Buniff v. Cain

Filing 37

ORDER ADOPTING REPORT AND RECOMMENDATIONS 35 , dismissing 1 Petition for Habeas Corpus. Signed by Judge Ivan L.R. Lemelle.(lag, )

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
JOHN L. BUNIFF

CIVIL ACTION

VERSUS

NO. 07-1779

BURL CAIN, WARDEN

SECTION “B”(6)
ORDER AND REASONS

Petitioner John L. Buniff’s (“Petitioner”) written objections
(Rec. Doc. 36) to the Report and Recommendation (Rec. Doc. 35) of
United States Magistrate Judge Louis Moore, Jr. are overruled.
That Report is adopted as the opinion of the Court.

The habeas

corpus petition is dismissed with prejudice.
Petitioner is a state prisoner incarcerated at the Louisiana
State Penitentiary in Angola, Louisiana. On September 25, 2000, he
was convicted of second-degree murder in violation of Louisiana
law.

On December 14, 2000, he was sentenced to a term of life

imprisonment without benefit of parole, probation, or suspension of
sentence.

On December 30, 2002, the Louisiana Fifth Circuit Court

of Appeal affirmed his conviction.

The Louisiana Supreme Court

denied his related writ application on May 9, 2003, thus making his
state conviction final.
On May 7, 2004, petitioner, through counsel, filed with the
state district court an application for post-conviction relief.
That

application

was

evidentiary hearing.

denied

on

August

10,

2004,

without

an

The Louisiana Fifth Circuit Court of Appeal

1

subsequently granted petitioner's related writ application and
remanded the matter for an evidentiary hearing.

Petitioner then

filed a supplemental post-conviction application on February 28,
2005, and an evidentiary hearing was held on May 2, 2005.

The

state district court again denied relief on November 28, 2005, and
petitioner's related writ applications were denied by the Louisiana
Fifth Circuit Court of Appeal on March 24, 2006, and the Louisiana
Supreme Court on November 22, 2006.
On April 12, 2007, petitioner, through counsel, filed this
federal application for habeas corpus relief claiming that he was
denied his right to effective assistance of counsel, as guaranteed
by the Sixth and Fourteenth Amendments, based on four claims.
First, petitioner claims that his attorneys, Davidson Ehle and Jim
Williams, failed to conduct reasonable pretrial investigation or
adequately prepare for trial. Second, petitioner claims that his
trial counsel, Davidson Ehle, failed to object to the introduction
of several letters written by petitioner to his wife that were
privileged, confidential communications. Third, petitioner claims
that Ehle failed to redact or edit these letters before they were
presented to the jury. Finally, petitioner claims that trial
counsel failed to argue the responsive verdict of manslaughter.
A Report and Recommendation was issued by Magistrate Louis
Moore, Jr., recommending that the petition be dismissed with
prejudice for being untimely filed.

2

The Report and Recommendation

was adopted by this Court after objections were overruled and
petitioner appealed.

The United States Fifth Circuit Court of

Appeals remanded the case, noting that a decision rendered by that
court in Wilson v. Cain, 564 F.3d 702 (5th Cir. 2009), after this
Court decided the case, altered the time-bar analysis to be
employed.

Therefore, the Fifth Circuit vacated the district

court’s judgment and remanded the matter for consideration. The
State was then ordered to and did file a “Supplemental Response in
Opposition to Granting Writ of Habeas Corpus,” Rec. Doc. 34. A
second Report and Recommendation was issued by Magistrate Moore
(Rec. Doc. 35), recommending that the petition be dismissed with
prejudice, and petitioner then timely filed objections to the
Magistrate's Report (Rec. Doc. 36) and requested review by this
Court.
Under the Antiterrorism and Effective Death Penalty Act
(AEDPA), federal courts “defer to a state court's adjudication of
a petitioner's claims on the merits unless the state court's
decision

was:

(1)

'contrary

to,

or

involved

an

unreasonable

application of, clearly established Federal law, as determined by
the Supreme Court of the United States'; or (2) 'resulted in a
decision that was based on an unreasonable determination of the
facts in light of the evidence presented in the State court
proceeding.'” Gray v. Epps, 616 F.3d 436, 439 (5th. Cir. 2010)
(quoting 28 U.S.C. § 2254(d)). “A state court's decision is deemed

3

contrary to clearly established federal law if it reaches a legal
conclusion in direct conflict with a prior decision of the Supreme
Court or if it reaches a different conclusion than the Supreme
Court based on materially indistinguishable facts.” Gray, 616 F.3d
at 439. Alternatively, a state court's decision “constitutes an
unreasonable application of clearly established federal law if it
is 'objectively unreasonable.'”

