REPORT AND RECOMMENDATION

JOSEPH C. WILKINSON, Jr., Magistrate Judge.

This matter was referred to a United States Magistrate Judge to conduct hearings, 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. Upon review of the entire record, I have determined that a federal evidentiary hearing is unnecessary. See 28 U.S.C. § 2254(e)(2).1 For the following reasons, I recommend that the instant petition for habeas corpus relief be DENIED and DISMISSED WITH PREJUDICE.

I. FACTUAL AND PROCEDURAL BACKGROUND

The petitioner, Michael Pennington, is incarcerated in the Louisiana State Penitentiary in Angola, Louisiana.2 On November 9, 2007, Pennington and two co-defendants, Lionel Richardson and Cedric D. Richardson, were indicted by a Tangipahoa Parish grand jury for the first degree murder of Byron Williams.3 After the case was severed for separate proceedings against the two defendants, the charge against Pennington was reduced to second degree murder.4 The Louisiana First Circuit Court of Appeal summarized the facts determined at trial as follows:

State v. Pennington, No. 2012-KA-0804, 2013 WL 596151, at *1-*2 (La. App. 1st Cir. 2013); State Record Volume 11 of 11, Louisiana First Circuit Opinion, 2012-KA-0804, pages 2-4, February 15, 2013.

Pennington was tried before a jury on January 31 and February 1 through 3, 2012, and found guilty of second degree murder.5 At a hearing on February 15, 2012, the state trial court denied Pennington's motion for a new trial.6 The state trial court thereafter sentenced him to serve life in prison without benefit of parole, probation or suspension of sentence.7

On direct appeal to the Louisiana First Circuit, Pennington's appointed counsel asserted two errors:8 (1) The state trial court erred by denying the defense's motion to suppress the statements. (2) Admission of Pennington's statements at trial was not harmless error. Pennington apparently filed a pro se supplemental brief asserting that the state trial court erred in denying the defense motion for mistrial when a prospective juror mentioned other crimes or bad acts during voir dire.9

The Louisiana First Circuit affirmed the conviction and sentence on February 15, 2013, finding the claims meritless.10 The court held that Pennington's statement was admissible because it was made after a voluntary and knowing waiver of his rights. The court also found that there was no reason for a mistrial. On March 15, 2013, the court denied a request for rehearing filed by Pennington's counsel.11

The Louisiana Supreme Court denied Pennington's related writ application on November 1, 2013, without stated reasons.12 His conviction became final ninety (90) days later on January 30, 2014, when he did not file a writ application with the United States Supreme Court. Ott v. Johnson, 192 F.3d 510, 513 (5th Cir. 1999) (period for filling for certiorari with the United States Supreme Court is considered in the finality determination under 28 U.S.C. § 2244(d)(1)(A)), cert. denied, 529 U.S. 1099 (2000); U.S. Sup. Ct. Rule 13(1).

On October 22, 2014, Pennington signed and submitted to the state trial court an application for post-conviction relief in which he asserted three grounds for relief:13 (1) His federal and state constitutional rights were violated when he proceeded to trial without a ruling from the Louisiana First Circuit on the writ application seeking review of the state trial court's denial of the motion to suppress his statement. (2) His counsel was ineffective when he failed to object to the trial proceeding without a ruling from the appellate court. (3) He was denied due process and equal protection because the state trial court failed to rule on his motion to quash. The state trial court denied relief on November 20, 2014, finding the claims meritless.14

On April 20, 2015, the Louisiana First Circuit denied Pennington's related writ application without stated reasons.15 The Louisiana Supreme Court denied Pennington's subsequent writ application on April 8, 2016, for lack of proof and under Strickland v. Washington, 466 U.S. 668 (1984), adopting by reference the state trial court's reasoning.16

II. FEDERAL HABEAS PETITION

On July 12, 2016, the clerk of this court filed Pennington's petition for federal habeas corpus relief in which he asserted the following grounds for relief:17 (1) The state trial court erred or abused its discretion by denying the motion to suppress his statement. (2) His constitutional rights were violated when he went to trial without a ruling from the Louisiana First Circuit on his writ application seeking review of the state trial court's denial of the motion to suppress his statement. (3) His counsel was ineffective when he failed to object to the trial starting without a ruling from the appellate court. (4) He was denied due process and equal protection because the state trial court failed to rule on his motion to quash.

The State filed a response in opposition to Pennington's petition conceding that it was timely filed and that state court review of his claims was properly exhausted.18 The State argues that Pennington's claims are meritless, and he is not entitled to federal habeas relief.

