REPORT AND RECOMMENDATION

JANIS VAN MEERVELD, Magistrate Judge.

This matter was referred to this United States Magistrate Judge for the purpose of conducting a hearing, including an evidentiary hearing, if necessary, and submission of proposed findings of fact 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 record, the Court has determined that this matter can be disposed of without an evidentiary hearing. See 28 U.S.C. § 2254(e)(2). Therefore, for all of the following reasons, IT IS RECOMMENDED that the petition be DISMISSED WITH PREJUDICE.

State Court Factual and Procedural Background

Petitioner, Shawn Martin, is a state prisoner incarcerated at the Louisiana State Penitentiary in Angola, Louisiana. On April 5, 2008, Martin and co-defendants Michael Jacobs and Joshua Thomas were charged by a bill of information with two counts of armed robbery (counts one and two) and one count of attempted armed robbery (count three).1 On February 22, 2010, the State proceeded to trial against petitioner as to Count Two only.2 Petitioner waived his right to trial by jury and proceeded to be tried by the court. The trial judge found petitioner guilty as charged as to count two, and the state entered a nolle prosequi as to counts one and three.3 On February 26, 2010, the trial court sentenced petitioner to a term of imprisonment of forty (40) years at hard labor.4 On that date, the state filed a multiple offender bill of information charging petitioner as a double offender.5 On May 6, 2010, the trial court found petitioner guilty of being a second felony offender and vacated the previous sentence of forty (40) years. The trial court resentenced petitioner as a double offender to a term of imprisonment of fifty-five (55) years at hard labor without the benefit of probation or suspension of sentence.6 On May 24, 2011, the Fifth Circuit Court of Appeal affirmed petitioner's conviction and sentence but amended petitioner's habitual offender sentence to reflect it was imposed without the benefit of parole.7 The Louisiana Supreme Court denied writs without stated reasons on February 3, 2012.8 The United States Supreme Court denied petitioner's petition for writ of certiorari on October 1, 2012.9

On September 26, 2013, petitioner filed an application for post-conviction relief with the state district court raising three claims for relief: (1) counsel failed to introduce into evidence surveillance video of the individual the victim claimed approached him outside Boomtown Casino and surveillance video showing petitioner using cash to purchase merchandise at Foot Locker; (2) counsel failed to conduct pretrial investigation into the case and interview Officer Tammy Dore, Detective Gary Barteet and Stephen Charles and call them to testify at trial; (3) counsel failed to afford Martin his constitutional right to procedural due process during the multiple bill hearing.10 On November 14, 2013, the state district court denied claim three on state procedural grounds.11 On February 20, 2014, the state district court denied claims one and three on the merits.12

Petitioner sought review of his post-conviction claims in two separate stages. On December 2, 2013, petitioner filed notice of his intent to seek writs related to the state district court's order denying claim three on procedural grounds.13 On January 22, 2014, the state district court gave petitioner until either February 22 or 28, 2014, to seek timely review in the appellate court.14 On February 26, 2014, petitioner filed his writ with the Fifth Circuit Court of Appeal.15 On May 23, 2014, the Fifth Circuit Court of Appeal denied petitioner's writ.16 On June 20, 2014, petitioner filed a writ with the Louisiana Supreme Court.17 The Louisiana Supreme Court denied relief April 17, 2015.18

After the state district court denied claims one and two on the merits, petitioner filed notice of his intent to seek writs on March 6, 2014.19 On April 1, 2014, petitioner sent a letter to the district court clerk advising he had not received a disposition concerning his March notice.20 The district court ordered on April 1, 2014, that petitioner file his writ with the Fifth Circuit "as provided by law."21 On April 10, 2014, the clerk sent to petitioner a response to request for information and/or documents advising that an "Order ruling on Notice of Intent" was "not part of the court record."22 On May 20, 2014, petitioner sent a letter to the district court judge advising that the clerk's office advised him that the court had not rendered a ruling on his notice and requested the judge set a return date.23 On June 26, 2014, petitioner filed a second notice of intent to seek writs.24

On July 15, 2014, the district court entered an order but left blank the time by which petitioner should file his application for writs with the Fifth Circuit.25 On July 24, 2014, petitioner sought writs from the Fifth Circuit.26 On August 27, 2014, the Fifth Circuit Court of Appeal denied relief.27 On September 24, 2014, petitioner filed a writ application with the Louisiana Supreme Court.28 On September 11, 2015, the Louisiana Supreme Court denied relief finding "[t]here is no error in the rulings of the court below."29

On September 18, 2015, petitioner filed the instant federal application seeking habeas corpus relief in which he asserts the following claims for relief:30 (1) ineffective assistance of counsel in failing to introduce into evidence at trial the surveillance video of the person the victim claimed approached him at Boomtown Casino and surveillance video of petitioner using cash to purchase items at Foot Locker; (2) ineffective assistance of counsel in failing to conduct pretrial investigation and interview Officer Tammy Dore, Detective Gary Barteet, and Stephen Charles and call them to testify at trial; and (3) ineffective assistance of counsel in denying petitioner due process during the multiple offender adjudication and allowing the state to use a defective bill to enhance his sentence. The state has filed a response arguing that the application should be dismissed as untimely.31 Petitioner filed a reply arguing that his application is timely filed, and alternatively, equitable tolling is warranted.32

Timeliness

The Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA") includes a statute of limitations for petitioners seeking federal habeas corpus relief pursuant to 28 U.S.C. § 2254. Specifically, the AEDPA provides:

