PATRICK J. HANNA, Magistrate Judge.
Dannon Keith Sellers is an inmate in the custody of Louisiana's Department of Public Safety and Corrections. He is incarcerated at the Winn Correctional Center in Winnfield, Louisiana, serving a ten year sentence imposed following his 2009 conviction in the 16
This matter was referred to the undersigned for report and recommendation in accordance with the provisions of 28 U.S.C. § 636 and the standing orders of this Court. For the following reasons, it is recommended that the petition be DISMISSED WITH PREJUDICE.
On January 11, 2008, Detective Jennifer Hebert filed a complaint affidavit (Rec. Doc. 34-1 at 5), in which she detailed the results of her investigation into allegations that twenty-four-year-old Dannon Sellers had raped his eleven-year-old half-sister. In the affidavit, Detective Hebert explained that an anonymous caller telephoned the St. Martin Parish Sheriff's Office on January 10, 2008 and advised that a female juvenile was possibly being sexually abused by the juvenile's brother. Detective Hebert went to the place where the abuse was allegedly taking place and interviewed an informant. The next day, the alleged victim was interviewed at the St. Martin Parish Sheriff's Office. The victim gave details of three specific instances in which she claims that Sellers raped her: one that occurred when she was four years old, one that occurred during the first week of December 2007, and one that occurred on December 29, 2007. In her affidavit, Detective Hebert stated that Sellers should be arrested and charged with three counts of aggravated rape under La. R.S. 14:42.
In June 2009, Sellers pleaded guilty to one count of forcible rape, but he now seeks to have his conviction and sentence overturned.
A warrant for Sellers's arrest was issued on January 11, 2008. (Rec. Doc. 34-1 at 9). On May 15, 2008, a bill of information charged Sellers with three counts of forcible rape under La. R.S. 14:42.1. (Rec. Doc. 34-1 at 1-2). On May 27, 2008, Sellers was arraigned and pleaded not guilty. (Rec. Doc. 34-1 at 12).
On July 21, 2009, Sellers appeared for a change-of-plea hearing. Before the hearing, Sellers executed a plea agreement, in which he agreed to plead guilty to one count of simple rape. (Rec. Doc. 34-1 at 69). At the change-of-plea hearing, the judge instructed Sellers on simple rape and read the statutory sentence for that crime. (Rec. Doc. 34-1 at 96-97). The judge then convened a bench conference. Following the bench conference, he advised Sellers that he was changing the plea agreement to show that Sellers was pleading guilty to one count of forcible rape rather than one count of simple rape. (Rec. Doc. 34-1 at 97). Sellers's counsel indicated that the revision of the plea sheet was acceptable. (Rec. Doc. 34-1 at 100). The judge then sentenced Sellers to serve fifteen years at hard labor, with all but ten years of the sentence suspended, and to serve five years supervised probation, with additional specified conditions, thereafter. (Rec. Doc. 34-1 at 101).
Sellers did not appeal his conviction or sentence. (Rec. Doc. 34-1 at 67). He did, however, apply for post-conviction relief on January 17, 2010. (Rec. Doc. 34-1 at 113). He asserted three grounds for relief, all of which are related to the judge's changing the charge from simple rape to forcible rape.
Following a hearing held on July 13, 2010,
Sellers sought review from Louisiana's Third Circuit Court of Appeal, reasserting the same claims for post-conviction relief that he presented to the trial court. (Rec. Doc. 34-1 at 196-229). The record does not contain copies of any briefing that might have been submitted to the Third Circuit by the state. On May 25, 2011, the Third Circuit denied Sellers's writ application (Rec. Doc. 195), stating:
Sellers sought to have that ruling reviewed by the Louisiana Supreme Court. The record does not contain copies of any briefs submitted by Sellers or the state to the Supreme Court. On April 12, 2012, the Louisiana Supreme Court granted Sellers's writ application but denied the relief requested (Rec. Doc. 34-1 at 192), stating:
Sellers requested reconsideration of the Supreme Court's ruling, but the record contains no copies of any documents submitted to the Supreme Court by any party in connection with that request. On May 25, 2012, the Louisiana Supreme Court denied Sellers's request for reconsideration. (Rec. Doc. 34-1 at 193).
In the instant petition for a writ of habeas corpus, Sellers seeks to have his conviction and sentence overturned.
