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, Bernard Verrett, is a convicted inmate currently incarcerated at the Louisiana State Penitentiary in Angola, Louisiana. On November 18, 2010, he was charged by bill of indictment with second-degree murder.
On direct appeal, he assigned as his sole ground for error that the evidence was not sufficient to support a conviction for second-degree murder. On December 27, 2013, the Louisiana First Circuit Court of Appeal affirmed his conviction and sentence.
On September 2, 2015, Verrett submitted an application for post-conviction relief to the state district court.
On January 14, 2019, Verrett filed his federal application for habeas corpus relief asserting the same three claims for relief asserted in his post-conviction relief proceedings.
The Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA") generally requires that a petitioner bring his Section 2254 claims within one year of the date on which his underlying criminal judgment becomes "final."
Butler v. Cain, 533 F.3d 314, 317 (5th Cir. 2008) (emphasis added).
The Louisiana Supreme Court denied Verrett's application for writ of review associated with his direct appeal on June 20, 2014. Accordingly, for purposes of the AEDPA, his conviction became final, and his federal limitations period therefore commenced, 90 days later, on September 18, 2014. The federal limitations period expired one year later, unless that deadline was extended through tolling.
Regarding statutory tolling, the AEDPA expressly provides that "[t]he 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). After 348 days elapsed, Verrett tolled his federal limitations period by filing a post-conviction application with the state district court on September 2, 2015. Tolling then continued uninterrupted for the duration of the post-conviction proceedings, so long as he sought supervisory review in a timely manner. Grillette v. Warden, Winn Correctional Center, 372 F.3d 765, 769-71 (5th Cir. 2004).
In this case, the State argues that tolling ceased when Verrett's first writ application filed with the Louisiana First Circuit Court of Appeal was considered defective because he failed to attach all pertinent supporting documentation.
The State does not allege that the subsequent supervisory writ applications filed with the Louisiana First Circuit or the Louisiana Supreme Court were untimely or otherwise defective. Thus, giving statutory tolling credit for each of Verrett's post-conviction filings from September 2, 2015 through January 8, 2019, his federal application filed on January 14, 2019, was timely. The Court will therefore consider his claims on the merits.
On direct appeal, the Louisiana First Circuit briefly summarized the facts adduced at trial:
Title 28 U.S.C. § 2254(d)(1) and (2), as amended by The Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), provides the applicable standards of review for pure questions of fact, pure questions of law, and mixed questions of both. A state court's purely factual determinations are presumed to be correct and a federal court will give deference to the state court's decision unless it "was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding." 28 U.S.C. § 2254(d)(2); see also 28 U.S.C. § 2254(e)(1) ("In a proceeding instituted by an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State court, a determination of a factual issue made by a State court shall be presumed to be correct. The applicant shall have the burden of rebutting the presumption of correctness by clear and convincing evidence."). With respect to a state court's determination of pure questions of law or mixed questions of law and fact, a federal court must defer to the decision on the merits of such a claim unless that decision "was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States." 28 U.S.C. § 2254(d)(1).
The "`contrary to' and `unreasonable application' clauses [of § 2254(d)(1)] have independent meaning." Bell v. Cone, 535 U.S. 685, 694 (2002). A state-court decision is "contrary to" clearly established precedent if the state court applies a rule that contradicts the governing law set forth in the United States Supreme Court's cases or if the state court confronts a set of facts that are materially indistinguishable from a decision of the United States Supreme Court and nevertheless arrives at a result different from United States Supreme Court precedent. Williams v. Taylor, 529 U.S. 362, 405-06 (2000); Wooten v. Thaler, 598 F.3d 215, 218 (5th Cir.), cert. denied, 131 S.Ct. 294 (2010). An "unreasonable application" of [United States Supreme Court] precedent occurs when a state court "identifies the correct governing legal rule ... but unreasonably applies it to the facts of the particular state prisoner's case." Williams, 529 U.S. at 407-08; White v. Woodall, 134 S.Ct. 1697, 1706 (2014).
