STEPHEN C. RIEDLINGER, Magistrate Judge.
Before the court on the Petition Under 28 U.S.C. § 2254 for Writ of Habeas Corpus by a Person in State Custody filed by Herman Pierre.
For the reasons which follow, the petition should be denied.
Petitioner was found guilty of one count simple burglary in the Nineteenth Judicial District Court for East Baton Rouge Parish, Louisiana on May 30, 2007. Petitioner was adjudicated a third felony habitual offender and was sentenced to life imprisonment without parole, probation or suspension of sentence.
On direct appeal the petitioner asserted the following assignments of error.
The Louisiana First Circuit Court of Appeal affirmed the petitioner's conviction, habitual offender adjudication and sentence. State of Louisiana v. Herman Pierre, 2008-1668 (La. App. 1st Cir. 2/13/09); 5 So.3d 314 (Table).
Petitioner signed an application for post-conviction relief ("PCRA") on May 27, 2010, and it was filed in the trial court on June 2, 2010. Petitioner asserted the following grounds for relief.
On September 13, 2011, the trial court denied the petitioner's PCRA. Petitioner sought review in the Louisiana First Circuit Court of Appeal. The application was signed on October 12, 2011 and filed on October 14, 2011. The Louisiana First Circuit Court of Appeal denied review on January 17, 2012. State of Louisiana v. Herman Pierre, 2011-1927 (La. App. 1st Cir. 1/17/12).
Petitioner sought review in the Louisiana Supreme Court. The application was signed on February 15, 2012, mailed from the prison on February 20, 2012 and filed on February 24, 2012. The Louisiana Supreme Court denied review on September 12, 2012. State ex rel. Herman Pierre v. State of Louisiana, 2012-0445 (La. 9/14/12), 97 So.3d 1012.
Petitioner signed his federal habeas corpus application on January 14, 2013, and it was filed on January 17, 2013.
Petitioner asserted the following six grounds for relief.
The respondent argued that the petitioner's federal habeas corpus application is untimely.
Under § 2244(d), as amended by the Antiterrorism and Effective Death Penalty Act, a prisoner in custody pursuant to the judgment of a state court has a one year period within which to file an application for a writ of habeas corpus. The limitation period runs from the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review. 28 U.S.C. § 2244(d)(1)(A).
As provided by § 2254(d)(2), 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. A "properly filed application" is one submitted according to the state's procedural requirements, such as the rules governing the time and place of filing. Lovasz v. Scig, 134 F.3d 146, 148-49 (3rd Cir. 1998); Galindo v. Johnson, 19 F.Supp.2d 697, 701 (W.D. Tex. 1998). A court must look to state law to determine whether a state habeas application conforms to the state's procedural filing requirements. Wion v. Quarterman, 567 F.3d 146, 148 (5th Cir. 2009).
A state application is "pending" during the intervals between the state court's disposition of a state habeas corpus petition and the petitioner's timely filing of petition of review at the next level. Melancon v. Kaylo, 259 F.3d 401, 406 (5th Cir. 2001). An application ceases to be "pending" within the meaning of § 2244(d)(2) when the petitioner fails to timely file an application for supervisory review at the next level. Id. at 407. A state court's subsequent decision to allow review may toll the time relating directly to the application, but it does not change the fact that the application was not pending prior to the application. Id. After the period for appeal or seeking discretionary review has lapsed, an application ceases to be pending, but a subsequent properly filed application entitles the petitioner to additional tolling beginning at the time of the "proper" filing. Id.
Petitioner's conviction became final on February 23, 2010.
From September 12, 2012, the date the Louisiana Supreme Court denied review, until January 14, 2013, the date the petitioner signed his federal habeas corpus application, 123 days of the limitations period elapsed. By the time the petitioner filed his federal habeas corpus application, 215 days of the limitations period had elapsed. Petitioner's federal habeas corpus application was timely filed.
Section 2254(d) provides as follows:
Section 2254(e)(1) provides as follows:
Subsection (d)(2) of § 2254 applies to a state court's factual determination. It bars federal court relief unless the state court adjudication of the claim "resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence." Subsection (d)(1) provides the standard of review for questions of law and mixed questions of law and fact. Drinkard v. Johnson, 97 F.3d 751, 767-68 (5th Cir. 1996), cert. denied, 520 U.S. 1107, 117 S.Ct. 1114 (1997).
