Crochet v. Goodwin
Filing
13
ORDER AND REASONS ADOPTING REPORT AND RECOMMENDATIONS 11 . Signed by Judge Ivan L.R. Lemelle.(ijg)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
DANIEL CROCHET
CIVIL ACTION
VERSUS
NUMBER: 13-3106
JERRY GOODWIN, WARDEN
SECTION: “B”(5)
ORDER AND REASONS
Before
the
Court
is
Daniel
Crochet’s
(“Petitioner”)
petition pursuant to 28 U.S.C. § 2254 for a writ of habeas
corpus.
Respondent,
Mr.
Jerry
Goodwin,
filed
memorandum in opposition to the petition.
an
answer
and
Petitioner filed a
memorandum in opposition to Respondent’s answer and the petition
was referred to the Magistrate Judge. Magistrate Judge North
issued a Report and Recommendation on May 16, 2014, wherein he
recommended the petition be dismissed with prejudice. Petitioner
timely filed objections to the Magistrate’s ruling on May 30,
2014 (Rec. Doc. No. 12).
IT
IS
Magistrate
OVERRULED.
ORDERED
that
Judge’s
For
the
Report
following
Petitioner’s
and
Objections
Recommendation
reasons,
the
to
the
are
hereby
Magistrate
Judge’s
Report and Recommendation is hereby ADOPTED, and Petitioner’s
petition
for
federal
habeas
corpus
review
is
DISMISSED
WITH
PREJUDICE without merit.1
1
We are grateful for work on this case by Nicholas Norris, a
Tulane University Law School extern with our Chambers.
1
Causes of Action and Facts of Case:
The petition arises out of Petitioner’s incarceration at
the
David
September
information
Revised
Wade
14,
Correctional
2007,
with
Statute
Mr.
Crochet
aggravated
14:60.2
He
Center
in
was
burglary
pled
not
Homer,
charged
pursuant
guilty
on
Louisiana.
by
to
On
bill
of
Louisiana
September
17,
2007.3 Crochet subsequently withdrew his plea of not guilty and
pled guilty to the aggravated burglary charge on January 28,
2008.4 The prosecutor gave the following note of evidence at the
time of the guilty plea:
With respect to Mr. Crochet, on September 6th, 2007, he
entered 595 Brookmeade Drive, a home belonging to Raymond
Liss. And the Bill of Information had previously listed
Philip Trupiano as the owner, so I’m going to change that
on the Bill. And he armed himself with a weapon while he
was inside. He was apprehended inside the residence.5
The trial court sentenced Crochet to fifteen years imprisonment
at hard labor with credit for time served, to run concurrently
with all sentences being served. On the same date, the State
filed a multiple offender bill of information charging Crochet
as a second felony offender. Upon Crochet’s guilty plea to the
2
State Rec., Vol. 3 of 4, Bill of Information, Twenty-Fourth
Judicial District Court for the Parish of Jefferson; Rec. Doc.
No. 1, Exhibit 5.
3
Id., Minute entry dated 9/17/2007.
5
Id., Transcript of Guilty Plea and Sentencing held 1/28/08, p.
91.
2
multiple offender bill, the trial court vacated the previous
sentence and imposed a sentence of fifteen years imprisonment at
hard labor with credit for time served, to run concurrently with
all sentences being served.6
Crochet appealed to the Louisiana Fifth Circuit Court of
Appeal. His counsel filed an Anders brief pursuant to Anders v.
California, 386 U.S. 738 (1967), seeking to withdraw as counsel
of record.7 Crochet filed a pro se supplemental brief, asserting
two claims: (1) ineffective assistance of trial counsel; and (2)
excessive sentence.8 On February 15, 2011, the court of appeal
affirmed
his
conviction
and
sentence
and
granted
counsel’s
motion to withdraw.9 The court of appeal rejected his excessive
sentence claim because the sentence was imposed in accordance
with a sentencing agreement, and it imposed only the minimum
penalty
term.
The
court
declined
to
review
the
ineffective
6
Id., Waiver of Rights– Plea of Guilty Multiple Offender - La.
R.S. 15:529.1 entered 1/28/08 (Rec. Doc. No.1, Exhibit 7);
Minutes of hearing 1/28/08 (Rec. Doc. No. 1, Exhibit 8); see
also Transcript of Plea and Sentencing, pp. 16-18 (Rec. Doc. No.
1,Exhibit 9). The transcript reflects that two defendants,
Daniel Crochet and Arthur Lopez, appeared before the trial
court, represented by their respective attorneys, for entry of
guilty pleas and sentencing on January 28, 2008.
7
Rec. Doc. No. 1, Exhibit 18.
8
Id., Exhibit 21.
9
State v. Crochet, 2010-387 (La.App. 5 Cir. 2/15/11), 61 So.3d
725.
3
assistance of counsel claim. Crochet did not seek direct review
to the Louisiana Supreme Court.
On June 27, 2011, Crochet filed an application for postconviction
relief
application,
he
in
the
asserted:
state
(1)
district
La.
Rev.
court.10
Stat.