It is well-established that "an unreasonable application is different from an incorrect one." Bell, 535 U.S. at 694. A state court's merely incorrect application of Supreme Court precedent simply does not warrant habeas relief. Puckett v. Epps, 641 F.3d 657, 663 (5th Cir. 2011) ("Importantly, `unreasonable' is not the same as `erroneous' or `incorrect'; an incorrect application of the law by a state court will nonetheless be affirmed if it is not simultaneously unreasonable."). "[E]ven a strong case for relief does not mean the state court's contrary conclusion was unreasonable" under the AEDPA. Harrington v. Richter, 562 U.S. 86, 102 (2011). Section 2254(d) preserves authority to issue the writ in cases where there is "no possibility fairminded jurists could disagree that the state court's decision conflicts with [United States Supreme Court] precedents." Id. (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.").
Verrett asserts generally that trial counsel was constitutionally ineffective for failing to perform adequate pretrial discovery and investigation, interview and call witnesses, use all available evidence and witnesses, secure a qualified expert to discuss the effects of intoxication on the formation of specific intent, and present a viable defense.
Verrett raised the ineffective-assistance claim in his application for post-conviction relief. The state district court reviewed and denied the claim under Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). The Louisiana First Circuit denied his supervisory writ application without stated reasons. The Louisiana Supreme Court denied his related writ application finding he failed to establish ineffective assistance of counsel under the standard of Strickland v. Washington.
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).
To prevail on the prejudice prong of the Strickland test, a petitioner "must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland, 466 U.S. at 694. In this context, a reasonable probability is "a probability sufficient to undermine confidence in the outcome." Id. In making a determination as to whether prejudice occurred, courts must review the record to determine "the relative role that the alleged trial errors played in the total context of [the] trial." Crockett, 796 F.2d at 793.
The United States Supreme Court has held that, under the AEDPA, federal habeas corpus review of ineffective assistance of counsel claims must be "doubly deferential" in order to afford "both the state court and the defense attorney the benefit of the doubt." Burt v. Titlow, 571 U.S. 12 (2013) (quoting Cullen v. Pinholster, 563 U.S. at 190). In Harrington v. Richter, 562 U.S. 86, 101 (2011), the Supreme Court discussed the highly deferential standard of review applicable to an ineffective-assistance claim:
Id. at 105 (citations omitted; emphasis added).
Because the state courts rejected his ineffective-assistance 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). For the following reasons, the state courts' determination was neither contrary to, nor an unreasonable application of, clearly established federal law.
Verrett maintains generally that defense counsel failed to prepare sufficiently to present a viable defense, such as intoxication, that would negate the specific-intent element of the crime. Under Louisiana law, intoxication is a defense to a prosecution for second-degree murder if the circumstances indicate the intoxication, whether voluntary or involuntary, precludes the presence of specific criminal intent. La. Rev. Stat. § 14:15(2). When defenses that could defeat an essential element of an offense, such as intoxication, are raised by the evidence, the State must overcome the defense by evidence that proves beyond a reasonable doubt that the mental element was present despite the alleged intoxication. State v. Bland, 2015-1662 (La. App. 1st Cir. 4/20/16), 194 So.3d 679, 683.
Contrary to Verrett's assertions, the record shows that trial counsel investigated and pursued a voluntary intoxication defense on Verrett's behalf. He fought vigorously for funding to obtain an expert witness for the defense who was willing to testify regarding the effects of substance abuse, particularly steroids and alcohol, on individuals. The record shows that he made repeated unsuccessful requests for funding sufficient to retain a doctor with a certain level of expertise.
Notwithstanding this, the voluntary intoxication defense was still presented at trial, through multiple lay witnesses, regarding Verrett's consumption of alcohol and his intoxicated state at the time in question, and the defense submitted a special jury charge on voluntary intoxication.
Despite defense counsel's efforts, the amount of funding requested for the level of expertise purportedly warranted by the defense was rejected. The record evidence supporting the alleged need for the expert was detailed at the hearing on the motion to allow expert testimony.
Even if the failure to secure a qualified expert witness could be attributed in part to counsel and somehow be construed as deficient performance, no prejudice resulted such that "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." The state courts reasonably rejected his suggestion that the expert testimony about adverse psychological effects from substance abuse might have persuaded the jury that he could not be guilty of second-degree murder. Here, the defense was still able to and did present an intoxication defense at trial without expert witness testimony. Detective Daigre testified that Verrett detailed how he had been drinking the night of the incident.