The second clause of subsection (d)(1) refers to mixed questions of law and fact because it speaks of an "unreasonable application of ... clearly established Federal law." When the issue before the court is a mixed question of law and fact, the court may grant relief only if it determines that the state court decision rested on "an unreasonable application of ... clearly established Federal law, as determined by the Supreme Court," to the facts of the case. The first clause of subsection (d)(1) refers to questions of law. When the issue raised involves a purely legal question, the court may grant relief only if it determines that a state court's decision rested on a legal determination that was "contrary to ... clearly established Federal law, as determined by the Supreme Court." Id.
Review under § 2254(d)(1) is limited to the record that was before the state court that adjudicated the claim on the merits. Cullen v. Pinholster, ___ U.S. ___, ___, 131 S.Ct. 1388, 1399, 179 L.Ed.2d 557 (2011); McCamey v. Epps, 658 F.3d 491, 497 (5th Cir. 2011). Review under § 2254(d)(1) focuses on what a state court knew and did. Cullen v. Pinholster, 131 S.Ct. at 1399. "[E]vidence introduced in federal court has no bearing on § 2254(d)(1) review. If a claim has been adjudicated on the merits by a state court, a federal habeas corpus petitioner must overcome the limitation of § 2254(d)(1) based on the record that was before that state court." Id., at 1400. State court decisions are measured against the Supreme Court's precedents as of "the time the state court renders its decisions." Lockyer v. Andrade, 538 U.S. 63, 71-72, 123 S.Ct. 1166 (2003). Pinholster prohibits a federal court from using evidence that is introduced for the first time at a federal-court evidentiary hearing as the basis for concluding that a state court's adjudication is not entitled to deference under § 2254(d). Blue v. Thaler, 665 F.3d 647, 656 (5th Cir. 2011).
To determine whether a particular decision is "contrary to" then-established law, a federal court must consider whether the decision "applies a rule that contradicts [such] law" and how the decision "confronts [the] set of facts" that were before the state court. Williams v. Taylor, 529 U.S. 362, 405, 406, 120 S.Ct. 1495, 1519 (2000). If the state court decision "identifies the correct governing legal principle" in existence at the time, a federal court must assess whether the decision "unreasonably applies that principle to the facts of the prisoner's case." Id., at 413, 120 S.Ct. at 1523.
In Ground One the petitioner argued that the State failed to establish that the petitioner was the person convicted in No. 1368-89 in Iberville Parish, as charged in the habitual offender bill of information, in accordance with LSA-R.S. 15:529.1 and therefore violated his due process rights.
A federal habeas court may grant relief when the petitioner is held in custody pursuant to a judgment of a state court only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States. 28 U.S.C. § 2254(a). Federal courts will not review a state court's interpretation of its own law in a federal habeas corpus proceeding. Cook v. Morrill, 783 F.2d 593 (5th Cir. 1986).
Insofar as the foundation of the petitioner's habeas application rests on the proper interpretation and application of state jurisprudence and procedural rules, this is an issue not within the scope of federal habeas corpus.
Insofar as the petitioner argued that his federal due process rights were violated during his habitual offender hearing, the claim is technically exhausted but procedurally defaulted. Petitioner did not assert in state court a federal claim in conjunction with his habitual offender adjudication.
Congress provided that the writ of habeas corpus shall not be granted unless the petitioner has exhausted all remedies available in the court of the state that exercised custody over the petitioner. § 2254(b). Generally, the exhaustion requirement is satisfied if a claim has been presented once to the state's highest court. Carter v. Estelle, 677 F.2d 427, 442 n. 10 (5th Cir.), modified on other grounds, 691 F.2d 777 (5th Cir. 1982), cert. denied, 460 U.S. 1056, 103 S.Ct. 1508 (1983); see generally Richardson v. Procunier, 762 F.2d 429, 430-32 (5th Cir. 1985).