Sellers posits seven grounds for vacating his conviction and sentence: (1) his 124-day continued custody with no grand jury indictment; (2) a defective bill of information; (3) ineffective assistance of counsel; (4) infirmity of the guilty plea; (5) the judge's participation in the plea and sentencing; (6) the restraint of his liberty as a result of ineffective assistance of counsel; and (7) the state's failure to commence trial in a timely manner.
The Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), applies to Sellers's petition. The threshold questions in habeas review under the AEDPA are whether the petition is timely and whether the claim raised by the petitioner was 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.
The Fifth Circuit has held "that an ineffective assistance of counsel argument survives a waiver of appeal only when the claimed assistance directly affected the validity of that waiver or the plea itself."
But this argument is not precisely one of timeliness; instead, it is an issue of procedural default. As is explained in more detail below, Sellers lost the right to assert a claim based on ineffectiveness of counsel unrelated to the plea or the waiver when he failed to appeal — not because the claim is now untimely but because he failed to follow the proper state-law procedure, failed to exhaust the available statecourt remedies (including a direct appeal), and for that reason forfeited his right to bring a federal habeas claim on that same issue.
The instant habeas petition is timely. Under the Antiterrorism and Effective Death Penalty Act ("AEDPA"), a petitioner must file his § 2254 petition within one year after the date that his conviction becomes final by the conclusion of direct review or the expiration of the time for seeking such review.
Sellers pleaded guilty on July 21, 2009. His conviction became final on August 20, 2009, when the thirty-day deadline for an appeal expired, in accordance with Rule 914 of the Louisiana Rules of Criminal Procedure. He had one year from that date to file a habeas petition, but that time period was tolled while his state-court application for post-conviction relief was pending. He filed his application for postconviction relief on January 17, 2010, approximately five months into the one-year time period. The Louisiana Supreme Court's ruling denying relief became final on May 25, 2012, the date that the Supreme Court denied Sellers's request for reconsideration of its prior ruling. Therefore, approximately seven months of the one-year time period remained. The instant petition was filed on June 26, 2012, approximately one month after the Supreme Court's ruling on the motion for reconsideration. Accordingly, the instant petition is timely.
The scope of federal habeas review is limited by the intertwined doctrines of procedural default and exhaustion. Procedural default exists where (1) a state court clearly and expressly bases its dismissal of a claim on a state procedural rule, and that procedural rule provides an independent and adequate ground for the dismissal, or (2) the petitioner fails to exhaust all available state remedies, and the state court to which he would be required to petition would now find the claims procedurally barred.
In this case, Sellers did not file a direct appeal, and he raised only three issues in his application for post-conviction relief: (1) ineffective assistance of counsel related to his lawyer's role in the charge being changed from simple rape to forcible rape; (2) due process violations resulting from the charge being changed; and (3) the judge's abuse of power in changing the charge. In the instant habeas petition, he reiterates those claims in Claim Nos. 3 and 6 (ineffective assistance of counsel), Claim No. 4 (infirmity of the guilty plea), and Claim No. 5 (the judge's participation at the change of plea hearing). He also adds two speedy trial claims (Claim No. 1 and Claim No. 7), a claim that the bill of information was defective (Claim No. 2), and a claim of ineffectiveness of counsel unrelated to his plea (Claim No. 3).
Sellers did not raise Claim Nos. 1, 2, or 7 in the state-court proceedings. As discussed above, he also failed to assert his claims concerning the alleged ineffectiveness of his counsel in preparing for trial and communicating with him (articulated in Claim No. 3) in his application to the state court for post-conviction relief. Were he to assert those claims in state court now, state-law procedural rules would be applied and the claims would likely be held time-barred. Accordingly, Sellers failed to exhaust his state-court remedies with regard to those claims, and he has forfeited his corresponding federal habeas claims. In other words, those claims are now procedurally defaulted.
However, out of an abundance of caution, the merits of all of Sellers's claims will be reviewed in this report.
The AEDPA standard of review provides different standards for questions of fact, questions of law, and mixed questions of fact and law. A state court's factual findings are presumed correct, and a reviewing court must give deference to the state court findings unless they were based on an unreasonable determination of the facts in light of the evidence presented in the state court proceeding.
A state court's determination of questions of law and mixed questions of law and fact must be given deference unless the decision is "contrary to or involves an unreasonable application of clearly established federal law" as determined by the United States Supreme Court.
