McGeorge v. Cain
Filing
15
ORDER AND REASONS: ORDERED that petitioner's Objections to the Magistrate Judge's REPORT AND RECOMMENDATIONS 12 are Overruled and that petitioner's petition for federal habeas corpus review is Dismissed with Prejudice. Signed by Judge Ivan L.R. Lemelle.(ijg, )
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
KENNETH MCGEORGE
CIVIL ACTION
VERSUS
NO. 11-1528
BURL CAIN, WARDEN
SECTION: “B”(2)
ORDER AND REASONS
Before
the
Court
is
Petitioner
Kenneth
McGeorge’s
(“Petitioner”) Objections (Rec. Doc. No. 13) to the Magistrate
Judge’s Report and Recommendation (Rec. Doc. No. 12), recommending
dismissal with prejudice of Petitioner’s habeas corpus petition
under
28
U.S.C.
§
2254.
Accordingly,
and
for
the
reasons
articulated below,
IT IS ORDERED that Petitioner’s Objections to the Magistrate
Judge’s Report are OVERRULED and that Petitioner’s petition for
federal habeas corpus review is DISMISSED WITH PREJUDICE.
PROCEDURAL HISTORY
Petitioner was indicted for second degree murder in St.
Tammany
Parish
Petitioner
on
filed
June
27,
pretrial
2002.
motions
(Rec.
to
Doc.
suppress
No.
the
12,
p.2).
evidence
including, inter alia, photographs, his confession to the police,
and the evidence of his identification. (Rec. Doc. No. 12, p.5).
Petitioner later waived the motion to suppress the photographic
evidence. (Id.).
Petitioner was tried before a jury on May 15-18, 2006 and was
found guilty and sentenced to life imprisonment, without benefit of
parole. (Id.). The trial court denied his motion for a new trial.
(Id.).
On direct appeal to the Louisiana First Circuit Court of
Appeal, Petitioner asserted three assignments of error: 1) the
evidence was insufficient to support the verdict, 2) the trial
court erroneously denied his motion to re-open the motion to
suppress the evidence previously waived, and 3) the trial court
erroneously denied two motions for mistrial. (Rec. Doc. No. 12,
pp.5-6). The appellate court affirmed the conviction on February 8,
2008, finding no merit. Petitioner did not seek rehearing or file
for review in the Louisiana Supreme Court. (Rec. Doc. No. 12, p.6).
On September 24, 2008, Petitioner’s newly retained counsel
filed an application for post-conviction relief asserting eleven
(11) grounds for relief. (Rec. Doc. No. 12, pp.6-7).1
The State
answered, arguing that the application was without merit, that the
tenth claim was not a proper ground for post-conviction relief and
was repetitive, that the eleventh claim was also not a proper
ground for review, and that the claims in the application did not
warrant
a
hearing.
(Rec.
Doc.
No.
12,
pp.7-8).
Petitioner
supplemented his application relating to his motion to suppress to
include an argument under Arizona v. Gant,
556 U.S. 332 (2009).
(Rec. Doc. No. 12, p.8). The trial court denied Petitioner’s
1
Grounds 1-9 alleged ineffectiveness of counsel, ground 10 re-raised the
issues presented on direct appeal, and ground 11 requested an evidentiary
hearing. (Rec. Doc. No. 12, pp.6-7).
2
application and his subsequent motion for reconsideration. (Rec.
Doc. No. 12, pp.8-9).
Petitioner then filed a writ application with the Louisiana
First Circuit
erroneously
Court
denied
of
the
Appeal
alleging
application
for
that the
trial
post-conviction
court
relief
without an evidentiary hearing on the ineffective assistance of
counsel claims, which was denied on May 12, 2010. (Rec. Doc. No.
12, p.9).
Petitioner then filed a writ with the Louisiana Supreme
Court, again seeking only review of the trial court’s denial of an
evidentiary
hearing
on
the
ineffective
assistance
of
counsel
claims, which was denied on February 4, 2011. (Id.).
On June 28, 2011, Petitioner filed his Petition for Relief
Under 28 U.S.C. § 2254. (Rec. Doc. No. 1). In his Petition, he
assigned nine grounds for relief, which included seven claims of
ineffective counsel, insufficiency of the evidence, and the claims
raised on direct appeal. (Rec. Doc. No. 12, pp.10-11).
The
Magistrate Judge issued his Report and Recommendation, recommending
that the Petition be denied. (Rec. Doc. No. 12).
Petitioner timely filed his Objections to the Report and
Recommendation of the Magistrate Judge. (Rec. Doc. No. 13).