28 U.S.C. § 2244(d)(1).

In the instant case, Martin has not asserted that a government-created impediment to his filing existed, that he bases his claims on a right newly recognized by the United States Supreme Court, or that the facts supporting his claims could not have been discovered through the exercise of due diligence before his conviction became final. Thus, the statute of limitations must be measured from the remaining trigger, which is the date on which his conviction became final. See 2244(d)(1)(A). When a petitioner, after having his direct appeal denied by the state's highest court, timely files a petition for writ of certiorari with the United States Supreme Court, his conviction becomes final when the United States Supreme Court denies the petition for writ of certiorari. Geisberg v. Cockrell, 288 F.3d 268, 271 (5th Cir. 2002); Crutcher v. Cockrell, 301 F.3d 656, 657 (5th Cir. 2002); State v. Hofman, 768 So.2d 592, 592 (La. 2000).

Petitioner was sentenced on May 6, 2010. His direct appeal became final on October 1, 2012, when the United States Supreme Court denied his petition for certiorari. Accordingly, petitioner's period in which to file his federal application for habeas corpus relief commenced on October 1, 2012, and expired one year later, unless that deadline was extended through tolling.

The Court first considers statutory tolling. Regarding the statute of limitations, the AEDPA expressly provides: "The time during which a properly filed application for State post-conviction or other collateral review with respect to the pertinent judgment or claim is pending shall not be counted toward any period of limitation under this subsection." 28 U.S.C. § 2244(d)(2). The decisions of the Fifth Circuit and other federal courts have held that because this statute is a tolling provision, the time during which state court post-conviction proceedings are pending must merely be subtracted from the one-year limitations period:

Flanagan v. Johnson, 154 F.3d 196, 199 n. 1 (5th Cir. 1998); accord Brisbane v. Beshears, 161 F.3d 1, 1998 WL 609926, at *1 (4th Cir. Aug. 27, 1998) (Table, Text in Westlaw); Gray v. Waters, 26 F.Supp.2d 771, 771-72 (D. Md. 1998).

For a post-conviction application to be considered "properly filed" within the meaning of Section 2244(d)(2), the applicant must "`conform with a state's applicable procedural filing requirements,'" such as timeliness and location of filing. Pace v. DiGuglielmo, 544 U.S. 408, 414 (2005) ("When a postconviction application is untimely under state law, `that [is] the end of the matter' for purposes of § 2244(d)(2)"); Williams v. Cain, 217 F.3d 303, 306-307 n. 4 (5th Cir. 2000) (quoting Villegas v. Johnson, 184 F.3d 467, 469 (5th Cir. 1999)); Smith v. Ward, 209 F.3d 383, 384-85 (5th Cir. 2000). The timeliness consideration in Louisiana, for purposes of the AEDPA, requires application of a prison mailbox rule to state pleadings filed by a prisoner. Causey v. Cain, 450 F.3d 601, 604-05 (5th Cir. 2006).

A matter is "pending" for Section 2244(d)(2) purposes "as long as the ordinary state collateral review process is `in continuance.'" Carey v. Saffold, 536 U.S. 214, 219-20 (2002); Williams, 217 F.3d at 310 (a matter is "pending" for Section 2244(d)(2) purposes until "`further appellate review [is] unavailable under [Louisiana's] procedures.'").

The phrase "other collateral review" in the statute refers to state court proceedings challenging the pertinent judgment subsequently challenged in the federal habeas petition. Dilworth v. Johnson, 215 F.3d 497, 501 (5th Cir. 2000) (state habeas petition challenging a prior conviction in one county was other collateral review even though filed as a challenge to a second conviction in a different county). A "pertinent judgment or claim" requires that the state filings for which tolling is sought must have challenged the same conviction being challenged in the federal habeas corpus petition and must have addressed the same substantive claims now being raised in the federal habeas corpus petition. Godfrey v. Dretke, 396 F.3d 681, 686-88 (5th Cir. 2005).

In petitioner's case, after 359 days, petitioner statutorily tolled his federal limitations period by filing his motion to correct illegal sentence with the state district court on September 26, 2013.33 The state argues that the time began to run again on February 25, 2014, when petitioner failed to timely file his writ application with the Louisiana Fifth Circuit Court of Appeal on February 24, 2014, and ran for two additional days until Martin filed the writ application on February 26, 2014. Petitioner responds that the district court order gave him until February 28, 2014, by which to file his application for writ. He continues that his application filed on February 26, 2014, was timely filed and continued to toll the limitations period.

The order dated January 22, 2014, includes a handwritten return date on which the second number could easily be construed as an eight (8) rather than a two (2). Given the less than clear date on the order directing the time by which petitioner needed to file his application for writ, I cannot conclude with confidence that petitioner's application for writ filed on February 26, 2014, was not a properly filed continuation to the next step of his state proceedings that did not result in tolling for AEDPA statute of limitations purposes. Accordingly, providing petitioner with the benefit of every doubt, I will assume the application for supervisory writ was properly filed.