In this case, Sellers seeks relief from the decision of the Louisiana Supreme Court, which upheld his conviction and sentence. The Supreme Court's last decision comprised only two words: "Reconsideration denied." (Rec. Doc. 34-1 at 193). Its earlier decision expressly addressed the ineffectiveness of counsel argument, stating that Sellers "has failed to establish that his counsel's performance during plea bargaining requires reversal of his conviction." (Rec. Doc. 34-1 at 192). When the reviewing federal court is "faced with a silent or ambiguous state habeas decision, the federal court should `look through' to the last clear state decision on the matter."
Each of Sellers's claims lacks merit. In the following discussion, Sellers's claims will be reorganized but the numbers assigned to them will remain consistent with the numbering used by Sellers and the state in their briefing.
Sellers's first claim and his seventh claim, neither of which was raised in his application for post-conviction relief, are best characterized as speedy-trial claims. The undersigned finds that both of these claims are procedurally defaulted, and for the following reasons, both claims also lack merit.
Sellers claims that he was denied due process because he was incarcerated for 124 days before a bill of information was issued. A warrant was issued for Sellers's arrest on February 11, 2008. (Rec. Doc. 34-1 at 9). A bill of information was issued on May 15, 2008, charging him with three counts of forcible rape. (Rec. Doc. 34-1 at 1-2). Sellers claims that he was in custody for 124 days before he was charged. The record does not reflect the date on which he was taken into custody, nor does it reflect any reasons for the lapse of time between his arrest and the issuance of the bill of information. Sellers pleaded guilty on July 21, 2009 (Rec. Doc. 34-1 at 92), approximately fourteen months after he was charged. His seventh claim is that his trial was not commenced in a timely manner.
The Sixth Amendment to the United States Constitution guarantees a defendant in a criminal case the right to a speedy trial. A court must consider four factors in assessing a speedy trial claim: 1) the length of the delay; 2) the reason for the delay;
3) the defendant's assertion of his right; and 4) prejudice to the defendant resulting from the delay.
Pre-indictment delay does not raise a Sixth Amendment right to speedy trial issue, but it may violate the Fifth Amendment's due process clause if it is established that the prosecutor intentionally delayed the indictment to gain a tactical advantage and the defendant was actually prejudiced.
In support of Claim No. 7, Sellers argues that the state failed to commence the trial in a timely manner without just cause for continuances of the trial date. The Fifth Circuit has held that a delay of one year between indictment and trial is, in general terms, a presumptively prejudicial delay that triggers a speedy trial analysis.
The first factor is the length of the delay. "[D]elays of less than five years are not enough, by duration alone, to presume prejudice."
The second factor is the reason for the delay. Sellers has presented no evidence that the state acted in bad faith or intentionally held up the prosecution for the purpose of prejudicing him. Absent evidence of that nature, this factor does not weigh in Sellers's favor.
The third factor is the defendant's assertion of his right to a speedy trial. In this case, the record contains no evidence that Sellers filed a motion seeking to expedite the proceedings. Therefore, this factor also weighs against him.
With all of the first three factors weighing against him, it cannot be presumed that Sellers was prejudiced by not being tried more quickly. Therefore, Sellers must bear the burden of proving that he was actually prejudiced by the delay. This, he has not done. Actual prejudice is examined in light of three interests: (1) the defendant's interest in preventing oppressive pretrial incarceration; (2) the defendant's interest in minimizing anxiety and concern; and (3) the defendant's interest in limiting the possibility that the defense will be impaired.
In Claim No. 2, Sellers argues that the bill of information was fatally defective. This claim was not raised in his application for post-conviction relief. Therefore, it is procedurally defaulted. The undersigned also finds that it lacks merit for the following reasons.
The sufficiency of a state charging document, whether indictment or bill of information, is not a matter for federal habeas relief unless it can be shown that the charging document is so defective that it deprives the state court of jurisdiction
Sellers has not identified a federal Constitutional right that he alleges was violated because of the bill of information. Instead, he addresses this claim exclusively under state law, alleging that the bill of information does not specify whether he is charged with anal, oral, or vaginal sexual intercourse. Absent a Constitutional issue having been raised, this Court cannot review whether a charging document is sufficient under state law. Furthermore, Sellers has cited no authority for his contention that the bill of information must contain the detailed specificity that he suggests. A review of the bill of information (Rec. Doc. 34-1 at 1-2) reveals that it charges Sellers with three counts of forcible rape, generally follows the language of the statute under which he was charged, sets forth the dates of the alleged occurrences in a general range, and identifies the victim by initials and date of birth. No deficiency in the bill of information was identified by the trial court judge at the change of plea hearing.