CONTENTIONS OF PETITIONER
Petitioner asserts the following objections: 1) that his
claims were exhausted and are ripe for consideration; 2) that
ineffective assistance of counsel cumulatively prejudiced trial
3
proceedings; 3) that the State did not prove that Petitioner did
not act in self-defense and, thus, the evidence was insufficient to
support the returned verdict; 4) that the trial court erred in
denying Petitioner’s motion to re-open the motion to suppress,
which had been waived, and; 5) that the trial court erred in
denying Petitioner’s motions for mistrial. (Rec. Doc. No. 13, pp.12). Petitioner further requests an evidentiary hearing on the
claims presented. (Rec. Doc. No. 13, p.2). The State has not filed
a brief in response.
LAW AND ANALYSIS
A.
Standard of Review
Petitioner’s original writ for federal habeas corpus review
under 28 U.S.C. § 2254 was filed with this Court on June 28, 2011.
(Rec. Doc. No. 1). As this is after the effective date for the
Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”),
applicable to habeas corpus petitions, his petition is governed by
§ 2254 as amended by AEDPA. Flanagan v. Johnson, 154 F.3d 196, 198
(5th Cir. 1998)(citing Lindh v. Murphy, 521 U.S. 320 (1997)). As
amended by
AEDPA,
the
standard
of
review under
§
2254(d)(1)
provides deference to the state court’s determinations on questions
of law and law and fact 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).
4
The amended subsections of 2254(d)(1) and (2) include the
standards of review for questions of law, questions of fact, and
mixed questions of law and fact. A federal court may issue a habeas
writ under the “contrary to” clause if “the state court applies a
rule different from the governing law set forth in [the Supreme
Court’s] cases, or if it decides a case differently than [the
Supreme Court has] done on materially indistinguishable facts.”
Bell
v.
Cone,
535
U.S.
685,
686
(2002)
(internal
citations
omitted). An unreasonable application of federal law in a state
court’s decision is one that is “objectively unreasonable” as
applied to the facts of a particular case. Williams v. Taylor, 529
U.S. 362, 409 (2000). For questions of fact, § 2254(d)(2) requires
that a state court’s decision will be presumed correct 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).
B.
Procedural Exhaustion
The Magistrate Judge found that Petitioner did not exhaust any
of the claims raised in his post-conviction application except for
his request for an evidentiary hearing. (Rec. Doc. No. 12, p.12).
Petitioner objected to this finding. (Rec. Doc. No. 13, p.1).
However, the Magistrate Judge did not rest his findings on this
alleged procedural default. (Rec. Doc. No. 12, p.14). Further,
because the Magistrate Judge found that Petitioner did not exhaust
5
or fully adjudicate his claims in the Louisiana state courts, the
Magistrate Judge applied the less deferential, pre-AEDPA de novo
standards of review to the substance of Petitioner’s claims. (Rec.
Doc. No. 12, p.15).2
The Magistrate Judge’s finding of the lack of exhaustion did
not negatively impact the determination of Petitioner’s claims.
Thus, this Court will not review the Magistrate Judge’s finding for
error in this respect.
C.
Cumulative Prejudice for Ineffective Assistance of Counsel
Petitioner objects to the Magistrate Judge’s finding that he
“has not shown his entitlement to consideration of or relief on the
theory of cumulative error arising from counsel’s performance.”
(Rec. Doc. No. 12, p.65; see also Rec. Doc. No. 13, pp.1-2).
Petitioner, citing United States v. Levy, 377 F.3d 259 (2nd Cir.
2004),
argues
that
“his
trial
counsel’s
multiple
errors
collectively prejudiced the trial by presenting an incomplete
version of
events.”
(Rec.
Doc.
No.
Petitioner
maintains
that
his
trial
13,
p.4).
counsel
Specifically,
failed
to:
1)
investigate Petitioner’s case; 2) impeach the State’s witnesses; 3)
communicate with Petitioner for trial; 4) challenge the State’s
expert witness; 5) communicate with the private investigator hired
2
The deferential AEDPA standards of review do not apply to claims not
fully adjudicated on the merits in state court. Cullen v. Pinholster, ___ U.S.
___, 131 S.Ct. 1388, 1401 (2011). Federal courts review these claims under the
pre-AEDPA de novo standards of review. Henderson v. Cockrell, 333 F.3d 592, 598
(5th Cir. 2003).
6
to assist in the case, and; 6) assert a valid mitigation defense or
to consult or hire an expert relating to that defense. (Rec. Doc.
No. 13, p.2).3
The
cumulative
error
doctrine,
which
provides
that
an
aggregation of non-reversible errors (i.e., plain errors failing to
necessitate reversal and harmless errors) can yield a denial of the
constitutional right to a fair trial and can call for the reversal
of a criminal conviction. United States v. Delgado, 672 F.3d 320,
343-44 (5th Cir. 2012), citing United States v. Munoz, 150 F.3d
401, 418 (5th Cir. 1998). But, the doctrine justifies reversal only
when errors "so fatally infect the trial that they violated the
trial's fundamental fairness." Id. at 344. The Fifth Circuit has
repeatedly
emphasized
that
the
cumulative
error
doctrine
necessitates reversal only in rare instances.4 "The possibility of
cumulative error is often acknowledged but practically never found
persuasive." Derden v. McNeel, 978 F.2d 1453, 1456 (5th Cir. 1992)
(en banc).