The time continued to be statutorily tolled through April 15, 2015, when the Louisiana Supreme Court denied relief. That said, petitioner's federal limitations period did not resume running on April 16, 2015, because he was entitled to an overlapping period of tolling. Specifically, the state district court denied relief as to claims one and two on February 20, 2014. Petitioner filed notice of his intent to seek writs on March 6, 2014. Petitioner normally would have had only thirty days to seek further review from the Court of Appeal. See Louisiana Uniform Rules of the Courts of Appeal Rule 4-3; see also Melancon v. Kaylo, 259 F.3d 401, 404-06 (5th Cir. 2001); Campbell v. Cain, Civ. Action No. 06-3983, 2007 WL 2363149, at *3 & n.24 (E.D. La. Aug. 15, 2007). Thus, generally, his time to file a writ would have expired on March 24, 2014. The state district court did not issue its order until April 1, 2014, and further, petitioner did not receive the order. After he was misadvised by the clerk of court that no such order had been entered, petitioner continued to diligently seek a return date by sending a letter to the judge and a second notice of his intent to seek writs. He filed his writ application nine days after the state district court entered its July 15, 2014 order.

It must be noted that the Fifth Circuit Court of Appeal did not deny petitioner's writ application as untimely; instead, the court expressly denied his claims on the merits stating that it found "no error in the judgment of the district court's ruling that Relator failed to support his allegations that counsel was ineffective under Strickland."34

In Grillette v. Warden, Winn Corr.Center, 372 F.3d 765 (5th Cir. 2004), the United States Fifth Circuit Court of Appeals faced a similar scenario and found that tolling continued uninterrupted. The Fifth Circuit held:

Grillette, 372 F.3d at 775 (emphasis added).

This Court should not unilaterally ignore the presumptions employed in Grillette. Bourgeois v. Bergeron, Civ. Action No. 09-3185, 2009 WL 5088756, at *4 (E.D. La. Dec. 23, 2009). Therefore, out of an abundance of caution, the Court will toll the federal limitations period in the instant case from the date the post-conviction application was filed until the date on which petitioner's application seeking review was denied by the Louisiana Supreme Court on September 11, 2015.

When petitioner's federal limitations period finally began running again on September 12, 2015, 359 days had passed and he had six days remaining. Therefore, he had until Thursday, September 17, 2015, either to file his federal application or to again toll the limitations period. Petitioner had no applications pending before the state courts during the remaining days of the limitations period. Petitioner filed the instant petition on Friday, September 18, 2015, thereby allowing 366 days to expire. It is therefore untimely under a more lenient calculation. Although petitioner's application was filed only a day late, "the magnitude of [a petitioner's] tardiness" simply is not a proper consideration in determining the timeliness of a federal habeas application. Lookingbill v. Cockrell, 293 F.3d 256, 264 (5th Cir. 2002). As the United States Fifth Circuit Court of Appeals has explained:

Id. at 264-65 (footnote omitted).

The Court must next consider equitable tolling. The United States Supreme Court has expressly held that the AEDPA's statute of limitations is subject to equitable tolling. Holland v. Florida, 560 U.S. 631, 645 (2010). However, "a petitioner is entitled to equitable tolling only if he shows (1) that he has been pursuing his rights diligently, and (2) that some extraordinary circumstance stood in his way and prevented timely filing." Id. at 649 (internal quotation marks omitted); accord Davis v. Johnson, 158 F.3d 806, 811 (5th Cir. 1998) (holding that the AEDPA's statute of limitations can be equitably tolled "in rare and exceptional circumstances"). Equitable tolling is warranted only in situations where the petitioner was actively misled or is prevented in some extraordinary way from asserting his rights. Pace, 544 U.S. at 418-19; Cousin v. Lensing, 310 F.3d 843, 848 (5th Cir. 2002).

A petitioner bears the burden of proof to establish entitlement to equitable tolling. Alexander v. Cockrell, 294 F.3d 626, 629 (5th Cir. 2002). Courts must consider the individual facts of each case in determining the appropriateness of equitable tolling. United States v. Patterson, 211 F.3d 927, 931 (5th Cir. 2000). The courts' inquiries should focus "on the reasons for missing the deadline rather than on the magnitude of the tardiness." Lookingbill, 293 F.3d at 264 (citing Ott, 192 F.3d at 512) (refusing equitable tolling where petitioner missed deadline by only a "few days")).

Petitioner claims that he is entitled to equitable tolling because he did not receive the Louisiana Supreme Court order denying relief until September 14, 2015, and, further, was housed in Camp J where he was locked in a cell for 23 hours a day without access to legal material. Petitioner argues that he had to rely on the assistance of offender counsel and filed his habeas petition four days later.

It is clear that a prisoner's pro se status does not constitute rare and exceptional circumstances warranting equitable tolling. See, e.g., Felder v. Johnson, 204 F.3d 168, 171-72 (5th Cir. 2000). Further, a four day turnaround time for notice to be given from the court to the petitioner is not an unreasonable or substantial delay. Smith v. Cain, Civ. Action No. 11-0519, 2012 WL 1698336, at *5 (E.D. La. Feb. 23, 2012), adopted, 2012 WL 1710981 (E.D. La. May 14, 2012) (seven day turnaround time for notice to be given from court to counsel and counsel to petitioner neither unreasonable nor substantial delay). Moreover, a delay in the prison internal mail-distribution system does not qualify as an exceptional circumstance. Bryant v. State of Louisiana, Civ. Action No. 06-0088, 2007 WL 2323383, at *4-5 (E.D. La. Aug. 9, 2007). Therefore, any delay petitioner experienced in receiving notice of the Louisiana Supreme Court order denying relief does not qualify petitioner for equitable tolling. Finally, Martin's 23-hour confinement and lack of access to legal material also do not constitute rare or exceptional circumstances warranting equitable tolling. Madis v. Edwards, 347 F. App'x 106, 108 (5th Cir. 2009) (finding transfers between units, separation from legal materials, and administrative segregation are not rare or exceptional circumstances meriting equitable tolling). see also Dodd v. United States, 365 F.3d 1273, 1283 (11th Cir. 2004) ("Lockdowns and periods in which a prisoner is separated from his legal papers are not `exceptional circumstances' in which equitable tolling is appropriate."). The Court is not aware of any other circumstance in this case that might warrant equitable tolling. Therefore, there is no basis for finding that the limitations period should be equitably tolled.