Id. (quoting Williams v. Taylor,

529

Regarding

U.S.

362,

409

(2000)).

issues

of

fact,

a

determination made by a State court “shall be presumed to be
correct,”

with

the

burden

clear

and

of

rebutting

correctness

by

convincing

petitioner.

the

evidence

presumption
falling

on

of
the

28 U.S.C. § 2254(e)(1).

Petitioner fails to show that the state court’s denial of
post-conviction

relief,

based

on

the

adjudication

of

his

ineffective assistance of counsel claims, was contrary to, or
involved

an

unreasonable

application

of,

clearly

established

Federal law.
The benchmark for judging a habeas petitioner's claim of
ineffective assistance of counsel is Strickland v. Washington, 466
U.S. 668 (1984). To establish ineffective assistance of counsel, a
convicted
performance

defendant
was

must

deficient,

show
and

that
(2)

(1)

the

defense

deficient

counsel's
performance

prejudiced the defense. Id. at 687. "In any case presenting an
ineffectiveness claim, the performance inquiry must be whether

4

counsel's

assistance

was

circumstances." Id. at 688.

reasonable

considering

all

the

Judicial scrutiny must be "highly

deferential," indulging a strong presumption that counsel's conduct
falls within the wide range of reasonable professional assistance.
Id. at 689. However, deference does not preclude relief. Miller-El
v. Cockrell, 537 U.S. 322, 340 (2003). Petitioner can demonstrate
deficient performance by showing that counsel's representation fell
below an objective standard of reasonableness, “as reflected in
American Bar Association standards and the like.” Strickland, 466
U.S. at 688. In addition to deficient performance, Petitioner must
show that the errors of counsel had more than a mere “conceivable
effect” on the outcome of the proceeding; he must satisfy both
prongs

of

Strickland.

Id.

at

693.

Deficient

performance

is

prejudicial when “there is a reasonable probability that, but for
counsel's unprofessional errors, the result of the proceeding would
have been different.” Id. at 694. “A reasonable probability is one
sufficient to undermine confidence in the outcome.”

Id.

Petitioner alleges (1) that counsel failed to investigate
potential eye witnesses identified by petitioner prior to trial;
(2)

that

counsel

failed

to

investigate

and

properly

utilize

petitioner's wife, Mary Hulbert, as a defense witness; and (3) that
counsel failed to adequately prepare with petitioner prior to
trial, which led to his failure to develop the self-defense theory
at trial. Rec. Doc. No. 36, at 7-9.

5

These allegations were

addressed and denied during the state post-conviction process.
Nothing in petitioner's objections to the Magistrate Judge's
recommendation demonstrates a reasonable probability that the
outcome of the trial would have been different, but for the failure
of counsel to call potential witnesses.
established

the

general

rule

that

The Fifth Circuit has

“[c]omplaints

of

uncalled

witnesses are not favored, because the presentation of testimonial
evidence is a matter of trial strategy and because allegations of
what a witness would have testified are largely speculative.”
Buckelew v. United States, 575 F.2d 515, 521 (5th Cir. 1978).
order

to

prove

ineffective

assistance

under

Strickland,

In
the

petitioner must show not only that the testimony would have been
favorable, but also that the witnesses would have testified at
trial. Alexander v. McCotter, 775 F.2d 595, 602 (5th Cir. 1985).
Petitioner contends that several uncalled witnesses would have
provided favorable information to support his theory of selfdefense. Rec. Doc. 36 at 8-9.

He suggests that neighbors John and

Lisa Russell, Alice Ruiz, and Myra Kindernecht would have testified
about the victim's trips to and from the house on the day of the
shooting, as well as petitioner's verbalized fear that he would be
hurt

by

the

unsupported

victim.
by

Id.

anything

testimony at trial.