3
The Magistrate Judge applied the two-part test from Strickland v.
Washington, 466 U.S. 668, 687 (1984) to each of Petitioner’s claims of
ineffective assistance of counsel. Petitioner does not object to the individual
findings, but limits his objection to the cumulative error doctrine. (Rec. Doc.
No. 13, p.1).
4
See, e.g., United States v. Villarreal, 324 F.3d 319, 328 (5th Cir. 2003)
("We have stressed, however, that a reversal based on the cumulative effect of
several alleged errors is a rarity."). See also, United States v. Reedy, 304 F.3d
358, 373 (5th Cir. 2002); United States v. Wicker, 933 F.2d 284, 292 (5th Cir.
1991); and United States v. Lindell, 881 F.2d 1313, 1327 (5th Cir. 1989).
7
The Fifth Circuit has unequivocally held that “ineffective
assistance of counsel cannot be created from the accumulation of
acceptable decisions and actions.” United States v. Hall, 455 F.3d
508, 520 (5th Cir. 2006), citing Miller v. Johnson, 200 F.3d 274,
286 n.6 (5th Cir. 2000).
As noted previously, Petitioner does not
object to the individual findings, but limits his objection to the
cumulative error doctrine. (Rec. Doc. No. 13, p.1).
In light of clear Fifth Circuit precedent, the Magistrate
Judge’s
ruling
as
to
Petitioner’s
cumulation
claim
is
not
erroneous and supported by record evidence.
D.
Petitioner’s Claim of Self-Defense and Sufficiency of the
Evidence
Petitioner also objects to the Magistrate Judge’s finding that
the record contains more than sufficient evidence supporting the
jury’s verdict. The Magistrate Judge reviewed the record adduced at
trial in the light most favorable to the prosecution and found that
a rational trier of fact could have found that the essential
elements of the crime of second degree murder were proven beyond a
reasonable doubt. (Rec. Doc. No. 12, p.16).
Petitioner’s objections largely rest on the contention that
the evidence against him was circumstantial in nature. (Rec. Doc.
No. 13, pp.2-3, n.1). However, the evidence adduced at trial showed
that Petitioner had a long-standing, amicable relationship with his
victim,
the
Petitioner
victim
seen
one
had
on
not
the
been
carrying
victim’s
8
a
person,
firearm
and
nor
had
Petitioner
consistently and admittedly lied to police about the shooting and
his
dumping
of
the
victim’s
body.
The
jury’s
credibility
determinations regarding Petitioner’s fear and apprehension during
the incident are not subject to second-guessing at this juncture.
The
Magistrate
witnesses,
including
Judge
reviewed
Petitioner,
the
and
testimony
found
that
of
several
the
jury’s
determinations were reasonable. Reviewing the trial evidence as a
whole,5 the Magistrate Judge’s finding that the State proved beyond
a reasonable doubt that Petitioner did not act in self-defense, but
with the specific intent to kill or commit great bodily harm is not
erroneous and, again, supported by the record.
E.
Motion to Re-Open Previously Waived Motion to Suppress
Petitioner maintains that the Magistrate Judge erroneously
determined that he was not denied a full and fair opportunity to
present his Fourth Amendment claims when the trial court denied his
request to re-open his suppression motion. (Rec. Doc. No. 13, pp.56).
A “full and fair hearing means that ‘where there are facts in
dispute, full and fair consideration requires consideration by the
fact-finding court, and at least the availability of meaningful
appellate review by a higher state court.'" Davis v. Blackburn, 803
5
In McDaniel v. Brown, ___ U.S. ___, 130 S.Ct. 665, 672, 674 (2010), the
Supreme Court held that a reviewing court is to consider the trial evidence as
a whole under Jackson v. Virginia, 443 U.S. 307 (1979).
9
F.2d 807, 808 (5th Cir. 1986) (per curiam) (quoting O'Berry v.
Wainwright, 546 F.2d 1204, 1213 (5th Cir. 1977)).