Lastly, the Court also notes that the United States Supreme Court has held: "[A]ctual innocence, if proved, serves as a gateway through which a petitioner may pass whether the impediment is a procedural bar . . . or, as in this case, expiration of the statute of limitations." McQuiggin v. Perkins, 133 S.Ct. 1924, 1928 (2013). Here, petitioner does not invoke McQuiggin. However, in the event he does so in any objections to this Report and Recommendation, the undersigned finds that petitioner has not made the showing required under McQuiggin for the following reasons.

In McQuiggin, the Supreme Court expressly cautioned: "[T]enable actual-innocence gateway pleas are rare: `[A] petitioner does not meet the threshold requirement unless he persuades the district court that, in light of the new evidence, no juror, acting reasonably, would have voted to find him guilty beyond a reasonable doubt.'" McQuiggin, 133 S. Ct. at 1928 (quoting Schlup v. Delo, 513 U.S. 298, 329 (1995)). Further, as the United States Sixth Circuit Court of Appeals has explained:

Eberle v. Warden, Mansfield Correctional Institution, 532 F. App'x 605, 613 (6th Cir. 2013).

A logical starting point, therefore, is to look at the "old" evidence, i.e. the evidence existing and known at the time of petitioner's trial. That evidence is recounted in the Louisiana Fifth Circuit Court of Appeal's summary of the facts of this case on direct appeal:

The foregoing "old evidence" was obviously compelling evidence of guilt, and so petitioner would face a daunting burden to present a credible "actual innocence" claim. Specifically, the United States Supreme Court has explained: "To be credible, such a claim requires petitioner to support his allegations of constitutional error with new reliable evidence — whether it be exculpatory scientific evidence, trustworthy eyewitness accounts, or critical physical evidence — that was not presented at trial. Because such evidence is obviously unavailable in the vast majority of cases, claims of actual innocence are rarely successful." Schlup, 513 U.S. at 324 (emphasis added). Here, petitioner presents no new evidence whatsoever, much less any evidence of the type or caliber referenced in Schlup. Therefore, he has not met "the threshold requirement" for McQuiggin to apply, i.e. a showing that "in light of the new evidence, no juror, acting reasonably, would have voted to find him guilty beyond a reasonable doubt.'" McQuiggin, 133 S. Ct. at 1928 (quoting Schlup, 513 U.S. at 329; emphasis added). Accordingly, McQuiggin does not aid him.

Because petitioner is not entitled to further statutory tolling, and because he has not established that he is eligible for equitable tolling or that the McQuiggin "actual innocence" exception applies, his federal application for habeas corpus relief had to be filed no later than September 17, 2015, in order to be timely. His application was not filed until September 18, 2015, and, therefore, it is untimely.

Nevertheless, out of an abundance of caution, the undersigned will address the merits of petitioner's claims.

Standards of Review

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 and 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). Courts have held that the "`contrary to' and `unreasonable application' clauses [of § 2254(d)(1)] have independent meaning." Bell, 535 U.S. at 694.

Regarding the "contrary to" clause, the United States Fifth Circuit Court of Appeals has explained:

Wooten v. Thaler, 598 F.3d 215, 218 (5th Cir. 2010) (internal quotation marks, ellipses, brackets, and footnotes omitted).

Regarding the "unreasonable application" clause, the United States Supreme Court has held: "[A] state-court decision is an unreasonable application of our clearly established precedent if it correctly identifies the governing legal rule but applies that rule unreasonably to the facts of a particular prisoner's case." White v. Woodall, 134 S.Ct. 1697, 1705 (2014). However, the Supreme Court cautioned:

Id., at 1706 (citations and quotation marks omitted). Therefore, when the Supreme Court's "cases give no clear answer to the question presented, let alone one in [the petitioner's] favor, it cannot be said that the state court unreasonably applied clearly established Federal law." Wright v. Van Patten, 552 U.S. 120, 126 (2008) (quotation marks and brackets omitted). The Supreme Court has also expressly cautioned that "an unreasonable application is different from an incorrect one." Bell, 535 U.S. at 694. Accordingly, 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.").

While the AEDPA standards of review are strict and narrow, they are purposely so. As the United States Supreme Court has held:

Harrington v. Richter, 562 U.S. 86, 102-03 (2011) (citations omitted; emphasis added); see also Renico v. Lett, 559 U.S. 766, 779 (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.").

The Supreme Court has expressly warned that although "some federal judges find [28 U.S.C. § 2254(d)] too confining," it is nevertheless clear that "all federal judges must obey" the law and apply the strictly deferential standards of review mandated therein. White, 134 S. Ct. at 1701.

