Ducros v. Cain et al
Filing
30
ORDER & REASONS denying pla's 27 Motion for Leave to Appeal in forma pauperis. Signed by Chief Judge Sarah S. Vance on 10/3/2011. (rll, ) Modified on 10/3/2011 to edit doc type (rll, ).
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
DAVID DUCROS
CIVIL ACTION
VERSUS
NO: 09-6977
BURL CAIN, WARDEN
SECTION: R
ORDER AND REASONS
Before the Court is petitioner David Ducros’s motion to
appeal in forma pauperis.
Because the Court finds that his
appeal is not taken in good faith, the motion is DENIED.
I. Background
Ducros is a state prisoner incarcerated at the Louisiana
State Penitentiary, Angola, Louisiana.
He was convicted of
second-degree murder in state court and was sentenced to life in
prison without benefit of parole, probation, or suspension of
sentence on December 4, 2003.
After unsuccessfully proceeding through the state appeal and
post-conviction process, Ducros filed a habeas corpus petition
asserting a number of claims.
These claims included a challenge
to the state-court’s jury instructions, a contention that his
counsel was constitutionally ineffective, and an assertion that
there was insufficient evidence to convict him.
The Magistrate
Judge recommended that all of his claims be denied on the
merits.1
This Court adopted the Report and Recommendation and
declined to issue a certificate of appealability.2
Ducros now
moves to proceed with his appeal in forma pauperis.
II. Standard
A plaintiff may proceed in an appeal in forma pauperis when
he “submits an affidavit that includes a statement of all assets
[he] possesses [and] that [he] is unable to pay such fees or give
security therefor.”
P. 24(a).
28 U.S.C. § 1915(a)(1); see also FED. R. APP.
A court may dismiss the case at any time if it
determines that the allegation of poverty is untrue, that the
appeal is frivolous or malicious, that the appeal fails to state
a claim on which relief may be granted, or that the appeal seeks
monetary relief against a defendant who is immune from such
relief.
Id. § 1915(e).
A district court has discretion in
deciding whether to grant or deny a request to proceed in forma
pauperis.
Williams v. Estelle, 681 F.2d 946, 947 (5th Cir. 1982)
(per curiam); see also Prows v. Kastner, 842 F.2d 138, 140 (5th
Cir. 1988) (“A district court has discretion, subject to review
for abuse, to order a person to pay partial filing fees where the
financial data suggests that the person may do so without
suffering undue financial hardship.”).
1
R. Doc. 16.
2
R. Docs. 18, 19.
2
The district court must
inquire as to whether the costs of appeal would cause an undue
financial hardship.
Prows, 842 F.2d at 140; see also Walker v.
Univ. of Tex. Med. Branch, No. 08-417, 2008 WL 4873733, at *1
(E.D. Tex. Oct. 30, 2008) (“The term ‘undue financial hardship’
is not defined and, therefore, is a flexible concept.
However, a
pragmatic rule of thumb contemplates that undue financial
hardship results when prepayment of fees or costs would result in
the applicant’s inability to pay for the ‘necessities of life.’”)
(quoting Adkins v. E.I. DuPont de Nemours & Co., 335 U.S. 331,
339 (1948)).
III. Discussion
Ducros’s motion to proceed in forma pauperis indicates that
he had an average monthly balance of $219.08 for the six months
before he filed this motion.
Ducros reports no other accounts or
resources and he is not employed.
This suggests that Ducros is
unable to pay the costs of appeal.
Ducros, however, failed to state a nonfrivolous ground for
appeal.
An appeal may not be taken in forma pauperis if it is
not in good faith.
P. 24(a)(4)(B).
28 U.S.C. § 1915(a)(3); see also Fed. R. App.
“‘Good faith’ is demonstrated when a party seeks
appellate review of any issue ‘not frivolous.’” Howard v. King,
707 F.2d 215, 220 (5th Cir. 1983) (quoting Coppedge v. United
States, 369 U.S. 438, 445 (1962)).
3
A determination of an IFP
movant’s good faith, while necessitating a brief inquiry into the
merits, is limited to whether the appeal involves legal points
arguable on their merits.
United States v. Misher, 401 F. App’x
981, 981 (5th Cir. 2010) (quoting Howard, 707 F.2d at 220).
“A
complaint is frivolous if it lacks an arguable basis either in
law or in fact.”
Kingery v. Hale, 73 F. App’x 755, 755 (5th Cir.
2003) (citing Denton v. Hernandez, 504 U.S. 25, 31-33 (1992)).
Ducros’s claim that there was insufficient evidence to
support his conviction for second-degree murder does not have an
arguable basis in law or in fact.
Under Jackson v. Virginia, 443
U.S. 307, 319 (1979), the Court must determine, after viewing the
evidence in the light most favorable to the prosecution, whether
a rational trier of fact could have found that the essential
elements of the crime were proven beyond a reasonable doubt.
In
Louisiana, second-degree murder is defined as “the killing of a
human being: (1) when the offender has a specific intent to kill
or to inflict great bodily harm; or (2) when the offender is
engaged in the perpetration or attempted perpetration of...armed
robbery, first degree robbery, second degree robbery, [or] simple
robbery...even though he has no intent to kill or inflict great
bodily harm.”
La. Rev. Stat. § 14:30.1(A)(1).
Specific intent
is defined as the state of mind in which the perpetrator
“actively desired the prescribed criminal consequences to follow
his act or failure to act.”
La. Rev. Stat. §14:10(1).
4
Intent
need not be proven directly but may be inferred from the actions
of the defendant and the circumstances surrounding those actions.
State v. Tate, 851 So.2d 921, 930 (La. 2003)(citing State v.