To demonstrate compliance with the exhaustion requirement, a habeas corpus applicant must show that the federal claim he asserts in federal court has been "fairly presented" to the state courts. Picard v. Connor, 404 U.S. 270, 275, 92 S.Ct. 509, 512 (1971). Generally, the applicant must present his claims before the state courts in a procedurally proper manner according to the rules of the state courts. Dupuy v. Butler, 837 F.2d 699 (5th Cir. 1988).
Although claims are considered to be "technically" exhausted when state relief is no longer available, without regard to whether the claims were actually exhausted by presentation to the state courts, Coleman v. Thompson, 501 U.S. 722, 731-33, 111 S.Ct. 2546 (1991), if a petitioner "fails to exhaust available state remedies and `the court to which the petitioner would be required to present his claims in order to meet the exhaustion requirement would find the claims procedurally barred,'" then the claim is procedurally defaulted. Nobles v. Johnson, 127 F.3d 409, 420 (5th Cir. 1997), cert. denied, 523 U.S. 1139, 118 S.Ct. 1845 (1998) (quoting Coleman, 501 U.S. at 735 n.1, 111 S.Ct. 2546).
Petitioner's unexhausted claim is "technically exhausted because, and only because, petitioner allowed his state law remedies to lapse without presenting his claims to the state courts." Jones v. Jones, 163 F.3d 285, 296 (5th Cir. 1998) (internal citation and quotation omitted). Petitioner's technically exhausted claim would be barred from consideration in a post-conviction relief application by Louisiana Code of Criminal Procedure Article 930.8. This provision of Louisiana law fixes a time limit of two years after the judgment of conviction and sentence has become final within which to file an application for post-conviction relief. Although the statute contains four exceptions, none of those exceptions apply in this case, and the petitioner has not offered any evidence or argument supporting the application of any exception.
When a state prisoner has defaulted his federal claims in state court pursuant to an independent and adequate state procedural rule, federal habeas review of the claim is barred unless the prisoner can demonstrate cause for the default and actual prejudice as a result of the alleged violation of federal law, or demonstrate that the failure to consider the claims will result in a fundamental miscarriage of justice. Coleman, 501 U.S. at 750, 111 S.Ct. at 2565. Reliance upon Article 930.8 has been held to be a valid procedural bar. Glover v. Cain, 128 F.3d 900 (5th Cir. 1997).
Petitioner has not shown cause for his procedural default, or actual prejudice resulting from it. Nor has the petitioner made a showing to support a claim of factual innocence. This court is barred from considering the petitioner's technically exhausted claim.
Even assuming that the petitioner exhausted an habitual offender adjudication claim based on a federal Due Process clause violation, the claim is nonetheless without merit.
Petitioner argued that the State failed to establish his identity as the person convicted of one of the predicate offenses listed in the habitual offender bill of information. Specifically, the petitioner argued that the State offered as proof of his 1989 conviction in Iberville Parish the bill of information and the minutes of the August 17, 1989 hearing which demonstrated that the petitioner was represented by counsel and that he entered a guilty plea. Petitioner argued that his fingerprints were not placed on the bill of information at the time of sentencing as is required by La.C.Cr.P. art. 871. Petitioner argued that no other documentation or testimony was offered to establish his identity, and no testimony was offered to explain the discrepancies between the information contained on the card itself and the testimony of the State's expert witness.
Prima facie proof of a prior conviction may be established by compliance with LSA-R.S. 15:529.1(F), but that is not the exclusive method; any competent evidence may be used to establish such proof. State v. Moten, 510 So.2d 55, 63 (La. App. 1st Cir. 1987). "Proof of identity can be established through a number of ways, including expert testimony matching the fingerprints of the accused with those in the record of the prior proceeding." State v. Lomax, 81 So.3d 788, 791 (La. App. 4th Cir. 2011). See State v. Payton, 810 So.2d 1127 (La. 2002) (discussing acceptable forms of proof).
The Louisiana First Circuit Court of Appeal made the following factual findings regarding the sufficiency of the evidence related to the petitioner's habitual offender status.
Pierre, at 5-7.
Section 529.1 (D)(1)(b) states that "the district attorney shall have the burden of proof beyond a reasonable doubt of any issue of fact." The constitutional sufficiency of the evidence standard of Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781 (1979), most often applied to test convictions, asks whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. The Jackson standard has been applied in at least some habeas challenges to the sufficiency of the evidence in an habitual offender hearing. Warfield v. Warden, 2012 WL 3067604 (W.D. La. 2012); French v. Estelle, 692 F.2d 1021 (5th Cir. 1982).