Petitioner's Claims

Petitioner makes three claims that his trial was ineffective in failing to: (1) introduce evidence at trial of surveillance video of the person the victim claimed approached him at Boomtown Casino and surveillance video of petitioner using cash to purchase items at Foot Locker; (2) conduct pretrial investigation and interview Officer Tammy Dore, Detective Gary Barteet, and Stephen Charles and call them to testify at trial; (3) require the state to use a proper bill to enhance his sentence thereby denying petitioner due process during the multiple offender adjudication. As discussed below, these claims have no merit.

The appropriate standard for judging the performance of counsel was established by the United States Supreme Court in Strickland v. Washington, 466 U.S. 668 (1984). In Strickland, the Court established a two-part test for evaluating claims of ineffective assistance of counsel in which the petitioner must prove deficient performance and prejudice therefrom. Id. at 697. The petitioner has the burden of proving ineffective assistance of counsel by a preponderance of the evidence. See Montoya v. Johnson, 226 F.3d 399, 408 (5th Cir. 2000); Jernigan v. Collins, 980 F.2d 292, 296 (5th Cir. 1992). In deciding ineffective assistance claims, a court need not address both prongs of the conjunctive Strickland standard, but may dispose of such a claim based solely on a petitioner's failure to meet either prong of the test. See Amos v. Scott, 61 F.3d 333, 348 (5th Cir. 1995).

To prevail on the deficiency prong, petitioner must demonstrate that counsel's conduct failed to meet the constitutional minimum guaranteed by the Sixth Amendment. See Styron v. Johnson, 262 F.3d 438, 450 (5th Cir. 2001). "The defendant must show that counsel's representation fell below an objective standard of reasonableness." Strickland, 466 U.S. 466 U.S. at 687-88. The analysis of counsel's performance must take into account the reasonableness of counsel's actions under prevailing professional norms and in light of all of the circumstances. See Strickland, 466 U.S. at 689; Carty v. Thaler, 583 F.3d 244, 258 (5th Cir. 2009). The reviewing court must "`judge . . . counsel's challenged conduct on the facts of the particular case, viewed as of the time of counsel's conduct.'" Roe v. Flores-Ortega, 528 U.S. 470, 477 (2000) (quoting Strickland, 466 U.S. at 690). Petitioner must overcome a strong presumption that the conduct of his counsel falls within a wide range of reasonable representation. See Harrington, 562 U.S. at 104 (citing Strickland, 466 U.S. at 689).

In order to prove prejudice, the 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, see also Williams v. Thaler, 602 F.3d 291, 310 (5th Cir. 2010). Furthermore, "[t]he petitioner must `affirmatively prove,' and not just allege, prejudice." Day v. Quarterman, 566 F.3d 527, 536 (5th Cir. 2009) (quoting Strickland, 466 U.S. at 693). In this context, "a reasonable probability is a probability sufficient to undermine confidence in the outcome." Cullen v. Pinholster, 563 U.S. 170, 189 (2011) (quoting Strickland, 466 U.S. at. 694). This standard requires a "substantial," not just "conceivable," likelihood of a different result. Harrington, 562 U.S. at 112.

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 v. McCotter, 796 F.2d 787, 793 (5th Cir. 1986). Thus, conclusory allegations of ineffective assistance of counsel, with no showing of effect on the proceedings, do not raise a constitutional issue sufficient to support federal habeas relief. See Miller v. Johnson, 200 F.3d 274, 282 (5th Cir. 2000) (citing Ross v. Estelle, 694 F.2d 1008, 1012 (5th Cir. 1983)).

On habeas review, the United States Supreme Court has clarified that, in applying Strickland, "[t]he question is whether an attorney's representation amounted to incompetence under prevailing professional norms, not whether it deviated from best practices or most common custom." Harrington, 562 U.S. at 88. The Harrington Court went on to recognize the high level of deference owed to a state court's findings under Strickland in light of AEDPA standards of review:

Id. at 105 (citations and quotation marks omitted).

Thus, scrutiny of counsel's performance under § 2254(d) is "doubly deferential." Cullen, 563 U.S. at 171 (quoting Knowles v. Mirzayance, 129 S.Ct. 1411, 1413 (2009)). The federal courts must take a "highly deferential" look at counsel's performance under the Strickland standard through the "deferential lens of § 2254(d)." Id., at 172 (citing Strickland, 466 U.S. at 689 and quoting Knowles, 129 S.Ct. at 1419 n. 2). Furthermore, the court will "indulge a strong presumption that strategic or tactical decisions made after an adequate investigation fall within the wide range of objectively reasonable professional assistance." Moore v. Johnson, 194 F.3d 586, 591-92 (5th Cir. 1999) (citing Strickland, 466 U.S. at 689-90); see also Matheson v. King, 751 F.2d 1432, 1441 (5th Cir. 1985).

1. Failure to Introduce Video Evidence

Petitioner's first claim of ineffective assistance of counsel is that his counsel failed to introduce into evidence two surveillance videos. The first video is surveillance video from Boomtown Casino and depicts a person the victim originally identified as the same person who approached him in the parking lot. The second surveillance video petitioner claims would show him purchasing items with cash at Foot Locker.