III. GENERAL STANDARDS OF REVIEW

The Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), Pub. L. No. 104-132, 110 Stat. 1214, comprehensively revised federal habeas corpus legislation, including 28 U.S.C. § 2254. The AEDPA went into effect on April 24, 199619 and applies to habeas petitions filed after that date. Flanagan v. Johnson, 154 F.3d 196, 198 (5th Cir. 1998) (citing Lindh v. Murphy, 521 U.S. 320 (1997)). The AEDPA therefore applies to Pennington's petition, which, for reasons discussed below, is deemed filed in a federal court on July 12, 2016.20 The threshold questions in habeas review under the amended statute are whether the petition is timely and whether petitioner's claims 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)).

The State concedes and I find that Pennington's petition was timely, state court review of the claims was exhausted and none are in procedural default.

IV. STANDARDS OF A MERITS REVIEW

28 U.S.C. §§ 2254(d)(1) and (2) contain revised standards of review for questions of fact, questions of law and mixed questions of fact and law in federal habeas corpus proceedings. Nobles, 127 F.3d at 419-20 (citing 28 U.S.C. § 2254(b) and (c)).

Determinations of questions of fact by the state court are "presumed to be correct. . . and we 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.'" Hill v. Johnson, 210 F.3d 481, 485 (5th Cir. 2000) (quoting 28 U.S.C. § 2254(d)(2)), cert. denied, 532 U.S. 1039 (2001). The amended statute also codifies the "presumption of correctness" that attaches to state court findings of fact and the "clear and convincing evidence" burden placed on a petitioner who attempts to overcome that presumption. 28 U.S.C. § 2254(e)(1).

A state court's determination of questions of law and mixed questions of law and fact are reviewed under 28 U.S.C. § 2254(d)(1) and receive deference, unless the state court's decision "`was contrary to, or involved an unreasonable application of, clearly established [Supreme Court precedent.]'" Penry v. Johnson, 215 F.3d 504, 507 (5th Cir. 2000) (quoting Miller v. Johnson, 200 F.3d 274, 280-81 (5th Cir.), cert. denied, 531 U.S. 849 (2000)), aff'd in part, rev'd in part on other grounds, 532 U.S. 782 (2001); Hill, 210 F.3d at 485. The United States Supreme Court has clarified the Section 2254(d)(1) standard as follows:

Williams v. Taylor, 529 U.S. 362, 405-06, 412-13 (2000); Penry v. Johnson, 532 U.S. 782, 792-93 (2001); Hill, 210 F.3d at 485. The "critical point" in determining the Supreme Court rule to be applied "is that relief is available under § 2254(d)(1)'s unreasonable-application clause if, and only if, it is so obvious that a clearly established rule applies to a given set of facts that there could be no `fairminded disagreement' on the question." (citation omitted) White v. Woodall, 134 S.Ct. 1697, 1706-07 (2014) (citing Harrington v. Richter, 562 U.S. 86, 103 (2011)), and Knowles v. Mirzayance, 556 U.S. 111, 122 (2009)). "Thus, `if a habeas court must extend a rationale before it can apply to the facts at hand,' then by definition the rationale was not `clearly established at the time of the state-court decision.'" White, 134 S. Ct. at 1706 (quoting Yarborough v. Alvarado, 541 U.S. 652, 666 (2004)).

"`A federal habeas court may not issue the writ simply because that court concludes in its independent judgment that the state court decision applied [a Supreme Court case] incorrectly.'" Price v. Vincent, 538 U.S. 634, 641 (2003) (quoting Woodford v. Visciotti, 537 U.S. 19, 24-25 (2002)) (brackets in original); Bell v. Cone, 535 U.S. 685, 699 (2002). Rather, under the "unreasonable application" standard, "the only question for a federal habeas court is whether the state court's determination is objectively unreasonable." Neal v. Puckett, 286 F.3d 230, 246 (5th Cir. 2002), cert. denied, sub nom, Neal v. Epps, 537 U.S. 1104 (2003). The burden is on the petitioner to show that the state court applied the precedent to the facts of his case in an objectively unreasonable manner. Price, 538 U.S. at 641 (quoting Woodford, 537 U.S. at 24-25); Wright v. Quarterman, 470 F.3d 581, 585 (5th Cir. 2006).