However,

other

than

these

speculations

petitioner's

are

self-serving

The only evidence of a missing witness's

testimony is from petitioner. The Fifth Circuit has viewed similar

6

claims of ineffective counsel with “great caution.” United States
v. Cockrell, 720 F.2d 1423, 1427 (5th Cir. 1983).
No

testimony

has

been

given

by

the

alleged

potential

witnesses, nor has an affidavit summary of the testimony they would
offer

been

submitted

to

the

state

courts

or

to

this

Court.

Similarly, in Cockrell, no testimony was given by the missing
witness, nor was an affidavit suggesting the content of his
projected testimony submitted. 720 F.2d at 1427.

“Speculations as

to what [the witness] might have been able to contribute through
his testimony are insufficient to establish a prima facie showing
that [the witness's] testimony would have substantially altered the
outcome of the trial.” Id.

Accordingly, petitioner's speculations

here are insufficient to show that the outcome of the trial would
have been different, but for the failure of counsel to call the
neighbors as witnesses.
Petitioner next alleges that counsel failed to investigate
and properly utilize petitioner's wife, Mary Hulbert, as a defense
witness. Rec. Doc. 36 at 9. Hulbert attempted to contact defense
counsel Williams with information about her husband's case in 1999
and 2000.

Id. at 10.

Petitioner now claims that she was ignored

by Williams and unutilized by trial counsel Ehle to the detriment
of his case. Id.

However, petitioner erroneously asserts that

Hulbert would have provided favorable information or testimony to
the defense. See State Rec. Vol. V, Trial Transcript (“TT”), p.

7

148.

Hulbert testified at trial that she had no memory or recall

of what happened the afternoon of the shooting, due to a recent
medical procedure and pain medication that made her feel “very,
very ill” and “out of it.” TT, at pp. 148-49. She was recovering
from pneumonia, kidney failure, liver failure, minor infections,
and emphysema, and was unable to focus on anything going on around
her. TT, at pp. 148-49.
Additionally, Ehle's testimony at the state post-conviction
evidentiary hearing shows that he strategically chose not to call
petitioner's wife as a witness. Evidentiary Hearing Testimony
(“EHT”) at pp. 11, 35-36. Ehle testified that he learned Hulbert
had turned over letters that were damaging to petitioner's case to
the District Attorney and that he considered that a “big tipoff”
that she was not going to be a favorable defense witness. Id.
Judicial review of such a strategic decision must “indulge a strong
presumption that counsel's conduct falls within the wide range of
reasonable professional assistance; that is, the defendant must
overcome

the

presumption

that,

under

the

circumstances,

the

challenged action 'might be considered sound trial strategy.'”
Strickland,
Petitioner's

460

U.S.

attorney

at

689

attacks

(internal

citation

Magistrate

Judge

omitted).
Moore's

determination that Ehle strategically chose to not call Hulbert as
a witness by saying deference does not mean acquiescence. Rec. Doc.
36

at

9.

However,

petitioner

fails

8

again

to

overcome

the

presumption that Ehle's decision was sound trial strategy, other
than reiterating speculative and unsupported allegations. Id. at 910. Petitioner's second allegation fails to overcome the deference
paid to counsel's strategic decision in order to show deficient
performance and fails to show prejudice.
Petitioner further alleges that counsel would have learned
the importance of potentially exculpatory witnesses, called them to
testify at trial, and fully developed the self-defense theory, if
only he had adequately prepared with petitioner before trial. Rec.
Doc. No. 36, at 9. However, this allegation is also unsupported by
a showing of deficient performance and prejudice.
The failure to meet with one's client prior to trial does
not automatically make the trial “inherently unfair.” United States
v. Cronic, 466 U.S. 648, 661 (1984). Petitioner bears the same
burden of demonstrating deficient performance and prejudice under
Strickland to support this allegation.
Counsel's testimony at the state post-conviction evidentiary
hearing was that he met with his client three times. EHT at pp. 78, 35. On the day the trial began, September 19, 2000, counsel
talked with his client when petitioner was brought to the trial
court for a sanity hearing. Id. at p. 35. He also visited with
Petitioner for several hours at the Jefferson Parish Correctional
Center on September 20, 2000, and for less than an hour on
September 22, 2000. Id. at pp. 7-8. Trial counsel Ehle acquired

9

petitioner's case from Jim Williams, another member of the firm
retained by petitioner, one week before trial. Id. at pp. 7, 15-16.
Ehle immediately requested a continuance of trial that was denied.
Id.
Petitioner does not allege that any new information would
have been exchanged during any pretrial meetings with Ehle.