The state district court found:

The Fifth Circuit Court of Appeal found "no error in the district court's ruling that Relator failed to support his allegations that counsel was ineffective under Strickland. We agree with the district court's ruling that Relator's claims of ineffective assistance of counsel were either without merit or speculative."37 The Louisiana Supreme Court denied relief finding "no error in the rulings of the courts below."38

Decisions regarding the presentation of evidence are inherently matters of trial strategy. Schwertz v. Cain, Civ. Action Nos. 12-1897, 12-2142, 2012 WL 5956308, at *14 (E.D. La. Nov. 13, 2012), adopted, 2012 WL 5949516 (E.D. La. Nov. 28, 2012). The United States Supreme Court has cautioned courts not to assess counsel's decisions concerning strategy through the distorting lens of hindsight; rather, courts are to employ a strong presumption that counsel's conduct falls within a wide range of reasonable assistance and, under the circumstances, might be considered sound trial strategy. Strickland, 466 U.S. at 689.

Petitioner contends the Boomtown Casino video would have shown co-defendant Jacobs following the victim as he left the casino. He argues that the video would have undermined the victim's identification of petitioner as the person in the video as well as his testimony that the person in the video was the same person who approached him in the parking lot and later robbed him outside his home.

Whether petitioner was depicted in the Boomtown surveillance video, which showed the victim, Amin Joudeh, leaving the casino, was not an issue at trial. Sergeant Carroll of the Jefferson Parish Sheriff's Office testified that petitioner was not depicted in any Boomtown Casino video.39 Further, Joudeh testified that while he originally identified petitioner as the person following him in the video, the video was "fuzzy" and at trial he was no longer sure of his identification of Martin as the person in the video.40 The video did not show anyone making contact with Joudeh nor was there any video of Joudeh in parking lot. However, Joudeh positively identified petitioner as the robber on several occasions. Joudeh testified that the perpetrator originally approached him in the casino parking lot and asked for a cigarette and later robbed Joudeh at his home.41 Joudeh testified that he had a clear and unobstructed view of the perpetrator's face on both occasions.42 Joudeh identified petitioner from a photographic lineup shown to him just days after the robbery.43 Sergeant Carroll confirmed that Joudeh identified petitioner from a photographic lineup but testified that Joudeh was not able to identify either of petitioner's co-defendants from another photographic lineup.44 Joudeh also identified petitioner in court.45 Joudeh testified that he was one hundred (100) percent positive of his identification of petitioner as the robber based on seeing him in the parking lot and at his home.46

Given the evidence presented at trial, petitioner has not demonstrated that the Boomtown Casino surveillance video was so material or potentially helpful to the defense that counsel's failure to introduce it was constitutionally deficient performance. Nor has petitioner demonstrated that there is a reasonable probability the outcome of the trial would have been different had counsel attempted to introduce the Boomtown Casino surveillance video.

Petitioner also claims that the Foot Locker video would have shown him using cash to purchase merchandise while co-defendant Jacobs utilized a stolen credit card. Petitioner fails to show the relevance of this video. While petitioner and his co-defendants had been charged with a series of robberies, the evidence at petitioner's trial related to a single robbery on February 29, 2008, during which Joudeh was robbed of $520 cash. There was no evidence presented at trial relating to a stolen credit card, which belonged to a victim of a separate robbery; nor was there evidence that purchases were made at any store. Further, petitioner's use of cash to purchase merchandise did not exculpate him given that Joudeh had been robbed of cash. Thus, even if the Foot Locker surveillance video were somehow relevant, petitioner has not shown his counsel's performance fell below an objective standard of reasonableness as his counsel could have made a tactical decision not to present the evidence as it could well have been damaging to petitioner. Williams v. Cain, 125 F.3d 269, 278-79 (5th Cir. 1997) (stating the failure to present evidence is not deficient performance, if the attorney could have concluded "for tactical reasons, that attempting to present such evidence would be unwise.") Petitioner further fails to satisfy the second prong of Strickland in that he fails to demonstrate there is a reasonable probability the outcome of the trial would have been different had counsel attempted to introduce the video.

Petitioner has not demonstrated that the state courts' decision rejecting his ineffective assistance of counsel claims based on failure to introduce the videos 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 as to this claim.

2. Failure to Conduct Pretrial Investigation & Interview and Present Witnesses

Petitioner's second claim is that his counsel failed to conduct pretrial investigation, failed to interview Officer Tammy Dore, Detective Gary Barteet, and Stephen Charles, and failed to call them to testify at trial. Petitioner argues that the testimony of Dore, Barteet, and Charles would have exculpated him. He claims that Joudeh told Dore that the perpetrator was wearing black pants and a black hooded sweater and that Charles, Joudeh's neighbor, told Dore that he saw two black males parked on the street and that one of them, wearing all black, exited the vehicle. Martin argues that Barteet viewed the Boomtown Casino video and identified co-defendant Jacobs as the person wearing black pants and a black hooded sweater and following Joudeh as he exited the casino. He further claims an investigation would have enabled counsel to "learn more about the conditions at the scene that may have affected the victim's opportunity for observation. For example, the victim testified that a `pile of dirt' was in the yard. Stephen Charles made no mention of a `pile of dirt' nor was he asked about it."47

The state district court, in denying petitioner's claims, found as follows:

The Fifth Circuit Court of Appeal found petitioner's ineffective assistance of counsel claims were either speculative or without merit.49 The Louisiana Supreme Court denied relief finding "no error in the rulings of the courts below."50

To prevail on a claim concerning inadequate investigation and preparation, a petitioner must show that a more thorough investigation or better preparation would have in fact benefited the defense. In other words, he must show that allegedly exculpatory evidence existed and would have been revealed through additional efforts. See Moawad v. Anderson, 143 F.3d 942, 948 (5th Cir. 1998); see also Brown v. Dretke, 419 F.3d 365, 375 (5th Cir. 2005); Wilson v. Cain, Civ. Action No. 06-890, 2009 WL 2163124, at *22 (E.D. La. July 16, 2009), aff'd, 641 F.3d 96 (5th Cir. 2011); Davis v. Cain, Civ. Action No. 07-6389, 2008 WL 5191912, at *10 (E.D. La. Dec. 11, 2008). A petitioner cannot show prejudice as to a claim that his counsel failed to investigate without adducing what the investigation would have shown and that the outcome would have been different as a result. Diaz v. Quarterman, 239 F. App'x 886, 890 (5th Cir. 2007) (citing Strickland, 466 U.S. at 696).