V. DENIAL OF THE MOTION TO SUPPRESS (CLAIMS NO. 1 & 2)

Pennington alleges that the state trial court erred or abused its discretion by denying the motion to suppress his statement to police because the advice of rights form was misleading and resulted in involuntary waiver of his rights. He also asserts that his constitutional rights were violated when the trial court proceeded to trial without waiting for a ruling from the Louisiana First Circuit on his writ application seeking review of the denial of the motion to suppress the statement.

Pennington's appointed counsel challenged denial of the motion to suppress on direct appeal. The Louisiana First Circuit held that the language in the waiver of rights form was not a mandated waiver, and that it was clear and unambiguous, including its explanation of the right to counsel and the opportunity to either give a statement or remain silent. The court concluded that it was not error for the state trial court to deny the motion to suppress or admit the statement at trial.

On post-conviction review, Pennington asserted that it was error for the matter to proceed to trial without awaiting a ruling from the Louisiana First Circuit on the state trial court's denial of the motion to suppress. The state trial court denied relief finding that Pennington had not demonstrated that a delay in the trial would have altered the outcome. This reasoning later was adopted by reference by the Louisiana Supreme Court in its denial of Pennington's related writ application.

The admissibility of a confession is a mixed question of law and fact. Miller v. Fenton, 474 U.S. 104, 112 (1985); ShisInday 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. Similarly, the habeas corpus statute obliges federal judges to respect credibility determinations made by the state court trier of fact. Pemberton v. Collins, 991 F.2d 1218, 1225 (5th Cir.1993) (citing Sumner v. Mata, 455 U.S. 591, 597 (1982)).

Under Miranda v. Arizona, 384 U.S. 436 (1966), a statement made by a person in custody is inadmissible unless that person was informed that he has the right to have an attorney present during questioning, that he has the right to remain silent, and that anything that he says may be used against him. Id., 384 U.S. at 444-45. These rights may be waived so long as the waiver is knowing and voluntary. Moran v. Burbine, 475 U.S. 412, 421 (1986). Two inquiries determine whether an accused has voluntarily and knowingly waived his Fifth Amendment privilege against self-incrimination. Moran, 475 U.S. at 421; 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. The Supreme Court does not require that any precise language be continued in the written waiver forms used by police officials, as long as the warnings "were sufficiently comprehensive and comprehensible when given a commonsense reading." Florida v. Powell, 559 U.S. 50, 63 (2010). 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).

In this case, in accordance with Jackson v. Denno, 378 U.S. 368 (1964), the state trial court viewed the video recordings of Pennington's two-part statement and conducted a full evidentiary hearing on the admissibility of the inculpatory statement based on the motions to suppress filed by Pennington's counsel.21 The court received testimony from the investigating officers, including the interviewers Sergeant Gary Baham and Detective Ray Lentz, and other evidence, including the waiver of rights form signed by Pennington and transcripts of the statement. The trial court denied the motion without stated reasons at a hearing on December 15, 2010.22

Although he sought leave to do so, Pennington's counsel did not seek pretrial review of the state trial court's denial of the motion to suppress in the Louisiana First Circuit. Counsel conceded this fact on the record at a hearing on April 13, 2011.23 The records of the Louisiana First Circuit confirm that no writ application was filed at that time.24

When the trial court ruling was addressed on direct appeal, the Louisiana First Circuit held that the language in the waiver of rights form signed by Pennington clearly and unambiguously set forth the required rights under Miranda. The court reviewed each paragraph of the form for clarity in light of Miranda. The court determined based on the video recording that Sergeant Baham provided Pennington a copy of the waiver form to read along with him as each right was addressed. The court held that Pennington's rights were fully explained to him, and Pennington gave no indication that he lacked understanding of the form, his rights or the waiver of those rights, which was consistent with the holdings in Berghuis v. Thompkins, 560 U.S. 370, 387-88 (2010) and North Carolina v. Butler, 441 U.S. 369, 373 (1979). For these reasons, the court denied relief, citing numerous Supreme Court decisions.25

Pennington has not challenged the factual conclusions reached by the Louisiana First Circuit as to the details and circumstances of the advice of rights by Sergeant Baham, including the review and reading of the rights form before he signed it. He also does not assert that he did not understand his rights or that he was waiving those rights. Instead, he argues only that the language of the form implied that he was waiving the rights before he actually signed it or waived his rights.