For these reasons, the state courts' denial of relief on his claim of ineffective assistance of counsel was not contrary to or an unreasonable application of Strickland. He is not entitled to federal habeas corpus relief on this claim.
Verrett claims that he did not receive a fair trial because he was denied adequate funding to secure expert witnesses, namely a psychiatrist and a forensic analyst, contrary to the Supreme Court's ruling in Ake v. Oklahoma, 470 U.S. 68 (1985). He claims that he lacked the necessary funding to present an adequate defense in violation of his due process rights. He argues that "[t]he Ake error prevented [him] from developing his own psychiatric evidence to rebut the State's evidence and to enhance his defense in mitigation."
The state district court denied the post-conviction claim finding that the absence of the expert testimony did not deny him a fair trial. The court of appeal and the Louisiana Supreme Court likewise denied the claim without additional stated reasons.
"[W]hen a State brings criminal proceedings against an indigent defendant, it must take steps to ensure that the accused has a meaningful opportunity to present a defense." Johnson v. Oklahoma, 484 U.S. 878, 879-80 (1987) (Marshall, J., dissenting) (citing Douglas v. California, 372 U.S. 353 (1963) and Griffin v. Illinois, 351 U.S. 12 (1956)). "[A] criminal trial is fundamentally unfair if the State proceeds against an indigent defendant without making certain that he has access to the raw materials integral to the building of an effective defense." United States v. Snarr, 704 F.3d 368, 404-05 (5th Cir. 2013) (quoting Ake v. Oklahoma, 470 U.S. 68, 77, 105 S.Ct. 1087, 84 L.Ed.2d 53 (1985)).
However, the United States Supreme Court recognizes only limited instances where due process requires that an indigent defendant have access to an expert witness. In Ake, the Supreme Court held that "when a defendant demonstrates to the trial judge that his sanity at the time of the offense is to be a significant factor at trial, the State must, at a minimum, assure the defendant access to a competent psychiatrist who will conduct an appropriate examination and assist in evaluation, preparation and presentation of the defense." Ake, 470 U.S. at 83. The Supreme Court cautioned that the right of access to an expert does not mean "that the indigent defendant has a constitutional right to choose a psychiatrist of his personal liking or to receive funds to hire his own." Id.
Notably, the Supreme Court has not explicitly extended the holding with regard to requests for non-psychiatric experts. Johnson v. Oklahoma, 484 U.S. 878, 880 (1987) (Marshall, J, dissenting) (citing Caldwell v. Mississippi, 472 U.S. 320, 323 n. 1 (1985). In Caldwell, the Supreme Court declined to reach the issue raised by Caldwell that other types of expert witnesses on issues other than sanity may be constitutionally required because the petitioner did not present a strong enough case to warrant such experts. Caldwell, 472 U.S. at 323 n. 1 ("Given that petitioner offered little more than undeveloped assertions that the requested assistance would be beneficial, we find no deprivation of due process in the trial judge's decision [denying appointment of a criminal investigator, a fingerprint expert, and a ballistics expert]. Cf. Ake v. Oklahoma, 470 U.S. 68, 82-83, 105 S.Ct. 1087, 1096-1097, 84 L.Ed.2d 53 (1985) (discussing showing that would entitle defendant to psychiatric assistance as matter of federal constitutional law). We therefore have no need to determine as a matter of federal constitutional law what if any showing would have entitled a defendant to assistance of the type here sought.")); see also Brown v. Cain, Civ. Action No. 11-2267, 2011 WL 7042222, at *24 (E.D. La Dec. 20, 2011), recommendation adopted 2012 WL 123288 (2012) (petitioner failed to establish that counsel was deficient in failing to request Ake funds to secure a non-psychiatric expert or investigator to assist in presenting a self-defense claim).
With regard to non-psychiatric expert witnesses, the United States Fifth Circuit Court of Appeals has explained:
United States v. Snarr, 704 F.3d at 404-05. In Snarr, the court of appeals stated that a showing of reversible error based on inadequate funding for experts requires that a defendant "establish a reasonable probability that the requested experts would have been of assistance to the defense and that denial of such expert assistance resulted in a fundamentally unfair trial." Id.
