendments "modified a federal habeas court's role in reviewing state prisoner applications in order to prevent federal habeas `retrials' and to ensure that state-court convictions are given effect to the extent possible under law." Bell v. Cone, 535 U.S. 685, 693 (2002).
As to pure questions of fact, factual findings 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.").
As to pure questions of law or mixed questions of law and fact, a federal court must defer to the state court's 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, 535 U.S. at 694.
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 (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 v. Richter, 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.").
On direct appeal, the Louisiana First Circuit summarized the facts as follows:
In his first two claims for relief, Roberts asserts that the evidence was insufficient to support his conviction for second degree murder.
The Louisiana Supreme Court denied his related writ application without assigning additional reasons.
Because a sufficiency of the evidence claim presents a mixed question of law and fact, this Court must defer to the state court's decision rejecting this claim unless petitioner shows that the 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); Taylor v. Day, Civ. Action No. 98-3190, 1999 WL 195515, at *3 (E.D. La. Apr. 6, 1999), aff'd, 213 F.3d 639 (5th Cir.2000). For the following reasons, the Court finds that Roberts has made no such showing.
The court of appeal applied the standard articulated in Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). Under Jackson, a federal habeas court addressing an insufficiency of the evidence claim must determine, after viewing the evidence in the light most favorable to the prosecution, whether a rational trier of fact could have found that the essential elements of the crime were proven beyond a reasonable doubt. Jackson, 443 U.S. at 319; Williams v. Cain, 408 F. App'x 817, 821 (5th Cir.2011); Perez v. Cain, 529 F.3d 588, 594 (5th Cir.2008). The proper focus under Jackson is not "whether the trier of fact made the correct guilt or innocence determination, but rather whether it made a rational decision to convict or acquit." Santellan v. Cockrell, 271 F.3d 190, 193 (5th Cir.2001) (quoting Herrera v. Collins, 506 U.S. 390, 402 (1993)) (emphasis added); see also Cavazos v. Smith, 132 S.Ct. 2, 4 (2011) ("[A] federal court may not overturn a state court decision rejecting a sufficiency of the evidence challenge simply because the federal court disagrees with the state court. . . . Because rational people can sometimes disagree, the inevitable consequence of this settled law is that judges will sometimes encounter convictions that they believe to be mistaken, but that they must nonetheless uphold."). Moreover, because the state court's decision applying the already deferential Jackson standard must be assessed here under the strict and narrow standards of review mandated by the AEDPA, the standard to be applied by this Court is in fact "twice-deferential." Parker v. Matthews, 132 S.Ct. 2148, 2152 (2012); see also Coleman v. Johnson, 132 S.Ct. 2060, 2062 (2012).
Under Louisiana law, second degree murder is defined in pertinent part as the "killing of a human being: (1) when the offender has a specific intent to kill or inflict great bodily harm; or (2) when the offender is engaged in the perpetration or attempted perpetration of . . . cruelty to juveniles . . . even though he has no intent to kill or to inflict great bodily harm." La. R.S. 14:30.1(A). Louisiana law defines cruelty to juveniles as "the intentional or criminally negligent mistreatment or neglect by anyone seventeen years of age or older of any child under the age of seventeen whereby unjustifiable pain or suffering is caused to said child." La. R.S. 14:93(A)(1).
The evidence introduced at trial included testimony by the state's expert, St. Tammany Parish Deputy Coroner Dr. Michael DeFatta, who opined based on his review of the medical evidence and personal autopsy examination of the victim that the victim died of blunt force head trauma from child abuse, and Roberts' recorded statement to police which included several different accounts of the incident and his admission after being confronted with evidence of the victim's physical injuries to striking the 22-month-old's head against the ground multiple times.
The evidence in this case, viewed in the light most favorable to the prosecution, was sufficient for any rational trier of fact to find that the State satisfied the elements necessary to prove second degree murder. Therefore, Roberts cannot show that the state court's decision rejecting his claim was contrary to, or involved an unreasonable application of, clearly established federal law, as determined by the Supreme Court of the United States. He is not entitled to relief on this claim.
