Harvey v. Cain et al
Filing
15
ORDER AND REASONS: Ordered that the REPORT AND RECOMMENDATIONS 13 of the Magistrate Judge be affirmed as set forth in document. Signed by Judge Ivan L.R. Lemelle on 6/15/2012.(ijg, )
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
DWAYNE HARVEY
CIVIL ACTION
VERSUS
NO. 11-2121
N. BURL CAIN, WARDEN
SECTION: “B”(3)
ORDER AND REASONS
Before
the
Court
is
Petitioner
Dwayne
Harvey’s
(“Petitioner”) Objections (Rec. Doc. No. 14) to the Magistrate
Judge’s
Report
recommending
and
dismissal
Recommendation
(Rec.
with
of
prejudice
Doc.
No.
Petitioner’s
13),
habeas
corpus petition under 28 U.S.C. § 2254. Accordingly, and for the
reasons articulated below,
IT IS ORDERED that the findings of the Magistrate Judge
(Rec. Doc. No. 13) be AFFIRMED, that Petitioner’s application for
federal habeas corpus review be DISMISSED WITH PREJUDICE, and
that
Petitioner’s
request
for
issuance
of
a
certificate
of
appealability is DENIED.
On April 12, 2007, Petitioner presently incarcerated in the
Louisiana
State
Penitentiary
in
Angola,
Louisiana
was
found
guilty of one count of distribution of cocaine and one count of
possession with intent to distribute cocaine under Louisiana law.
(Rec. Doc. No. 13 at 1-2). Petitioner was found to be a multiple
offender and was sentenced to term of sixty years imprisonment on
the conviction of distribution of cocaine and to a concurrent
term of thirty years imprisonment on the conviction of possession
with the intent to distribute cocaine on August 17, 2007. Id. at
2. The Louisiana Fourth Circuit Court of Appeal affirmed those
convictions and sentences on May 13, 2009. Id.
Petitioner filed an application for post-conviction relief
with
the
state
district
court
on
March
12,
2010.
Id.
That
application was denied on April 9, 2010. The Louisiana Fourth
Circuit Court of Appeal likewise denied Petitoner’s related writ
applications on May 14, 2010, and the Louisiana Supreme Court
denied his writ on June 3, 2011. Id.
Petitioner filed the instant federal application for habeas
corpus
relief
on
August
19,
2011,
in
which
he
claims:
(1)
Petitioner’s habitual offender adjudication was defective because
he
was
not
advised
of
his
rights
during
the
proceeding
and
because the state failed to meet its burden of proof; and (2)
Petitioner’s appellate counsel was ineffective for failing to
raise the foregoing claim on appeal. Id. at 3.
The State filed a response in opposition to the instant
petition, alleging (1) Petitioner’s defective habitual offender
adjudication
claim
is
procedurally
barred;
(2)
Petitioner’s
ineffective assistance of counsel claim fails on the merits.
(Rec. Doc. No. 13 4,16).
Petitioner
filed
a
response
to
the
State’s
opposition
alleging (1) he was not properly advised of his right to remain
silent
during
his
Habitual
Offender
Adjudication;
and
(2)his
assistance of counsel was ineffective. (Rec. Doc. No. 14 at 1-3).
2
LAW AND ANALYSIS
A. Standard of Review
Petitioner filed his original writ for habeas corpus relief
on August 29, 2011, under 28 U.S.C. § 2254 as a prisoner in state
custody. (Rec. Doc. No. 18 at 4). This petition is governed by §
2254 as amended by the Antiterrorism and Effective Death Penalty
Act of 1997 (“AEDPA”). Flanagan v. Johnson, 154 F.3d 196, 198
(5th Cir. 1998) (citing Lindh v. Murphy, 521 U.S. 320 (1997)).
Under § 2254 (d)(1), mixed questions of law and fact are given
deference unless the decision 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).
A
federal
court
may
issue
a
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, 523
U.S. 685 (2002). “A federal court may grant a writ under the
‘unreasonable application’ clause if the state court correctly
identifies the governing legal principle from [Supreme Court]
decisions
but
unreasonably
applies
it
to
the
facts
of
the
particular case.” Id. at 694. “The focus of the latter inquiry is
whether
the
state
court’s
application
of
clearly
established
federal law is objectively unreasonable.” Id.
Under § 2254(d)(2), a federal court will give deference to a
question of fact unless it was “a decision that was based on an
unreasonable determination of the facts in light of the evidence
3
presented in the State court proceeding.” 28 U.S.C. § 2254(d)(2).
A federal court may not grant a writ of habeas corpus because it
independently
decides
that
a
state
court
incorrectly
applied
Supreme Court precedent. Neal v. Puckett, 286 F.3d 230, 246 (5th
Cir. 2002). Petitioner carries the burden of proving that the
state court applied the facts to Supreme Court precedent in an
objectively unreasonable manner. Price v. Vincent, 538 U.S. 634,
641 (2003); Neal, 286 F.3d at 246.
Federal habeas review is barred when the state court has
relied on independent and adequate state procedural rules in
finding
a
claim
defaulted
unless
the
petitioner
demonstrated
either cause and prejudice or that a failure to address the claim
will result in a fundamental miscarriage of justice. Hughes v.
Johnson, 191 F.3d 607, 614 (5th Cir. 1999).
In the instant case, the Louisiana Supreme Court denied
relief without discussion, citing La.C.Cr.P.art. 930.3; State ex
rel. Melinie v. State, 93-1380 (La. 1/12/96), 665 So.2d 1172; see
also State v. Thomas, 08-2912, (La. 10/16/09), 19 So.3d 446.