Verrett contends he was entitled to an independent expert psychiatrist under Ake. However, he has failed to show that the state-court determination regarding the denial of adequate funding for the assistance of a requested psychiatric expert witnesses for his defense of intoxication, was contrary to or an unreasonable application of Ake. Unlike Ake, Verrett did not show that his sanity at the time of the commission of the offense would be a "significant factor" at trial. His mental competence was not an issue at trial. Instead, he sought the expert psychiatric testimony to bolster his defense that his voluntary intoxication or other significant impairment from depression or steroid use precluded him from forming the specific intent necessary for second-degree murder. See Brancaccio v Warren, Civ. Action 08-14116, 2011 WL 1812200, at *18 (E.D. Mich. March 29, 2011), recommendation adopted 2011 WL 1810147 (defense of intoxication to negate specific-intent crime is not one of legal insanity governed by Ake); Miller v. Bell, 655 F.Supp.2d 838, 851 (E.D. Tenn. Sept. 10, 2009).
Nor did Verrett place his sanity at issue by offering his own unsupported statements that he abused steroids and alcohol to advance his intoxication defense. Here, there was absolutely no objective evidence to show that Verrett suffered from clinical depression or stress. Moreover, as his proposed expert, Dr. Kent, acknowledged during the pretrial motion hearing, there was no record evidence other than Verrett's own general claims of steroid usage and estimated consumption of alcohol upon which to base an expert opinion.
As for his inability to obtain funding to secure a forensic expert witness, the state-court determination could not be contrary to, or an unreasonable application of, Ake. The Supreme Court in Ake did not hold that an indigent defendant is entitled to other types of experts, such as forensic or other non-psychiatric expert witnesses, or even what circumstances, if any, would entitle an indigent defendant to non-psychiatric expert assistance as a matter of federal constitutional law. Caldwell, 472 U.S. at 323 n. 1.
Furthermore, the state courts correctly found that Verrett failed to demonstrate a reasonable probability that the experts he requested would aid in his defense of intoxication or other significant mental impairment to show he lacked the requisite specific intent or that the denial of the expert witnesses resulted in an unfair trial. As the state district court reasoned, "the uncontradicted evidence in this case was to the effect that immediately after stabbing his wife eighteen times, the defendant did not contact the police, but instead fled, lied to everyone about her whereabouts, and tried to cover up and destroy evidence. Under these circumstances, it is highly unlikely that expert evidence would have persuaded the jury that he lacked the requisite intent to commit the crime of second degree murder."
Moreover, as previously discussed, there were no tests conducted as to Verrett's blood alcohol content around the time of the murder and his children's testimony as to their observations of Verrett contradicted his intoxication theory and tended to disprove that he was so intoxicated that he could not have formed the requisite intent. The State's forensic expert was available for cross-examination at trial regarding the autopsy results. No defense forensic expert was proven necessary under the circumstances. Verrett has not demonstrated that the expert was "reasonably necessary" to his defense. Caldwell, 472 U.S. at 323 n. 1. He also failed to establish that he was denied a fundamentally fair trial based on inadequate funding for the expert.
For these reasons, Verrett fails to demonstrate that the state-court determination denying relief on this claim was either contrary to or an unreasonable application of federal law as established by the Supreme Court.
Verrett claims that he was denied due process and a fair trial when the trial court denied his motion for a change of venue.
The "original reasons" the post-conviction court referred to in denying the post-conviction claim, as set forth previously by the trial court in denying the motion for change of venue, were as follows:
For the following reasons, the state-court decision rejecting the post-conviction claim for relief was not an unreasonable application of, nor contrary to, clearly established federal law. Nor was the state-court decision based on an unreasonable determination of the facts in light of the evidence presented.
"The Sixth Amendment guarantees a defendant's right to trial before an impartial jury." Murray v. Schriro, 882 F.3d 778, 802 (9th Cir. 2018) (citing Skilling v. United States, 561 U.S. 358, 377 (2010)); U.S. Const. amend VI ("In all criminal prosecutions, the accused shall enjoy the right to a ... trial, by an impartial jury...."). "Because `trial by jury in criminal cases is fundamental to the American scheme of justice,' the Due Process Clause of the Fourteenth Amendment guarantees the same right in state criminal prosecutions." Nebraska Press Assn. v. Stuart, 427 U.S. 539, 551 (1976) (quoting Duncan v. Louisiana, 391 U.S. 145, 149, 88 S.Ct. 1444, 1447, 20 L.Ed.2d 491 (1968)). A criminal defendant's right to a fair trial is an essential part of our system of justice. Nebraska Press Assn. v. Stuart, 427 U.S. at 551 (citing In re Murchison, 349 U.S. 133, 136, 75 S.Ct. 623, 625, 99 S.Ct. 942 (1955)).