Roberts claims that the trial court erred in excluding the responsive verdict of manslaughter when charging the jury. Under Louisiana law, both manslaughter and negligent homicide are included as legislatively authorized lesser responsive verdicts to a charge of second degree murder. La. C.Cr.P. art. 814(A)(3). In the instant case, the trial court charged the jury only as to negligent homicide and omitted manslaughter as a responsive verdict.
Federal habeas corpus relief may be granted only to remedy violations of the Constitution and laws of the United States; mere violations of state law will not suffice. 28 U.S.C. § 2254; Engle v. Issac, 456 U.S. 107, 119 (1983). A claim that a trial court gave an improper jury instruction under state law is not cognizable on habeas review absent a showing that the erroneous instruction "so infected the entire trial that the resulting conviction violates due process." Estelle v. McGuire, 502 U.S. 62, 75, 112 S.Ct. 475, 116 L.Ed.2d 385 (1991) (erroneous jury instructions may not serve as the basis for habeas relief unless they have "so infused the trial with unfairness as to deny due process of law").
To the extent Roberts asserts his due process rights were violated when the trial court failed to charge the jury as to manslaughter, it is less than clear that he had any federal right to such an instruction. There is no clearly established Supreme Court authority requiring lesser included offense instructions in noncapital cases. See Beck v. Alabama, 447 U.S. 625, 638 n. 14, 100 S.Ct. 2382, 65 L.Ed.2d 392 (1980) (The Supreme Court left open the question whether the Due Process Clause is violated when a lesser included offense is omitted from jury consideration in a noncapital case). The Fifth Circuit has held generally in noncapital cases, the failure to include a responsive verdict does not violate federal law. Valles v. Lynaugh, 835 F.2d 126, 127 (5th Cir.1988); Alexander v. McCotter, 775 F.2d 595, 601 (5th Cir.1985); see also Weatherspoon v. Cain, Civ. Action No. 10-4500, 2011 WL 4351397, at *25 (E.D. La. July 8, 2011), adopted, 2011 WL 4063611 (E.D.La. Sept. 13, 2011); Jason v. Cain, Civ. Action No. 04-0882, 2006 WL 2949523, at *14 (E.D. La. Oct. 13, 2006) ("The failure to include a responsive verdict in a noncapital case does not violate federal law."). Therefore, Roberts' claim that the state trial court improperly omitted the responsive charge of manslaughter does not raise a federal constitutional question.
Roberts asserts he received ineffective assistance of counsel at trial and on appeal. He claims that his trial attorney was ineffective in failing to object when the trial court omitted manslaughter as a responsive verdict to the charge of second degree murder. He argues that appellate counsel was ineffective for failing to challenge the trial court's denial of the motion to suppress the confession. The state district court summarily rejected these claims first raised in his state-court post-conviction relief application. The appellate courts denied his related applications for supervisory writs without assigning reasons.
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, i.e. 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).
The appropriate standard for determining prejudice varies slightly depending on whether a petitioner is challenging the actions of trial or appellate counsel. In order to prove prejudice with respect to trial counsel, 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. On the other hand, to prove prejudice with respect to a claim that appellate counsel was ineffective, a petitioner must show a reasonable probability that he would have prevailed on appeal but for his counsel's deficient representation. Briseno v. Cockrell, 274 F.3d 204, 207 (5th Cir.2001); see also Smith v. Robbins, 528 U.S. 259, 286 (2000). Therefore, a petitioner must demonstrate a reasonable probability that, if appellate counsel's performance had not been deficient in the manner claimed, the appellate court would have vacated or reversed the trial court judgment based on the alleged error. Briseno, 274 F.3d at 210.
Because the state courts rejected petitioner'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). Moreover, the United States Supreme Court has held that, under the AEDPA, federal habeas corpus review of ineffective assistance of counsel claims is doubly deferential. Woods v. Donald, 135 S.Ct. 1372, 1376 (2015) (citing Burt v. Titlow, 134 S.Ct. 10, 13, 187 L.Ed.2d 348 (2013) (quoting Cullen v. Pinholster, 563 U.S. 170, 131 S.Ct. 1388, 1403, 179 L.Ed.2d 557 (2011).