Assuming the Jackson standard applies to review of the sufficiency of the evidence to support an habitual offender adjudication, the State met the standard in this case.
In Ground Two the petitioner argued that his conviction was obtained in violation of his Fourth Amendment right against unreasonable searches and seizures because there was no probable cause to arrest him. Petitioner argued that because he was illegally detained the exclusionary rule should have applied to his post-detention statements.
Fourth Amendment violations are generally not cognizable on federal habeas review. Stone v. Powell, 428 U.S. 465, 96 S.Ct. 3037 (1976). In Stone v. Powell, the Supreme Court held that "where the State has provided an opportunity for full and fair litigation of a Fourth Amendment claim, a state prisoner may not be granted federal habeas corpus relief on the ground that evidence obtained in an unconstitutional search or seizure was introduced at trial." Id. at 494, 96 S.Ct. at 3052. The Fifth Circuit has interpreted an "opportunity for full and fair litigation" to mean just that: "an opportunity." Caver v. Alabama, 577 F.2d 1188, 1192 (5th Cir. 1978). "If a state provides the processes whereby a defendant can obtain full and fair litigation of a fourth amendment claim, Stone v. Powell bars federal habeas corpus consideration of that claim whether or not the defendant employs those processes." Id.
Petitioner had an opportunity to raise his unlawful search and seizure claim in a motion to suppress evidence, and he did so. Petitioner filed a Motion to Suppress and a hearing on the motion was held on May 30, 2007.
In Grounds Three through Six the petitioner argued that he was denied effective assistance of counsel.
Section 2254(d) applies to the petitioner's ineffective assistance of counsel claims because those claims were adjudicated on the merits in state-court proceedings.
Petitioner did not specifically argue that the state court's determination of his ineffective assistance of counsel claim was contrary to, or involved an unreasonable application of, clearly established federal law, namely Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064 (1984).
To obtain habeas relief based upon a claim of ineffective assistance of counsel, the petitioner must show "that counsel's performance was deficient" and "that the deficient performance prejudiced the defense." Strickland, 466 U.S. at 687, 104 S.Ct. at 2064. To prove deficient performance the petitioner must demonstrate that counsel's actions "fell below an objective standard of reasonableness." Id., at 688, 104 S.Ct. at 2064. 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," id., at 694, 104 S.Ct. at 2068, and that "counsel's deficient performance render[ed] the result of the trial unreliable or the proceeding fundamentally unfair." Lockhart v. Fretwell, 506 U.S. 364, 372, 113 S.Ct. 838, 844 (1983). "A reasonable probability is a probability sufficient to undermine confidence in the outcome," Strickland, 466 U.S. at 694, 104 S.Ct. at 2068; that probability requires a "substantial," not just "conceivable," likelihood of a different result, Harrington v. Richter, 562 U.S. 86, ___, 131 S.Ct. 770, 792 (2011).
Habeas review of an ineffective assistance of counsel claim is "doubly deferential," Knowles v. Mirzayance, 556 U.S. 111, 112, 129 S.Ct. 1411 (2009), requiring a "highly deferential" look at counsel's performance, Strickland, supra, at 689, 104 S.Ct. at 2065, through § 2254(d)'s "deferential lens," Mirzayance, supra, at 121, n. 2, 1419 n. 2.
In Ground Three the petitioner argued that counsel was ineffective when he failed to file a timely pretrial motion to suppress the petitioner's statements to police after the illegal custodial arrest.
Contrary to the petitioner's assertion, counsel did file a Motion to Suppress which was considered and denied by the trial court.
In Ground Four the petitioner argued that counsel was ineffective when he failed to object to the admission of a police report which was not produced during discovery. Specifically, the petitioner argued that counsel failed to object to the introduction of a police report which indicated that the petitioner acknowledged that he may have committed the burglary of an automobile in the CVS pharmacy parking lot.
As previously noted, a hearing was held on the petitioner's Motion to Suppress his statement to police.
When the State called Det. Canning as a witness, petitioner's counsel objected to the introduction of testimony related to the report on grounds that it was not provided to the defense during discovery.