In
14:60
that
is
unconstitutionally vague, and (2) his counsel was ineffective in
(a) failing to object to the defective bill of information on
the charged offense: aggravated burglary; (b) advising him to
plead
guilty
before
investigating
and
discovering
that
the
evidence did not support the charge of aggravated burglary; (c)
failing to object to the multiple offender bill of information
based
on
improper
identification
in
the
multiple
bill
and
invalidity of the guilty plea to the predicate offense; and (d)
committing cumulative errors that rendered Petitioner’s guilty
plea involuntary.11
10
Rec. Doc. No. 1, Exhibit 24; see also State Rec., Vol. 2 of 4,
Uniform Application for Post-Conviction Relief dated June 27,
2011. Federal habeas courts must apply Louisiana’s “mailbox
rule” when determining the filing date of a Louisiana state
court filing, and therefore such a document is considered filed
as of the moment the prisoner “placed it in the prison mail
system.” Causey v. Cain, 450 F.3d 601, 607 (5th Cir. 2006). If
that date cannot be gleaned from the state court record with
respect to the filing, this Court will use the signature date of
the applications as the filing date. Here, petitioner’s pro se
post-conviction relief application was timely filed. It bore a
signature date of June 27, 2011, a notary signature of June 30,
2011, and a file-stamp date of July 12, 2011.
11
Id.; also at Rec. Doc. No. 1, Exhibit 24, Memorandum in
Support of PCR application.
4
Kevin
Boshea
Petitioner
argument
and
on
subsequently
filed
these
a
enrolled
supplemental
claims.12
On
January
as
counsel
brief
with
24,
2012,
for
additional
the
state
district court denied relief on the merits except as to the
ineffective assistance of counsel claim regarding the multiple
bill, which it rejected as procedurally barred under Louisiana
Code of Criminal Procedure Article 930.3.13 Crochet’s retained
counsel sought supervisory writs to the Louisiana Fifth Circuit
Court
of
Appeal,
unconstitutionally
asserting:
vague;
(2)
(1)
the
La.
Rev.
evidence
Stat.
was
14:60
is
inadequate
to
support the elements of aggravated burglary; and (3) ineffective
assistance of trial counsel in failing to object to the multiple
offender bill.14 On April 25, 2012, the court of appeal issued an
order denying the first two claims on the merits and rejecting
the third claim as non-cognizable on post-conviction review.15
Counsel for Crochet filed a writ application to the Louisiana
Supreme Court raising the same claims.16 On November 21, 2012,
12
Rec. Doc. No. 1, Exhibit 26.
13
Id., also at Rec. Doc. No. 1, Exhibit 30, District Court
Judgment denying post-conviction relief, No. 07-5332 “E”
(1/24/12).
14
Rec. Doc. No. 1, Exhibit 31.
15
State Rec., Vol. 2 of 4, State v. Crochet, 2012-245 (La. App.
5th Cir. 4/25/12).
16
Rec. Doc. No. 1, Exhibit 32.
5
the
Louisiana
Supreme
Court
denied
relief
without
stated
reasons.17
On
federal
May
17,
2013,
application
Crochet’s
for
retained
habeas
corpus
counsel
filed
relief.
In
his
his
application, Crochet asserts he received ineffective assistance
of counsel because trial counsel: (a) erroneously advised him to
plead guilty to aggravated burglary and (b) erroneously advised
him to enter a plea of guilty to the multiple offender bill.
Crochet argues that the advice in both instances was based on
counsel’s inadequate investigation and review of the evidence in
this
case,
which
would
have
shown
there
was
insufficient
evidence to support either an aggravated burglary conviction or
second
felony
offender
status.
The
State
filed
a
response
conceding that the federal application is timely. The record
also demonstrates that the claims were properly exhausted.18
17
State Rec., Vol. 4 of 4, State v. Crochet, 2012-1158 (La.
11/21/12), 102 So. 3d 52.
18
The State asserts Petitioner’s first claim is unexhausted. The
Magistrate Court found, however, that the substance of that
claim was “fairly presented” to all of the state courts in the
context of ineffective assistance of counsel in failing to
recognize the insufficiency of the evidence when advising
Petitioner to plead guilty to aggravated burglary. 28 U.S.C. §
2254 (b)(1)(A); Picard v. Connor, 404 U.S. 270, 275-78 (1971).
As evidenced by the reasons for judgment issued by the state
district court and the Louisiana Fifth Circuit, the issue was
presented to, and addressed by, the state courts. The same
issues were briefed to the Louisiana Supreme Court, who denied
relief without stated reasons.
6
Law and Analysis:
I.
Standard of Review
The Antiterrorism and Effective Death Penalty Act of 1996
(“AEDPA”)
role
in
comprehensively
reviewing
state
“modified
prisoner
a
federal
habeas
applications
in
court’s
order
to
prevent federal habeas ‘retrials’ and to ensure that state-court
convictions are given effect to the extent possible under law.”
Bell v. Cone, 535 U.S. 685, 693 (2002).19
A state court’s determination of factual issues is presumed
to be correct, and a federal court gives deference to such state
determinations unless “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);
see
also
28
U.S.C.