As for trial counsel's failure to object when the trial court omitted the responsive verdict of manslaughter, the failure did not amount to deficient performance and Roberts suffered no prejudice as a result. Even assuming counsel chose to exclude the responsive verdict, a decision not to offer a jury instruction on a lesser included offense falls within the realm of trial strategy. Jason v. Cain, Civ. Action No. 04-0882, 2006 WL 2949523, at *14-17 (E.D. La. 2006) (citing Lake v. Portuondo, 14 F. App'x. 126, 128 (2nd Cir.2001) ("A decision to forgo a charge on lesser included offenses is strategic in nature.")). Here, counsel made a tactical decision not to include the responsive verdict of manslaughter as part of a reasonable trial strategy. He obviously sought to convince the jury that Roberts was not guilty of second degree murder because the medical evidence showed the victim died from natural causes and not any mistreatment at the hands of Roberts. He presented contrasting expert testimony in support of the defense theory that absent any evidence of skull fractures, the victim could not have sustained the head trauma suggested by the prosecution as inflicted by Roberts, and instead offered a convincing alternate theory as to how the victim died that supported Roberts' initial version of the incident he related to police and the victim's injuries. The goal was to gain an acquittal or at the very least a responsive verdict of negligent homicide, which was presented to the jury. Offering the jury a possible manslaughter verdict based on slim and unconvincing evidence of provocation would have confused the jury and negated the defense theory and likelihood of outright acquittal or greatly reduced sentence if he was convicted of negligent homicide. The mere fact that the strategy proved unsuccessful is not evidence that counsel performed deficiently. See Bell v. Epps, No. 08-70031, 347 F. App'x 73, 79 (5th Cir. 2009) (unpublished) (holding that reviewing courts must make "every effort to account for the distorting effect of hindsight on ultimately unsuccessful trial decisions") (quoting Strickland, 466 U.S. at 689). Furthermore, given the trial strategy, the evidence would not have supported a verdict of manslaughter and therefore the agreed-upon exclusion of the responsive verdict of manslaughter would have been proper. See La. C.Cr.P. art. 814(C); State v. Newton, 973 So.2d 916, 919 n. 2 (La. App. 2nd Cir.2007) ("If there is no evidence reasonably supporting a verdict, then such a verdict may be excluded as a possible responsive verdict."); State v. Loyden, 899 So.2d 166, 173 (La. App. 3rd Cir.2005) (same). There is no evidence that counsel's decision to forgo the responsive verdict of manslaughter fell below the conduct of a reasonably competent attorney. Strickland, 466 U.S. at 687.
Nor has he established prejudice by demonstrating "a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. Roberts implies that the jury's question to the court during deliberations regarding the penalty for negligent homicide shows that jurors sought a compromise verdict and would have found him guilty of manslaughter, rather than second degree murder, had it been offered. However, the unanswered juror question with respect to negligent homicide does not offer any insight into the potential for a verdict of manslaughter based on the evidence presented at trial.
Next, Roberts claims that appellate counsel provided ineffective assistance when he failed to challenge the trial court's denial of the motion to suppress his confession. He argues that appellate counsel's failure to raise the claim on direct appeal had a devastating effect on his right to a fair trial because the confession was the most damaging piece of evidence. This claim was raised in his state post-conviction application and rejected on the merits.
The admissibility of a confession is a mixed question of law and fact. Miller v. Fenton, 474 U.S. 104, 112 (1985); Shislnday v. Quarterman, 511 F.3d 514, 522 (5th Cir.2007) (citing Miller, 474 U.S. at 112). A federal court on habeas review must respect the state court's determination of voluntariness as long as it was not "contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court." 28 U.S.C. § 2254(d)(1); Barnes v. Johnson, 160 F.3d 218, 222 (5th Cir.1998). In doing so, a federal habeas court must afford a presumption of correctness to state courts' findings of fact if they are fairly supported by the record. Miller, 474 U.S. at 117.