Trial courts have the duty to ensure that media coverage does not affect the fairness of the proceeding. Sheppard v. Maxwell, 384 U.S. 333, 362-63 (1966). A defendant may request a "transfer of the proceeding to a different district ... if extraordinary local prejudice will prevent a fair trial—a basic requirement of due process." Skilling v. United States, 561 U.S. 358, 378, 130 S.Ct. 2896, 177 L.Ed.2d 619 (2010) (quotations and citation omitted). "Juror exposure to news reports of a crime—even `pervasive, adverse publicity'—is not enough alone to trigger a presumption of prejudice to the defendant's due process rights." Murray v. Schriro, 882 F.3d at 802 (quoting Skilling, 561 U.S. at 382-84) ("describing the `vivid, unforgettable' and `blatantly prejudicial' information at issue in the handful of cases in which the Supreme Court has presumed prejudice from pretrial publicity") (citations omitted). Rather, a presumption of prejudice "attends only the extreme case." Skilling, 561 U.S. at 381, 130 S.Ct. at 2915; see also Rideau v. Louisiana, 373 U.S. 723, 726-27 (1963) (where a defendant brings forth evidence of inflammatory and prejudicial pretrial publicity that so pervades the community so as to render virtually impossible a fair trial by an impartial jury drawn by that community, jury prejudice is presumed and there is no further duty to establish bias). Otherwise, a state defendant who seeks relief stemming from pretrial publicity impacting jury selection must demonstrate an actual, identifiable prejudice on the part of members of the jury that is attributable to the publicity. See Moore v. Johnson, 225 F.3d 495, 504 (5th Cir. 2000) (citing Willie v. Maggio, 737 F.2d 1372, 1386 (5th Cir. 1984)); Logan v. Cain, Civ. Action No. 11-2381, 2013 WL 3293659, at *9-10 (E.D. La June 28, 2013).
Verrett claims that he could not get a fair trial because "this case was widely published and known by the members of the city.... [t]he jury members were so familiar with the case that they were sharing information from their phones concerning the case."
In this case, the jury venire was made up of 45 venirepersons split into three panels of 15 prospective jurors. Of the 45 members, a total of 12 individuals had heard or read something about the murder. The trial court, along with the prosecutor and defense counsel, interviewed each of those 12 venirepersons separately and individually, asking pointed questions as to what specific details they possessed, where they learned the details, and the impact, if any, the independent knowledge had on their ability to weigh the evidence presented at trial.
Nor has he established on these facts a violation of due process based upon actual prejudice during jury selection stemming from pretrial publicity. Notably, Verrett does not reference any specific prejudice or bias possessed by any individual juror. The prospective jurors who were vaguely familiar with the case through the media overwhelmingly stated they would not be influenced by their general knowledge and would be able to base their judgment on the evidence presented at trial. The few who had greater contacts with individuals who were in any way connected to the murder and possessed knowledge about the case were excused for cause.
Finally, Verrett has not shown juror impartiality based on the victim's family contacts in the parish. Verrett offers nothing specific underlying his assertion. The record itself demonstrates that only one prospective juror was even familiar with the victim or her family.
For these reasons, Verrett has not demonstrated that the state-court rejection of his claim was based on an unreasonable determination of the facts in light of the evidence presented in the state-court proceedings. The state-court decision was neither contrary to, nor an unreasonable application of, Supreme Court precedent. Accordingly, Verrett is not entitled to federal habeas corpus relief on this claim.
Verrett claims that he was denied a fair trial due to cumulative error, i.e., "the combined effect of the errors presented herein, which is the blatant ineffective assistance of counsel rendered prior to and during trial of this matter which is more aptly described as a constructive denial of counsel."
For the foregoing reasons, it is
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).