For these reasons, the undersigned finds that Claim No. 2 lacks merit.
In Claim No. 5, Sellers argues that the trial court judge impermissibly participated in the negotiation of his plea agreement by changing the agreement to show that he was pleading guilty to forcible rape instead of simple rape. This claim was asserted in Sellers's application for post-conviction relief, and it was rejected by the Louisiana courts.
At the hearing on Sellers's application for post-conviction relief, the state's attorney explained that the trial court judge realized, as he was reviewing the plea agreement in open court at the change-of-plea hearing, that the agreed-upon sentence could not be levied if Sellers pleaded guilty to simple rape. The agreed-upon sentence was fifteen years imprisonment with all but ten years suspended. Under Louisiana law, however, a prison term for simple rape cannot be suspended. "Whoever commits the crime of simple rape shall be imprisoned, with or without hard labor, without benefit of parole, probation, or suspension of sentence, for not more than twenty-five years."
This explains why the trial court judge changed the plea agreement at the change of plea hearing, but it also makes it clear that the judge did, in fact, interject himself into the plea process.
Sellers claims that the judge's comments and the judge's revision of the plea agreement coerced him into pleading guilty to forcible rape. However, he failed to show that any Constitutional right was abridged. The state argues that Rule 11(e)(1) of the Federal Rules of Criminal Procedure, which prohibits judicial participation in the plea negotiation process was violated, but that a harmless error analysis should be applied. The state's analysis is flawed. "Rule 11 sets a standard for federal courts; it does not establish a Constitutional prohibition applicable to the State courts."
Whether Sellers was coerced by the trial court judge's participation in the plea process is an issue to be considered when determining whether his plea was voluntary. Therefore, Claim No. 5 is not separate from Claim No. 4, in which Sellers asserted that his guilty plea was not freely given, and Claim No. 5 will be considered together with Claim No. 4, below.
In Claim No. 4, Sellers argues that his guilty plea was Constitutionally infirm because he pleaded guilty on the advice of unprepared, uninformed counsel who induced and coerced him into pleading. As noted above, he also claims that the trial court judge coerced him into pleading guilty to forcible rape instead of simple rape. He claims that his plea was neither free nor knowing. This claim was presented in his application for post-conviction relief, and it was rejected by the Louisiana courts.
A guilty plea will be upheld on habeas review if it was entered into knowingly, voluntarily, and intelligently.
In this case, Sellers signed a plea agreement before the change-of-plea hearing was held. At the change-of-plea hearing, the trial court judge reviewed the basic elements of that agreement, saying, in part: "Your agreement with the State says you're going to plead guilty to one count of simple rape. You'd get fifteen years at hard labor, suspend all but ten years of that." (Rec. Doc. 34-1 at 93). Sellers confirmed his understanding of the terms of the agreement, saying "Yes, sir" several times in response to the judge's questions. (Rec. Doc. 34-1 at 94-97). The judge then summoned the attorneys for a bench conference.
After the bench conference, the judge said, "Let me read you the crime of forcible rape. That's what you're going to plead guilty to because we can give you the penalty that it has and it should fit the facts, from what I understand." (Rec. Doc. 34-1 at 97). He then read the statutory definition of the crime and asked if Sellers understood. Sellers answered, "Yes, sir." (Rec. Doc. 34-1 at 97-98). The judge then reviewed the statutory sentence. Sellers again indicated that he understood. (Rec. Doc. 34-1 at 98). The judge then reviewed each of the Constitutional rights that Sellers would be waiving if he pleaded guilty. Sellers affirmatively indicated that he understood he would be waiving his rights to jury trial, to confront his accusers, and to remain silent and avoid self-incrimination. (Rec. Doc. 34-1 at 99). The judge then reiterated that the plea agreement was changed to show one count of forcible rape. He asked, "Is that agreeable with everyone?" Sellers's counsel replied, "Yes, Your Honor." (Rec. Doc. 34-1 at 100). The judge then questioned Sellers concerning whether any promises or threats had been made, other than those in the plea agreement, to persuade him to plead guilty. Sellers answered, "No, sir." The same question was posed to Sellers's counsel, and he too answered, "No, sir." (Rec. Doc. 34-1 at 100). Sellers then pleaded guilty. The judge then called upon the prosecutor, who explained the factual basis for the plea. The judge asked Sellers if it was correct, and he said, "Yes, sir." (Rec. Doc. 34-1 at 101). The court then found that there was sufficient evidence on which to base a guilty plea and further found that the plea was freely and voluntarily made. (Rec. Doc. 34-1 at 101).