(Rec. Doc. No 18 at 4). The state court’s decisions all concern
state procedural rules, thus federal habeus review is barred
unless
Petitioner
can
demonstrate
cause
and
prejudice
or
a
fundamental miscarriage of justice.
Petitioner alleges that his default claim was caused by his
appellate
counsel’s
ineffectiveness
in
failing
to
assert
the
claim on direct appeal. (Rec. Doc. No. 18 at 6).
While, ineffective assistance of counsel on direct appeal
may provide cause to avoid a procedural bar, it is only if
4
counsel was indeed ineffective. Sherill v. Hargett, 184 F.3d
1172,
1176
ineffective,
(10th
Cir.
petitioner
1999).
must
To
prove
prove
that
counsel’s
counsel
was
performance
was
deficient and that the deficient performance was prejudicial.
Strickland v. Washington, 466 U.S. 668, 697 (1984). If petitioner
has an inadequate showing as to either of the two prongs, a court
may
dispose
of
the
ineffective
assistance
claim
without
addressing the other prong. Id.
Petitioner must show a reasonable probability that he would
have
prevailed
on
appeal
but
for
counsel’s
deficient
representation, in order to prove prejudice with respect to a
claim
that
appellate
counsel
was
ineffective.
Briseno
v.
Cockrell, 274 F.3d 204, 207 (5th Cir. 2001). Thus, an attorney’s
failure to raise meritless objections is not the basis of a
successful ineffective assistance of counsel claim because the
result of the proceeding would not have been different had the
attorney raised the issue. Clark v. Collins, 19 F.3d 959, 966
(5th Cir. 1994).
Generally, a habitual offender adjudication will be vacated
if, before a trial court accepts a stipulation, the defendant is
not advised of his right to remain silent and the state does not
prove identity, unless the hearing was nevertheless fundamentally
fair. State v. Boutte, 27 So.3d 1111 (La. App. 3rd Cir. 2010).
Louisiana courts have found hearings to be fundamentally fair,
despite the fact that there was no express advisement of the
right to remain silent. See State v. Thomas, 54 So.3d 1268, 127172 (La. App. 3rd Cir. 2011).
5
When confronted with testimony from the state’s fingerprint
expert
petitioner
entered
a
limited
stipulation
only
as
to
identity. (State Rec., Vol. III of IV, transcript of Aug. 10,
2007, pp. 4-5). Petitioner does not dispute here that he was in
fact the person who committed the predicate offense. Petitioner’s
counsel wisely stipulated to identity after recognizing the state
was easily going to meet its burden of proof on the issue. The
state trial judge also confirmed on the record with petitioner
that he understood the right to contest identity, the state’s
burden in that regard, and the need for a free and voluntary
waiver of rights by the petitioner as conditions predicate for
acceptance
of
the
stipulation.
(State
Rec.,
Vol.
III
of
IV,
transcript of Aug. 10, 2007, pp. 6-8). Therefore, Petitioner’s
hearing was fundamentally fair despite the fact that he was not
expressly told of his right to remain silent.
The
state
defendant’s
may
prior
use
any
convictions
competent
and
is
evidence
not
to
required
prove
to
the
use
a
specific type of evidence in order to carry its burden of proof
in a habitual offender proceeding. State v. Price, 66 So.3d 495,
504 (La. App. 5
th
Cir. 2011) writ denied, 2011 WL 6957850 (La.
Nov. 23, 2011).
A petitioner’s defaulted claim is procedurally barred, when
he fails to show cause and prejudice for the default of his claim
in state court, unless the application of the bar will result in
a fundamental miscarriage of justice. Badwell v. Dretke, 372 F.3d
748, 757 (5th Cir. 2004). However, a showing of a fundamental
miscarriage of justice requires an assertion of actual innocence.
6
Glover v. Cain, 128 F.3d 900, 904 (citing Glover v. Hargett, 56
F.3d 682, 284 (5th Cir. 1995)). The United States Fifth Circuit
found
that
when
dealing
with
alleged
sentencing
errors,
the
actual innocence requirement is only met when the petitioner
shows that “he would have not been legally eligible for the
sentence he received.” Haley v. Cockrell, 306 F.3d 257 (5th Cir.
2002).
In the instant case, Petitioner, his counsel and the judge
signed a Waiver of Constitutional Rights/Plea of Guilty Form that
set
forth
petitioner’s
rights
in
accordance
with
Boykin
v.
Alabama, 395 U.S. 238 (1969) (State Rec., Vol. II of IV). This
was sufficient for the state to meet its initial burden of proof.
After Petitioner signed the Waiver of Constitutional Rights/Plea
of Guilty form he had the burden to produce affirmative evidence
of an infringement of his rights or a procedural irregularity.
Petitioner fails to show anything to meet the latter burden.
Therefore,
the
state
was
not
required
to
produce
additional
evidence showing that the prior plea was knowing and voluntary.
State v. Flagg, 792 So.2d 133, 143 (La. App. 5th Cir. 2001).
There is no showing of a miscarriage of justice from application
of the procedural bar.
Further,
while
the
Louisiana
Supreme
Court
suggests
avoidance of the default where an appellate counsel argues
ineffective
assistance
in
the
same
appeal,
the
ineffective
assistance claim fails here on the merits - not exclusively on the
questionable procedural default. See Glover v. Hargett, 56 F.3d
682, 684 (5th Cir. 1995); Corzo v. Murphy, 2008
7
WL 3347394,
at *1 n.5 (EDLA 2008); Cobb v. Stalder, 2011 WL
3654402, at *7-9, adopted, 2011 WL 3664659 (EDLA 2011).
New Orleans, Louisiana this 15th day of June 2012.
__________________________________
UNITED STATES DISTRICT JUDGE
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