He

merely alleges that Ehle would have learned the importance of the
potentially exculpatory witnesses, called them to testify at trial,
and fully developed the self-defense theory. Rec. Doc. 36 at 9. In
fact, petitioner's objections to Magistrate Judge Moore's report
assume that Ehle had access to the case file and any and all
information

gleaned

by

prior

counsel,

Williams.

Id.

at

12.

Petitioner again relies on his own speculation as to what uncalled
potential witnesses would have testified. As addressed above,
petitioner has failed to establish a prima facie showing that the
testimony of uncalled witnesses would have altered the outcome of
the trial, especially in view of overwhelming evidence of guilt,
as cited in the state court record.

State v. Buniff, 837 So.2d 769

(La. App. 5 Cir. 12/30/02) (unpub. op.).
Petitioner also alleges that counsel failed to object to the
introduction of several letters written by petitioner to his wife.
Id.

at

13-17.

confidential

He

argues

communications,

prejudicial information. Id.

that

the

that

letters

gave

the

were
jury

privileged,
access

to

The state appellate court and the

10

Magistrate Judge found that Petitioner has not shown that, even if
the letters had not been admitted, the outcome of the trial would
have been different. The weight of the evidence was against
petitioner's

self-defense

theory

at

trial:

two

eye

witnesses

testified that petitioner was not provoked by the victim and that
petitioner was the aggressor; evidence was admitted that showed
that petitioner called the police but never reported the alleged
threats by the victim or the victim's alleged assault with a
firearm; a search of the area, the victim, and the victim's car
failed to turn up a weapon allegedly used by the victim to assault
petitioner; and the only evidence admitted supporting petitioner's
self-defense theory was his own self-serving testimony.

See State

v. Buniff, 02-567 (La. App. 5 Cir. 12/30/02), 837 So.2d 769
(unpublished),

after

a

review

of

the

record.

Petitioner's

objections focused on the actions taken by trial counsel and why
the letters should not have been admissible, devoting only one
sentence out of four and a half pages to point out that they
“contained information that the jury could ultimately use in
determining guilt,” Rec. Doc. 36 at 16. The objections failed to
address how or why the outcome of the trial would have been
different if the letters had not been admitted.

Again, petitioner

fails to show that the state court’s denial of claims here was
contrary to, or involved an unreasonable application of, clearly
established federal law.

11

Similarly, petitioner also alleges that counsel failed to
redact or edit the letters from petitioner to his wife before they
were presented to the jury, allowing the jury to hear the damaging
information in the letters. Rec. Doc. No. 36, at 17-18. Counsel was
given the opportunity by the trial court to redact the letters or
object to portions of the letters, but Petitioner alleges deficient
performance by counsel because he failed to sanitize the letters
without a strategic reason. Id. Petitioner claims that this failure
to redact affected the outcome of trial because the jury heard
“extremely prejudicial information concerning Petitioner, both
uncharged crimes and privileged attorney-client information.” Id.
at 18.
In correctly addressing the claims of failure to redact or
sanitize,

trial

counsel

testified

at

the

post-conviction

evidentiary hearing that he intended to exclude the information in
the

letters

and

thought

that

his

continued

objections

were

sufficient to protect the record, with strenuous objections to
admission of the letters.
13, 15, 18.

State Rec. Vol. III of VIII, EHT at pp.

Trial counsel testified that after speaking at length

with his client, petitioner insisted upon testifying even though he
was advised that his prior drug conviction would be revealed to the
jury. State Rec., Vol VIII, at pp. 19, 36-37. Related information
about petitioner’s criminal record was contained in the letters and
would be revealed to the jury in view of petitioner’s insistence on

12

testifying.

Id. at pp. 18-19.