Counsel was not deficient for failing to object to the admission of the police report involving the CVS pharmacy burglary because that report was provided during discovery.
To the extent the petitioner argued that counsel was deficient for failing to object to the admission of the police report pertaining to the burglary of the Tahoe at the LSU lakes, which report was produced following the hearing on the Motion to Suppress, the claim is without merit. First, counsel did object to the introduction of that report. Second, even if counsel were somehow deficient, the petitioner cannot prove that he was prejudiced. Although the petitioner was charged with six counts of burglary, he was only found guilty of Count Five, the burglary in the CVS pharmacy parking lot.
In addition, the petitioner argued that the prosecutor engaged in prosecutorial misconduct when he failed to disclose the police report (regarding the LSU lakes burglary) until trial. Because the petitioner was not convicted of the LSU lakes burglary, and the introduction of that report had no bearing on the petitioner's conviction for the CVS pharmacy burglary, he cannot establish a due process violation.
In Ground Five the petitioner argued that counsel was ineffective when he failed to impeach the testimony of Chastity Christy and Jacqueline Scott based on alleged inconsistencies between the summaries of their statements contained in the initial police report and their testimony at trial.
There was only one minor inconsistency between Christy's trial testimony
Even assuming that counsel was deficient for failing to use these bits of inconsistent testimony to impeach Christy and Scott, given the considerable evidence at trial of the petitioner's burglary of Christy's vehicle in the CVS pharmacy parking lot, the petitioner failed to demonstrate the prejudice required to sustain this component of his ineffective assistance of counsel claim.
In Ground Six the petitioner argued that counsel was ineffective when he failed to object to the hearsay testimony elicited from Det. Derek Moore. The gist of the petitioner's argument is that trial counsel failed to make a Confrontation Clause objection to the testimony pursuant to Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354 (2004).
Specifically, the petitioner argued that trial counsel failed to object to an exchange in which Det. Moore testified that officer Anderson contacted him by police radio to advise that an off-duty fireman flagged him down and reported seeing a subject exit a white van and walk around the Audubon Post Office parking lot, carrying a crowbar and looking into vehicles.
The Confrontation Clause states that "[i]n all criminal prosecutions, the accused shall enjoy the right ... to be confronted with the witnesses against him." U.S. Const. amend. VI. The Confrontation Clause bars the "admission of testimonial statements of a witness who did not appear at trial unless he was unavailable to testify and the defendant had had a prior opportunity for cross-examination." Crawford v. Washington, 541 U.S. at 53-54, 124 S.Ct. at 1365. While its protections are strong, "[t]he [Confrontation] Clause ... does not bar the use of testimonial statements for purposes other than establishing the truth of the matter asserted." Id. at 59, n. 9, 124 S.Ct. at 1369, n. 9. (citing Tennessee v. Street, 471 U.S. 409, 414, 105 S.Ct. 2078 (1985)).
What is or is not hearsay evidence in a state court trial is governed by state law. Gochicoa v. Johnson, 118 F.3d 440, 445 (5th Cir. 1997). "Hearsay is a statement, other than one made by the declarant while testifying at the present trial or hearing, offered in evidence to prove the truth of the matter asserted." LSA-C.E. art. 801(C).
Det. Moore's statement was not testimonial hearsay evidence. Det. Moore's testimony regarding the description of the incident reportedly underway in the Audubon Post Office parking lot was not offered to prove the truth of the matter asserted, but instead, was offered to explain the action taken by Det. Moore and the basis for his action. Because Det. Moore's statement was not testimonial hearsay evidence, trial counsel was not deficient for failing to make a Crawford objection.
Even assuming that Det. Moore's statement was testimonial hearsay evidence and trial counsel was deficient for failing to raise a Crawford objection, given the considerable evidence at trial of the petitioner's burglary of the vehicle in the CVS pharmacy parking lot, he failed to demonstrate the prejudice required for an ineffective assistance of counsel claim.
It is the recommendation of the magistrate judge that the Petition Under 28 U.S.C. § 2254 for Writ of Habeas Corpus by a Person in State Custody filed by Herman Pierre be denied.
It is further recommended that a certificate of appealability be denied for the reasons set forth herein.