In addition, the Fifth Circuit has held that complaints of uncalled witnesses are not favored in federal habeas corpus review of an ineffective assistance of counsel claim, because the presentation of testimonial evidence is a matter of trial strategy and because allegations of what a witness would have stated are largely speculative. Day, 566 F.3d at 538. In order to demonstrate prejudice arising from failure to call witnesses, the petitioner must show that the witness would have testified at trial and that the testimony would have been favorable. Alexander v. McCotter, 775 F.2d 595, 602 (5th Cir. 1985). There must be a "`reasonable probability' that the uncalled witnesses would have made [a] difference to the result." Id., at 603 (citation omitted).

Petitioner has provided no proof that his counsel failed to investigate the case. Trial counsel advised that he had been provided the discovery, had read the transcripts and police reports, and was prepared to proceed with trial.51 Counsel's questioning of the witnesses at trial shows that he was prepared and informed. Petitioner also has presented nothing but his selfserving argument to establish that counsel did not contact the prospective witnesses. Even assuming counsel did not interview the witnesses, petitioner fails to show that Dore, Barteet and Charles would have provided any information not already included in the police reports. A petitioner's bare speculation that additional investigation would have resulted in a different outcome at trial is insufficient to prove the prejudice required to prevail on such a claim. See Thomas v. Cain, Civ. Action No. 09-4425, 2009 WL 4799203, at *9 (E.D. La. Dec. 9, 2009).

With regard to petitioner's claim that his counsel was ineffective in failing to call Dore, Barteet and Charles to testify, petitioner fails to show that any of the witnesses were available to testify or that their testimony would have been beneficial to the defense. Evans v. Cockrell, 285 F.3d 370, 377 (5th Cir. 2002) (for an ineffective assistance of counsel claim relating to failure to call witnesses, petitioner must show witnesses would have testified at trial and that the testimony would have been favorable). Nothing petitioner alleges about what the witnesses might have testified appears so crucial as to render counsel's failure to call them at trial constitutionally deficient.

Petitioner argues that Joudeh testified that the robber came out from behind a load of dirt in the neighbor's yard and that Charles could have been asked about the existence of the load of dirt. Petitioner speculates that the existence of the dirt pile could have affected Joudeh's view of the perpetrator. However, Joudeh testified that he had a clear and unobstructed view of the perpetrator both when he approached him in the parking lot and when he robbed Joudeh at his home.52 Further, petitioner has not submitted anything to support the substance of Charles' expected testimony regarding that issue or that the testimony would have been likely to change the outcome of the trial. To the extent he claims that Barteet would have testified that it was co-defendant Jacobs seen following Joudeh in the Boomtown Casino surveillance video, his testimony would have been cumulative. A failure to present such testimony does not amount to ineffective assistance of counsel. Richards v. Quarterman, 566 F.3d 553, 568 (5th Cir. 2009); Coble v. Quarterman, 496 F.3d 430, 436 (5th Cir. 2007) ("Counsel's decision not to present cumulative testimony does not constitute ineffective assistance.") (citing Murray v. Maggio, 736 F.2d 279, 282 (5th Cir. 1984)).

The fact that Jacobs was wearing black clothes and Charles saw a person wearing black clothes could hardly be considered exculpatory or impeachment evidence. Finally, testimony that there were two people in the car near Joudeh's house would also not have exculpated Martin or impeached Joudeh as Joudeh reported that there were two persons in vehicle.53

For the foregoing reasons, petitioner fails to show that his counsel acted in a constitutionally deficient manner by failing to call these witnesses at trial and further fails to show that the testimony would have altered the outcome of the trial. The state courts' denial of relief on this issue was not contrary to, or an unreasonable application of Strickland. Petitioner is not entitled to relief on this claim.

3. Failure to Challenge Bill of Information Used to Enhance his Sentence

In his final claim of ineffective assistance of counsel, petitioner contends his lawyer's performance was deficient because he failed to challenge the bill of information utilized during the multiple offender adjudication procedures to enhance his sentence. He claims that the habitual offender bill was defective in that it misstated the charge to which petitioner pled guilty as possession with the intent to distribute marijuana. Petitioner argues that the possession charge was dismissed and therefore could not be used as a basis to enhance his sentence. He explains that he pled guilty to an amended charge of attempted possession of marijuana with the intent to distribute.

The state argues that this claim is procedurally barred. For the reasons that follow, the state is correct.