In Stone v. Powell, 428 U.S. 465, 494 (1976), the Supreme
Court held that "where the State has provided an opportunity for
full
and
fair
litigation
of
a
Fourth
Amendment
claim,
the
Constitution does not require that a state prisoner be granted
federal habeas corpus relief on the ground that evidence obtained
in an unconstitutional search or seizure was introduced at his
trial." The Stone bar applies despite any state trial court error
in deciding the merits of Petitioner's Fourth Amendment claim, even
despite a trial court's initial decision to deny an evidentiary
hearing. Andrews v. Collins, 21 F.3d 612, 631-32 (5th Cir. 1994);
Christian, 731 F.2d at 1199 n.1; Swicegood v. Alabama, 577 F.2d
1322, 1324-25 (5th Cir. 1978).
On direct appeal to the Louisiana First Circuit Court of
Appeal, Petitioner argued that the trial court erroneously denied
his motion to re-open the motion to suppress the evidence, which he
previously waived. (Rec. Doc. No. 12, pp.5-6). The appellate court
affirmed the conviction on February 8, 2008 finding no merit; and
Petitioner did not seek rehearing or file for review in the
Louisiana Supreme Court. (Rec. Doc. No. 12, p.6).
The Magistrate Judge, therefore, did not commit error in
finding Petitioner was permitted a full and fair opportunity to
litigate his Fourth Amendment claims based on our record review.
10
F.
Motions for Mistrial
Petitioner filed two motions for mistrial, one based on the
State’s reference to the waiver of the motion to suppress and the
other based on a State witness’s reference to Petitioner’s postarrest silence. (Rec. Doc. No. 12, p.37). Petitioner objects to the
Magistrate Judge’s findings that the motions for mistrial were
properly denied. To the extent that Petitioner’s objection
raises a question of due process, the Magistrate Judge reviewed
both denials and found that they were proper. (Rec. Doc. No. 12,
pp.38-39, 41-42).
Petitioner complains that the prejudicial effects of these
statements deprived him of a fair trial. (Rec. Doc. No. 13, p.6).
"The test applied to determine whether a trial error makes a trial
fundamentally unfair is whether there is a reasonable probability
that the verdict might have been different had the trial been
properly conducted." Styron v. Johnson, 262 F.3d 438, 454 (5th Cir.
2001) (quoting Rogers v. Lynaugh, 848 F.2d 606, 609 (5th Cir.
1988)).
1.
The State’s Reference to the Waiver of the Motion to
Suppress
During
defense
counsel’s
questioning
of
a
witness,
the
prosecution objected, citing that Petitioner waived the Motion to
Suppress
Evidence.
(Rec.
Doc.
No.
12,
pp.38-39).
Petitioner
responded with a motion for mistrial. (Rec. Doc. No. 12, p.39). On
direct appeal, the Louisiana First Circuit Court of Appeal found
11
that the prosecutor’s vague reference to Petitioner’s motion to
suppress was not particularly pertinent to the trial or damaging to
Petitioner’s case, thus depriving him of a fair trial. (Id.).
The Magistrate Judge found that Petitioner had “fallen well
short of proving that the comment by the prosecutor had an impact
on the verdict,” especially in light of the overwhelming evidence
of Petitioner’s guilt. (Rec. Doc. No. 12, p.41). The Magistrate
Judge's finding here is supported by the state record.
2.
A State Witness’s Reference to Petitioner’s Post-Arrest
Silence
In the second instance, Petitioner moved for a mistrial after
a witness referenced his decision not to talk after being read his
Miranda rights. (Rec. Doc. No. 12, p.42). After a hearing outside
the presence of the jury, the trial court denied the motion. (Id.).
The Louisiana First Circuit Court of Appeal upheld the denial,
finding that the remark was not intended to impeach Petitioner and,
thus, did not fall under the purview of Doyle v. Ohio, 426 U.S. 610
(1976) (concluding that the use of a defendant's post-arrest
silence for impeachment purposes violates due process).
Insofar as the witness’s statement is considered a Doyle
error, it nonetheless was harmless and did not adversely impact the
jury.
In Brecht v. Abrahamson, 507 U.S. 619 (1993), the United
States Supreme Court established the standard for determining
whether a Doyle error merits relief on collateral review.
The
Court concluded that the prosecution’s infrequent reference to the
12
defendant’s silence did not substantially influence the jury’s
verdict where there was substantial evidence of guilt. Brecht at
639.
The
witness’s statement “had virtually no evidentiary
significance” and, thus, was harmless. Record evidence of guilt
was overwhelming.
G.
Evidentiary Hearing
Petitioner lastly objects to the Magistrate Judge’s denial of
an evidentiary hearing. Because the Magistrate Judge was correct in
finding no unreasonable application of the law or determination of
the facts, and based on the sufficiency of the current record, an
evidentiary hearing is unnecessary under § 2254(d). See 28 U.S.C.
§ 2254(e)(2). The conditions for such a hearing have not been
established.
The subject habeas petition is thereby dismissed.
New Orleans, Louisiana, this 26th day of June, 2012.
________________________________
UNITED STATES DISTRICT JUDGE
13
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