Further, petitioner fails to show

a reasonable probability that but for counsel’s actions here, there
would have been a different outcome.
Petitioner's

final

claim

of

ineffective

assistance

of

counsel alleges that counsel failed to argue the responsive verdict
of manslaughter, resulting in a sentence of life imprisonment upon
his conviction for committing second degree murder. Id. at 19-22.
This claim was not raised during the state post-conviction relief
process. Petitioner argues that manslaughter would have been an
appropriate argument under the facts of the case, and claims that
arguing the responsive verdict would have resulted in a lesser
sentence. Id. at 19. The Magistrate Judge denied this claim with
prejudice as procedurally defaulted because it was unexhausted and,
if dismissed without prejudice from this Court, the state courts
would now find the claim procedurally barred. Rec. Doc. 35 at 2930. Petitioner contends that he is entitled to a dismissal without
prejudice, so that he may exhaust the claim in state court and then
return to federal court, with the benefit of a stay and abeyance on
his remaining claims. Rec. Doc. 36 at 19. Alternatively, petitioner
argues the merits of this claim in response to the determination
that petitioner would still not obtain relief if the merits were
addressed because he failed to show prejudice under Strickland. Id.
at 19.
“A state prisoner normally must exhaust all available state

13

remedies before he can apply for federal habeas relief.” Nobles v.
Johnson, 127 F.3d 409, 420 (5th Cir. 1997) (citing Ex parte Royall,
117 U.S. 241 (1886)); 28 U.S.C. § 2254(b)(1)(A). He must have
fairly presented the substance of his claim to the state courts,
without presenting new legal theories or factual claims in his
federal

habeas

petition.

Nobles,

127

F.3d

at

420

(internal

citations omitted). The Supreme Court explained the doctrine of
comity as the basis of this exhaustion requirement:
Under our federal system, the federal and state courts
are equally bound to guard and protect rights secured by
the Constitution. Because it would be unseemly in our
dual system of government for a federal district court to
upset a state court conviction without an opportunity to
the state courts to correct a constitutional violation,
federal courts apply the doctrine of comity, which
teaches that one court should defer action on causes
properly within its jurisdiction until the courts of
another sovereignty with concurrent powers, and already
cognizant of the litigation, have had an opportunity to
pass upon the matter.
Rose

v.

Lundy,

455

U.S.

509,

518

(1982)(brackets,

internal

quotation marks, and citations omitted). Lundy established the
total exhaustion rule, requiring federal district courts to dismiss
habeas petitions containing both exhausted and unexhausted claims
but giving petitioners the option to resubmit a petition with only
exhausted claims or exhaust the remainder of their claims. 455 U.S.
at 520.
Although

a

federal

habeas

claim

has

not

been

actually

exhausted, it is considered “technically” exhausted when state
relief is no longer available. Jones v. Jones, 163 F.3d 285, 296
14

(5th Cir. 1998).
defaulted

“when

Similarly, a claim is technically procedurally
a

prisoner

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.'” Nobles, 127 F.3d at
420 (quoting Coleman v. Thompson, 501 U.S. 722, 735 n. 1). In other
words, there is no substantial difference between a claim being
technically exhausted and technically procedurally defaulted when
a petitioner has allowed his state remedies to lapse. Jones v.
Jones, 163 F.3d at 296. If the remainder of the claims were
actually exhausted, the petition need not be dismissed as mixed
under Lundy; it may be granted or denied without consideration of
the merits of the procedurally defaulted claim. See Nobles, 127
F.3d at 412. On the other hand, the claim may overcome the
procedural bar and may be assessed on the merits “if the petitioner
'can demonstrate cause for the default and actual prejudice as a
result of the alleged violation of federal law or demonstrate that
failure to consider the claims will result in a fundamental
miscarriage of justice.'” Jones, 163 F.3d at 296 (quoting Moawad v.
Anderson, 143 F.3d 942, 947 (5th Cir. 1998)).
Petitioner challenged his conviction to the highest state
court, with full opportunity to raise any and all claims, but
failed to raise the claim that defense counsel did not argue the
manslaughter

responsive

verdict.

15

Therefore,

this

claim

is

unexhausted,

and

recommendation

the

do

objections

not

dispute

to

the

this

Magistrate

Judge's

determination.