Sellers argued to both the Louisiana Third Circuit Court of Appeal and the Louisiana Supreme Court that his plea was not voluntary. Both found that his argument lacks merit.
Whether Sellers knowingly and intelligently waived his Constitutional right to a jury trial is a legal question.
Sellers raises two distinct ineffective assistance of counsel claims, only one of which was raised in Sellers's motion for post-conviction relief. That claim was rejected on the merits by three Louisiana courts.
The Sixth Amendment to the United States Constitution guarantees criminal defendants the "right to effective assistance of counsel at every critical stage of the proceedings against them."
In analyzing the professional competence part of the test, judicial scrutiny of an attorney's performance must be "highly deferential," and the 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."
To satisfy the prejudice part of the test, Sellers must demonstrate that his attorney's actions or inactions were "so serious as to render the proceedings unreliable and fundamentally unfair."
The issue of ineffective assistance of counsel is a mixed question of law and fact.
Sellers complains that his counsel failed to investigate the alleged crime, failed to interview witnesses, and failed to communicate with Sellers. These claims are not related to the voluntariness of his guilty plea. Having found that his guilty plea was voluntary, this Court is constrained to find that these claims of ineffective counsel cannot be considered. A voluntary guilty plea waives all nonjurisdictional defects in the proceedings against the defendant, including all claims of ineffective assistance of counsel, except those asserting that the alleged ineffectiveness relates to the voluntariness of the plea.
With regard to Sellers's claim that his plea was not voluntary because of the ineffectiveness of his counsel, the Louisiana appellate court found that Sellers failed to meet his burden of proving that the guilty plea was not intelligently and knowingly made, and the Louisiana Supreme Court held that Sellers failed to establish that his counsel's performance during plea bargaining requires reversal of his conviction. Sellers has presented no evidence that he was not fully and completely informed of the contents of the plea package prior to the change-of-plea hearing or during the hearing. When specifically asked if he had had an opportunity to discuss the plea package with his counsel, he said he had. (Rec. Doc. 34-1 at 94). The trial court judge also asked if he was satisfied with his counsel's representation, and Sellers answered, "Yes, sir." (Rec. Doc. 34-1 at 94). Later in the hearing, the judge again asked if he was satisfied with his counsel's representation, and he again answered, "Yes, sir." (Rec. Doc. 34-1 at 98). This testimony bears great weight, and Sellers has not presented evidence establishing that his testimony was false.
One of Seller's ineffectiveness claims cannot be considered by this Court and Sellers has not show that the state courts' decisions rejecting the other ineffectiveness claim was contrary to, or involved an unreasonable application of, clearly established federal law. Accordingly, the undersigned finds that Claim Nos. 3 and 6 lack merit and recommends that this Court defer to the state courts' decisions rejecting the ineffectiveness of counsel claim that was presented to them.
For the reasons stated above,
Under the provisions of 28 U.S.C. § 636(b)(1)(C) and Rule 72(b), parties aggrieved by this recommendation have fourteen days from service of this Report and Recommendation to file specific, written objections with the Clerk of Court. A party may respond to another party's objections within fourteen days after being served, with a copy of any objections or response being provided to the District Judge at the time of filing.
Failure to file written objections to the proposed factual findings and/or the proposed legal conclusions reflected in this Report and Recommendation within fourteen days following the date of its service, or within the time frame authorized by Fed. R. Civ. P. 6(b), shall bar an aggrieved party from attacking either the factual findings or the legal conclusions accepted by the District Court, except upon grounds of plain error. See, Douglass v. United Services Automobile Association, 79 F.3d 1415 (5
Pursuant to Rule 11(a) of the Rules Governing Section 2254 Cases in the United States District Courts, this court must issue or deny a certificate of appealability when it enters a final order adverse to the applicant. Unless a Circuit Justice or District Judge issues a certificate of appealability, an appeal may not be taken to the court of appeals. Within fourteen days from service of this Report and Recommendation, the parties may file a memorandum setting forth arguments on whether a certificate of appealability should issue. See 28 U.S.C. § 2253(c)(2). A courtesy copy of the memorandum shall be provided to the District Judge at the time of filing.