Brooks, 505 So.2d 714, 717 (La. 1987)).
As discussed extensively
in the Magistrate Judge’s Report and Recommendation, the jury had
ample evidence and testimony to conclude that Ducros committed
second-degree murder.
The Magistrate Judge articulated the
testimony and evidence presented at trial as follows:
Duncan [the victim] and Ducros argued about his
presence in her home. After the argument moved
outside, Ducros was seen standing over Duncan with a
knife in his hand. Duncan was sitting on the grass
calling out for Ducros to stop. After a neighbor also
called out for him to stop, Ducros stabbed Duncan.
Their son, David, saw Ducros stab Duncan twice. The
autopsy revealed that Duncan had at least nine cuts and
stab wounds. The wounds were caused by a knife similar
to the one found near the dumpster at the apartment
complex where the killing occurred. Duncan’s blood
also was found in Ducros’ss car and on the t-shirt in
the trunk. This was the same car in which he left the
scene of the stabbing.3
There was more than sufficient evidence for a rational trier of
fact to have found that the State proved Ducros had the requisite
intent to kill or cause great bodily harm to Duncan, who died as
a result of the stabbing.
The state court’s denial of relief on
this claim was not contrary to, or an unreasonable application of
Jackson.
3
R. Doc. 14 at 22.
5
Ducros’s claim that the trial court gave a defective
reasonable doubt charge to the jury does not have an arguable
basis in law or in fact.
“The beyond a reasonable doubt standard
is a requirement of due process, but the Constitution neither
prohibits trial courts from defining reasonable doubt nor
requires them to do so as a matter of course.”
Nebraska, 511 U.S. 1, 5 (1994).
Victor v.
As the Magistrate Judge
explained, the jury instruction given by the state trial court
does not employ any of the problematic language previously
addressed by the Supreme Court.
See Id. at 5-7; Cage v.
Louisiana, 498 U.S. 39, 39(1990); Williams v. Cain, 229 F.3d 468,
476 (5th Cir. 2000).
Accordingly, the state court’s denial of
relief on this claim was neither contrary to nor an unreasonable
application of Supreme Court precedent.
Ducros’s claims of ineffective assistance of counsel do not
have an arguable basis in law or in fact.
Ducros alleges that
his trial attorneys provided ineffective assistance when: (i)
they denied him the right to testify; (ii) they failed to
independently test exculpatory evidence; (iii) they presented a
“bogus” theory of defense; (iv) failed to call defense witnesses;
and (v) failed to object to the state trial court’s jury
instructions.
Ducros has failed to show that counsel’s
performance was deficient or that the alleged deficient
performance caused him prejudice.
6
See Strickland v. Washington,
466 U.S. 668, 687 (1984) (performance and prejudice test).
First, petitioner’s claim that counsel was ineffective for
denying him the right to testify has no arguable basis in law or
fact.
The petitioner has the burden of proving that he was
denied this right.
“[A] petitioner in a habeas proceeding cannot
prevail on such a claim merely by stating to the habeas court
that he told his trial attorney that he wished to testify and
that his attorney forbade him from taking the witness stand.”
Turcios v. Dretke, 2005 WL 3263918, at *6 (S.D. Tex. 2005)(citing
Underwood v. Clark, 939 F.2d 473, 475-76 (7th Cir. 1991)).
The
Magistrate Judge gave Ducros additional time to submit evidence
in support of his assertion that his counsel prevented him from
testifying.
Ducros submitted affidavits he sent to his counsel
Thomas Murphy and Harold Duclox.
These affidavits are not signed
by his attorneys and therefore do not support his claim.
Ducros
also submitted an affidavit signed by Subrina Ducros stating that
Thomas Murphy told her that whether Ducros testified was his
decision.
This affidavit is unreliable hearsay.
The Court
reviewed this evidence and adopted the Magistrate’s Report
recommending dismissal with prejudice.
Ducros has not submitted
any evidence that would warrant a departure from the Court’s
earlier determination.
Second, petitioner’s claim that counsel
was ineffective for failing to independently test exculpatory
evidence has no arguable basis in law or fact.
7
Ducros did not
demonstrate that his counsel acted unreasonably in failing to
have the murder weapon DNA-tested, or that, but for counsel’s
failure, the verdict would have been different.
Nor does
Ducros’s claim that his counsel presented a “bogus” defense
theory have an arguable basis in law or fact.
A defendant’s
desire to have a specific defense theory presented does not
amount to ineffective assistance of counsel.
Johnson v.
Cockrell, 301 F.3d 234, 239 (5th Cir. 2002).
Further,
petitioner’s claim that counsel was ineffective for failing to
call defense witnesses has no arguable basis in law or fact.
Ducros does not identify the witnesses who should have been
called, or provides any proof that the testimony of the
unidentified witnesses would have altered the outcome of the
trial.
Finally, because, as discussed above, the court’s
instructions were not objectionable, counsel was not ineffective
for failing to object to the instruction.
For the reasons stated in the Report and Recommendation
adopted by the Court, the Court did not issue a certificate of
appealability.
Specifically, the Court found that after
reviewing each of Ducros’s claims on the merits, Ducros had not
made a substantial showing of the denial of a constitutional
right and the issues would not engender debate among reasonable
jurists.
8
Based on the foregoing, the Court finds that Ducros’s
assertions do not have an arguable basis in law or in fact, and
his appeal is therefore frivolous.
III. CONCLUSION
Accordingly, the Court DENIES Ducros’s motion for leave to
appeal in forma pauperis.
New Orleans, Louisiana, this
3rd
day of October, 2011.
SARAH S. VANCE
UNITED STATES DISTRICT JUDGE
9
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