The transcript of the interview reflects that Sergeant Baham read Pennington the required warnings pursuant to Miranda, including the right to counsel and to remain silent, and explained to him that he could request counsel before or at anytime during questioning. Sergeant Baham expressed the following:

Pennington was asked if he understood this explanation, the other portions of the form and the discussions of his rights to counsel and to remain silent. As the state courts found, the transcript contains no indication that Pennington did not understand. As contemplated by the Supreme Court, the recitation of Pennington's rights was clear and unambiguous and his waiver of those rights by his actions was voluntary and knowing under the applicable standards of law.

In addition, there is no factual support for Pennington's contention that the trial should not have gone forward without waiting for a ruling from the appellate court on the trial court's denial of the motion to suppress. His counsel did not file a writ application for review of that ruling. Pennington therefore has failed to establish that any constitutional right was violated when the matter proceeded to trial as it did.

For the foregoing reasons, the denial of the motion to suppress, denial of relief on appeal and the admission of the inculpatory statement at trial were not contrary to or an unreasonable application of applicable Supreme Court law. Pennington is not entitled to relief on these claims.

VI. EFFECTIVE ASSISTANCE OF COUNSEL (CLAIM NO. 3)

Pennington asserts that his trial counsel was ineffective when he failed to object to the matter proceeding to trial before there was a ruling from the state appellate court on the denial of the motion to suppress his statements. The state trial court denied relief on this issue on post-conviction review. The court held that, in light of the Louisiana First Circuit's holding on direct appeal, that the denial of the motion to suppress and admission of the statement was appropriate and that Pennington had not established that delaying the trial would have a different outcome. The Louisiana Supreme Court denied relief under Strickland v. Washington, 466 U.S. 668 (1984), and adopted these reasons on its later review of the claim.

The standard for judging performance of counsel was established by the United States Supreme Court in Strickland, relied on by the state courts, in which the Supreme Court established a two-part test for evaluating claims of ineffective assistance of counsel, requiring petitioner to prove both deficient performance and resulting prejudice. Strickland, 466 U.S. at 697. The Supreme Court first held that "the defendant must show that counsel's representation fell below an objective standard of reasonableness." Id. at 687-88. Second, "[t]he defendant must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694; United States v. Kimler, 167 F.3d 889, 893 (5th Cir. 1999).

In deciding ineffective assistance of counsel claims, this 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. Kimler, 167 F.3d at 893. A habeas corpus petitioner "need not show that `counsel's deficient conduct more likely than not altered the outcome in the case.' . . . But it is not enough under Strickland, `that the errors had some conceivable effect on the outcome of the proceeding.'" (citation omitted) Motley v. Collins, 18 F.3d 1223, 1226 (5th Cir. 1994) (quoting Strickland, 466 U.S. at 693); Harrington v. Richter, 562 U.S. 86, 112 (2011) (Strickland requires a "substantial" likelihood of a different result, not just "conceivable" one.)

On habeas review, the United States Supreme Court has clarified that, under 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 105. The Harrington Court went on to recognize the high level of deference owed to a state court's findings under Strickland in light of the AEDPA:

Harrington, 562 U.S. at 105.

Thus, scrutiny of counsel's performance under § 2254(d) is "doubly deferential." Cullen v. Pinholster, 563 U.S. 170, 190 (2011) (quoting Knowles v. Mirzayance, 556 U.S. 111, 123 (2009)). This court must therefore apply the "strong presumption" that counsel's strategy and defense tactics fall "within the wide range of reasonable professional assistance." Strickland, 466 U.S. at 690.

Federal habeas courts presume that litigation strategy is objectively reasonable unless clearly proven otherwise by the petitioner. Id., 466 U.S. at 689; Geiger v. Cain, 540 F.3d 303, 309 (5th Cir. 2008); Moore v. Johnson, 194 F.3d 586, 591 (5th Cir. 1999). In assessing counsel's performance, a federal habeas court must make every effort to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel's challenged conduct, and to evaluate the conduct from counsel's perspective at the time of trial. Strickland, 466 U.S. at 689; Neal v. Puckett, 286 F.3d 230, 236-37 (5th Cir. 2002); Clark v. Johnson, 227 F.3d 273, 282-83 (5th Cir. 2000), cert. denied, 531 U.S. 1167 (2001). Tactical decisions when supported by the circumstances are objectively reasonable and do not amount to unconstitutionally deficient performance. Lamb v. Johnson, 179 F.3d 352, 358 (5th Cir. 1999), cert. denied, 528 U.S. 1013 (1999) (citing Rector v. Johnson, 120 F.3d 551, 564 (5th Cir. 1997) and Mann v. Scott, 41 F.3d 968, 983-84 (5th Cir. 1994)).