Instead,

petitioner argues entitlement to a dismissal without prejudice in
order to exhaust the claim in state court and then return to
federal court, with the benefit of a stay and abeyance on his
remaining claims.
However, petitioner is not entitled to a dismissal without
prejudice or habeas relief on this procedurally defaulted claim. If
the

unexhausted

petitioner

were

claim
to

were

file

dismissed

a

successive

without

prejudice

application

for

and
post-

conviction relief in state court, it would be time barred.
La. Code Cr. P. Art. 930.8.

See

Louisiana Code of Criminal Procedure

Article 930.8 provides that the application for post-conviction
relief must be filed within two years of the date the judgment of
conviction and sentence become final unless (1) the facts upon
which

the

claim

is

based

were

not

previously

known

to

the

petitioner or his attorney, or (2) the claim is based on a new
judicial

interpretation

of

constitutional

law,

the

new

interpretation is retroactive, and the petition is filed within one
year of the finality of such ruling. La. Code Crim. Proc. art.
930.8. Persons sentenced to death are exempted from this time
limitation.

Id.

Article

930.8

has

been

found

to

be

a

valid

procedural bar for the purposes of federal habeas review, see
Glover v. Cain, 128 F.3d 900, 902 (5th Cir. 1997).

16

Petitioner's

conviction and sentence were final on May 9, 2003. His unexhausted
claim would not fit within any of the exceptions to the two-year
time limit in Article 930.8. Accordingly, the claim that counsel
failed

to

argue

the

responsive

verdict

of

manslaughter

is

considered to be procedurally defaulted and subject to dismissal
with prejudice without consideration of its merits.
Petitioner's

objections

made

no

attempt

to

overcome

the

procedural bar by demonstrating cause for the default and actual
prejudice as a result of the alleged violation of federal law or a
fundamental miscarriage of justice.

He attempts to address the

merits of this claim in case this court were to find the claim had
been exhausted.

Rec. Doc. No. 36, at 19.

Refraining from arguing the responsive verdict may have been
reasonable trial strategy on the part of his trial counsel.

If

counsel had believed that the evidence was insufficient to prove
second degree murder, and second degree murder was not proven,
petitioner could have been acquitted. Counsel may have decided to
refrain from arguing manslaughter in order to seek acquittal rather
than a lesser verdict, and such a strategic decision would be
entitled to deference.

On the other hand, the record contains

evidence that the jury was, in fact, given the opportunity to reach
a compromise verdict because the verdict sheet contained the lesser
offense of manslaughter and the trial judge instructed the jury on
the charge of manslaughter.

State Rec. Vol. I of VIII; see

17

Jury

Instructions on lesser included charge of manslaughter.

Despite

petitioner's assertions to the contrary, counsel's failure to argue
for the responsive verdict of manslaughter does not establish
prejudice under Strickland.
At the conclusion of petitioner's objections, he asserts
that

the

cumulative

effect

of

the

four

deficiencies

claimed

constitutes a “breakdown in the adversarial process” that renders
the result of the state process unreliable.

Id. at 23. Petitioner

contends that “nothing about his case triggers a finding of
fundamental fairness,” he urges this court to extend a cumulative
analysis to claims of ineffective assistance of counsel, and
asserts that, under a cumulative prejudice test, “there is no doubt
that Petitioner's trial counsel was ineffective.”

Id.

Petitioner then admits that the Fifth Circuit has yet to
extend a cumulative analysis to claims of ineffective assistance of
counsel, but points to Fifth Circuit applications of cumulative
impact analysis in other contexts.

Id.

He cites Ninth and Seventh

Circuit cases to support his contention that the Fifth Circuit
should employ a cumulative prejudice test to claims of ineffective
assistance, but provides no binding law to guide this Court.

Id.

Petitioner's objections conclude by suggesting that the “cumulative
effect of these violations of Petitioner's due process rights
amounts to a per se violation of his constitutional rights.”

Id.

However, he lacks support for this assertion in the Fifth Circuit,

18

whose

precedent

Moreover,

there

must
has

guide
been

no

the

analysis

showing

of

of

this

cumulative

petition.
error

or

cumulative impact given the above findings as to all other claims.
The instant petition for habeas relief is denied.

New Orleans, Louisiana, this 7th day of July, 2011.

_______________________________
UNITED STATES DISTRICT JUDGE

19