The state district court found the claim was not cognizable for review in an application for post-conviction relief as it was procedurally barred.54 The Fifth Circuit Court of Appeal, in denying petitioner's application for writ, explained as follows:

The Louisiana Supreme Court denied relief citing La. Code Crim. P. art 930.3, State ex rel. Melinie v. State, 665 So.2d 1171 (La. 1996), State v. Cotton, 45 So.3d 1030 (La. 2010), and State v. Thomas, 19 So.3d 466 (La. 2009).56

The United States Fifth Circuit Court of Appeals has explained:

Here, petitioner's claim that his counsel was ineffective in connection with the sentencing proceedings was denied by the state courts pursuant to La. Code Crim. P. art 930.3, Melinie, Cotton, and Thomas. All of those authorities clearly concern procedural matters: article 930.3 limits the grounds on which a prisoner may seek post-conviction relief; the Melinie decision held that article 930.3 does not allow post-conviction challenges to sentencing errors; Cotton held that article 930.3 and Melinie bar post-conviction claims alleging ineffective assistance of counsel in sentencing matters, and Thomas held that claims of excessive sentence and ineffective assistance of counsel at sentencing are not cognizable on collateral review pursuant to article 930.3, Melinie and Cotton.

Moreover, federal courts have repeatedly held that article 930.3 and the Melinie and Cotton decisions are "independent" and "adequate" state rules to support a procedural bar in federal court. See, e.g., Hull v. Stalder, 234 F.3d 706, 2000 WL 1598016, at *1 (5th Cir. Sept. 28, 2000) (per curiam) (Table, Text in Westlaw) (article 9303.3 and Melinie are "independent" and "adequate" state grounds to support a procedural bar); Reavis v. Hedgeman, Civ. Action No. 15-1982, 2015 WL 7307329, at *6-7 (E.D. La. Nov. 6, 2015) (article 930.3, Melinie, and Cotton are "independent" and "adequate"), adopted, 2015 WL 7306440 (E.D. La. June 3, 2015); Price v. Tanner, Civ. Action No. 14-1628, 2015 WL 5060237, at *4-5 (Aug. 17, 2015) (same); Williams v. Vannoy, Civ. Action No. 14-1914, 2015 WL 3505116, at *6-7 (E.D. La. June 3, 2015) (same); Williams v. Strain, Civ. Action No. 13-2998, 2014 WL 5305634, at *5-6 (E.D. La. Oct. 15, 2014) (same); Johnson v. Cain, No. 12-0621, 2012 WL 5363327, at *4 (E.D. La. Oct. 30, 2012) (same); Evans v. Cain, No. 11-2584, 2012 WL 2565008, at *6-8 (E.D. La. Mar. 14, 2012) (same), adopted, 2012 WL 2565001 (E.D. La. July 2, 2012).

Where, as here, the procedural rules invoked by the state courts are "independent" and "adequate, "federal habeas review is barred unless the petitioner demonstrates either cause and prejudice or that a failure to address the claim will result in a fundamental miscarriage of justice." Hughes v. Johnson, 191 F.3d 607, 614 (5th Cir. 1999). However, "[t]o establish cause for a procedural default, there must be something external to the petitioner, something that cannot fairly be attributed to him." Johnson v. Puckett, 176 F.3d 809, 816 (5th Cir. 1999) (quotation marks omitted). Here, petitioner makes no attempt to establish "cause" for the procedural default of this claim. Further, "[a]bsent a showing of cause, it is not necessary for the court to consider whether there is actual prejudice." Martin v. Maxey, 98 F.3d 844, 849 (5th Cir. 1996).

When a petitioner has failed to meet the "cause and prejudice" test, a federal court should normally consider his claim only if the application of the procedural bar would result in a "fundamental miscarriage of justice." That exception is a limited one which exists only if a petitioner makes a colorable showing that he is "actually innocent." See Bagwell v. Dretke, 372 F.3d 748, 757 (5th Cir. 2004); Lucas v. Johnson, 132 F.3d 1069, 1077 (5th Cir. 1998). However, the Court notes that it is unclear whether the exception even applies at all to cases, such as this one, in which the defaulted claim relates merely to a matter concerning a noncapital sentence.

In Haley v. Cockrell, 306 F.3d 257 (5th Cir. 2002), the United States Fifth Circuit Court of Appeals, after noting that a split exists among the circuits on that issue, held that the "actual innocence" exception is available to petitioners in noncapital proceedings who claim they were erroneously sentenced. Id. at 265-66. The Haley court further held that, when barred claims dealt with such alleged sentencing errors, the "actual innocence" requirement is met only when the petitioner shows that "he would have not been legally eligible for the sentence he received." Id. at 264. However, the Supreme Court subsequently vacated the Haley decision on other grounds and remanded the case to the Fifth Circuit. Dretke v. Haley, 541 U.S. 386 (2004). In so doing, the Supreme Court expressly declined to answer the question of whether the "actual innocence" exception applies to noncapital sentencing errors. Id. at 393-94.

This Court does not attempt to answer the question left open by the Supreme Court. Nevertheless, even if the "actual innocence" exception is applicable to defaulted claims regarding such matters, petitioner has not shown that he was legally ineligible for the sentence imposed.57 Accordingly, for all of the foregoing reasons, the undersigned finds that petitioner's claim that his counsel was ineffective in connection with the sentencing proceedings is procedurally barred from federal review.

RECOMMENDATION

It is therefore RECOMMENDED that the federal application for habeas corpus relief filed by Shawn Martin be DISMISSED WITH PREJUDICE.

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); see Douglass v. United Services Auto. Ass'n, 79 F.3d 1415, 1430 (5th Cir. 1996) (en banc).