The issue of ineffective assistance of counsel is a mixed question of law and fact. Clark v. Thaler, 673 F.3d 410, 416 (5th Cir. 2012); Woodfox v. Cain, 772 F.2d 358, 369 (5th Cir. 2014). Thus, under the AEDPA, the question before this court is whether the state courts' denial of relief was contrary to or an unreasonable application of United States Supreme Court precedent.

As discussed above, there is no factual support for Pennington's assertion that a writ application was pending when his trial commenced. Pennington's counsel did not file a writ application in the Louisiana First Circuit for pretrial review of the trial court's denial of the motion to suppress.27 His counsel had nothing to wait for and no reason to object to trial proceeding when it began.

Pennington has not asserted in the state courts or in this federal court that it was error for his counsel not to file a pretrial writ application. Nevertheless, any such claim would be meritless.28 As discussed above, Pennington received all required constitutional warnings and notice of his rights before his waiver of those rights and his inculpatory statement to police. He has not established that denial of the motion to suppress or the admission of his statement was unconstitutional or violated his constitutional rights in any manner that would have kept the statement out of his trial. For this reason, counsel was not ineffective in failing to seek meritless review in the state appellate court before trial. Johnson v. Cockrell, 306 F.3d 249, 255 (5th Cir. 2002) (counsel is not required to make futile motions or frivolous objections); Smith v. Puckett, 907 F.2d 581, 585 n.6 (5th Cir. 1990) ("Counsel is not deficient for, and prejudice does not issue from, failure to raise a legally meritless claim."); Koch v. Puckett, 907 F.2d 524, 527 (5th Cir. 1990) ("counsel is not required to make futile motions or objections.").

The denial of relief on this issue was not contrary to or an unreasonable application of Strickland. Pennington is not entitled to relief on this claim.

VII. RULING ON MOTION TO QUASH (CLAIM NO. 4)

Pennington claims that he was denied due process and equal protection because the state trial court failed to rule on his motion to quash, which had been postponed until after trial ended. The state courts denied relief on this claim on post-conviction review, finding that various motions to quash had been addressed before trial and otherwise were rendered moot by the amendment to the indictment.

Claims of denial of due process and equal protection under habeas law present mixed questions of law and fact. See Wilkerson v. Cain, 233 F.3d 886, 890 (5th Cir. 2000); Woodfox, 772 F.2d at 369. Thus, this court must determine whether the state courts' denial of relief was contrary to or an unreasonable application of federal law.

The record contains four motions to quash filed by Pennington's counsel well before trial: motion to quash based on the use of a short form indictment;29 motion to quash based on discrimination in the grand jury composition;30 motion to quash based on discrimination in the grand jury foreperson selection;31 and motion to quash the indictment seeking the death penalty with an unconstitutional execution method.32 The state trial court denied the motion to quash based on the short form indictment at a May 1, 2008, hearing.33 The court denied the two motions to quash based on grand jury discrimination during the April 21, 2010, hearing.34 At a hearing on March 23, 2010, the state trial court denied as premature the last motion to quash based on the death penalty execution method.35 The court discussed with counsel that the motion could be re-urged after trial depending on the outcome of the case, but the motion was denied and not deferred until after trial.

Thus, contrary to Pennington's argument, the state trial court in fact ruled on all four of the motions to quash before trial. In addition, as noted by the state courts, the motion to quash based on the death penalty execution method was rendered moot by the amendment of the charge on September 24, 2010, to second degree murder, which does not carry the death penalty. For these reasons, Pennington has not shown that he was denied a constitutional right related to the state trial court's rulings on the motions to quash, especially the motion to quash that was denied as premature. There simply was no further ruling necessary from the state trial court on the issue of the death penalty, which was no longer relevant to his case. Without establishing some constitutional error, Pennington has not presented a cognizable federal habeas claim or established that the denial of relief on this issue was contrary to or an unreasonable application of federal law. He is not entitled to relief on this claim.

RECOMMENDED

For the foregoing reasons, it is RECOMMENDED that Pennington's petition for issuance of a writ of habeas corpus under 28 U.S.C. § 2254 be DENIED and 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 un objected-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. Douglass v. United Servs. Auto. Ass'n, 79 F.3d 1415, 1430 (5th Cir. 1996) (en banc) (citing 28 U.S.C. § 636(b)(1)).36