There are two inquiries to determine whether an accused has voluntarily and knowingly waived his Fifth Amendment privilege against self-incrimination. Moran v. Burbine, 475 U.S. 412, 421 (1986); Soffar v. Cockrell, 300 F.3d 588, 592 (5th Cir.2002). First, waiver of the right must be voluntary and not the product of intimidation, coercion or deception. Moran, 475 U.S. at 421. Second, the waiver or relinquishment must be made with full awareness of the nature of the right being waived. Id. In making these inquiries, the court must consider the "totality of all the surrounding circumstances—both the characteristics of the accused and the details of the interrogation." Schneckloth v. Bustamonte, 412 U.S. 218, 224 (1973). Determining whether officers engaged in coercive tactics to elicit a confession is a question of fact, and the state court's factual findings are entitled to deference when supported by the record. Pemberton v. Collins, 991 F.2d 1218, 1225 (5th Cir.1993); Self v. Collins, 973 F.2d 1198, 1204 (5th Cir.1992); see also Miller, 474 U.S. at 112 (noting that subsidiary questions such as whether the police engaged in coercive tactics are afforded the presumption of correctness).
The record shows that Detective Hotard first interviewed Roberts at the scene on Thursday, April 1, 2010. At that time, Roberts freely and voluntarily explained to officers in an audio-recorded statement that he left the child unattended and she fell off the couch. The story quickly became suspect. Detective Hotard soon learned from the treating physician that child abuse was suspected based on the extent of the victim's injuries, particularly to her head. Detective Hotard then attended the April 3, 2010 autopsy conducted by Dr. DeFatta, who told him that the victim's injuries were inconsistent with Roberts' version of the incident. On Monday, April 5, 2010, Detective Hotard interviewed Roberts again at the police station. The interview was documented by both audio and videotaped recordings. Roberts executed a waiver of rights form and made several inculpatory statements to police during the course of the interview. The inculpatory statements made during this interview form the basis of Roberts' habeas claim.
In denying the motion to suppress, the trial court noted that the April 1, 2010 audiotaped statement was not part of any custodial interrogation. As to the April 5, 2010 statements, the trial court found that Roberts was adequately advised of his rights and knowingly and intelligently waived them. The court also found that the statements given during the interview were not obtained through the use of any force, coercion or intimidation of any kind.
Importantly, Roberts does not dispute that he understood the rights he was waiving and that he did so knowingly. He argues that his April 5, 2010 confession was involuntary and that police officers used force to coerce his statements. He asserts he made the statements only after he was beaten by the police.
The trial court's finding that the confession was voluntary and did not result from police misconduct is supported by the record. The transcript of the evidentiary pretrial suppression hearing reflects that Roberts' inculpatory statements were not the result of any coercive tactics or physical force by the police. Detective Hotard, who conducted the interview, testified that Roberts made the statements voluntarily and willingly when he was confronted with contrary information from their investigation. Neither audio nor video recordings of the interview supported Roberts' claims of abuse. Roberts pointed to the fact that the tapes reveal him spitting into a garbage can as evidence of abuse. However, at the suppression hearing and trial, defense counsel was allowed to question Detective Hotard and explore this occurrence with regard to his coercion claim.
Appellate counsel was not deficient for failing to raise the suppression issue on appeal because it lacked merit. An appellate counsel's performance may not be deemed deficient for failing to argue a frivolous or non-meritorious claim. Smith v. Robbins, 528 U.S. 259, 285 (2000). Effective assistance of counsel on appeal does not mean counsel who will raise every nonfrivolous ground of appeal available, but rather counsel performing in a reasonably effective manner. Green v. Johnson, 160 F.3d 1029, 1043 (5th Cir.1998) (citing Evitts v. Lucey, 469 U.S. 387, 394 (1985) (appellate counsel "need not advance every argument, regardless of merit, urged by the appellant")). Counsel is not required to raise even "nonfrivolous points requested by the client, if counsel, as a matter of professional judgment, decides not to present those points." Jones v. Barnes, 463 U.S. 745, 751 (1983).
Given the substantial evidence in the record to support the trial court's denial of the motion to suppress the confession, appellate counsel was not deficient for failing to raise the suppression issue on appeal. Moreover, he cannot show that there is a reasonable probability he would have prevailed on appeal if the issue had been raised. Briseno v. Cockrell, 274 F.3d 204, 207 (5th Cir.2001); see also Smith, 528 U.S. at 286.
For the foregoing reasons, Roberts has failed to demonstrate that the state court's decision rejecting his ineffective assistance of counsel claims was contrary to, or involved an unreasonable application of, clearly established federal law, as determined by the Supreme Court of the United States. Thus, under the AEDPA's doubly deferential standard applicable to ineffective assistance claims, the claims should be rejected.
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).