§
2254(e)(1) (“The applicant shall have the burden of rebutting
the
presumption
of
correctness
by
clear
and
convincing
evidence.”).
Federal habeas courts defer to state court determinations
of both questions of law and mixed questions of law and fact
under
28
U.S.C.
§
2254(d)(1),
unless
the
determination
“was
contrary to...clearly established Federal law...or...involved an
19
The AEDPA went into effect on April 24, 1996 and applies to
habeas petitions filed after that date. Flanagan v. Johnson, 154
F.3d 196, 198 (5th Cir. 1998).
7
unreasonable application of...clearly established Federal law.”
Williams v. Taylor, 529 U.S. 362, 412 (2000).
A decision is “contrary to” clearly established Federal law
if the state court’s conclusion is the opposite of that reached
by the Supreme Court of the United States on a question of law,
or
if
the
state
court
decides
a
case
differently
than
the
Supreme Court on a “set of materially indistinguishable facts.”
Hill
v.
Johnson,
210
F.3d
481,
485
(5th
Cir.
2000),
cert.
denied, 532 U.S. 1039 (2001) (quoting Williams v. Taylor, 529
U.S. 362, 412-13 (2000)).
The
“unreasonable
application”
standard
requires
the
federal habeas court to simply ask whether the state court’s
determination is objectively unreasonable. Neal v. Puckett, 286
F.3d 230, 246 (5th Cir. 2002), cert. denied, sub nom, Neal v.
Epps, 537 U.S. 1104 (2003).
Petitioners bear these burdens.
Price v. Vincent, 538 U.S. 634, 641 (2003)(quoting Woodford v.
Visciotti, 537 U.S. 19, 24-25 (2002));Wright v. Quarterman, 470
F.3d 581, 585 (5th Cir. 2006).
This Court reviews de novo the portions of a Magistrate
Judge’s Report and Recommendation to which a Petitioner objects.
Fed. R. Civ. P. 72(3).
II.
Analysis
Ineffective Assistance of Counsel as to Advice to Plead Guilty
in the Instant Case
8
Petitioner alleges he was denied his constitutional right
to
the
advised
effective
him
to
assistance
plead
of
guilty
to
counsel
the
when
charge
trial
of
counsel
aggravated
burglary. He contends this advice was manifestly erroneous due
to
trial
counsel’s
late
appointment
and
lack
of
independent
investigation into the case.
Petitioner’s right to counsel had attached, and his plea
hearing was a critical stage at which he was entitled to both
the presence and effective assistance of counsel. See U.S. v.
Wade, 388 U.S. 218, 229-31 (1967). A petitioner may raise an
ineffective assistance claim in the plea context, however, only
with regard to claiming it affected the voluntariness of his
plea. U.S. v. Cavitt, 550 F.2d 1226, 1229-30 (5th Cir. 1985).
The U.S. Supreme Court has propounded a two-pronged test
for
judging
ineffective
assistance
claims:
(1)
deficient
performance, and (2) prejudice. Strickland v. Washington, 466
U.S. 668, 688-692 (1984).
These prongs are mutually dependent:
if Petitioner fails to prove one, there is no need to review the
other. Id. at 691-2.20 This Court, however, will review both.
Under the deficient performance prong, the burden rests on
Petitioner
to
demonstrate
that,
under
the
circumstances,
counsel’s performance in rendering the advice to plead guilty
20
The Court explains that without a showing of prejudice, no 6th
Amendment violation has occurred.
9
fell below the range of competence demanded of other attorneys
in
criminal
cases.
See
Id.
at
688-9
(discussing
deficient
performance in trial context); Smith v. Estelle, 711 F.2d 677,
682 (5th Cir. 1983)(concerning guilty plea specifically).
Thus
Petitioner would have to demonstrate that a decision to reject
the
plea
bargain
would
have
been
rational
under
the
circumstances. Padilla v. Kentucky, 559 U.S. 356, 372 (2010).
Furthermore, the U.S. Supreme Court has interpreted §2254(d)’s
statutorily
imposed
deference
to
state
court
decisions
concerning mixed questions of law and fact to mean that the
deficient performance prong requires asking, “whether there is
any
reasonable
argument
that
counsel
satisfied
Strickland’s
deferential standard.” Harrington v. Richter, 131 S.Ct. 770, 788
(2011).
The
ineffective
assistance
inquiry,
in
the
§
2254
context, is thus doubly deferential in judging trial counsel’s
conduct.
Petitioner
was
a
repeat
offender
confronted
with
significant and compelling proof of his guilt: he was found at
the crime scene, and he had confessed his crime to the police.
(Magistrate Judge’s Report and Recommendation, pg. 16).
The
State offered him a fifteen year sentence for this aggravated
burglary, the minimum he could have received had he been found
guilty at trial. (Magistrate Judge’s Report and Recommendation,
10
pg.
16).21
Given
these
circumstances,
it
is
reasonable
to
conclude that Petitioner and trial counsel likely viewed this
plea deal as an attractive one. Thus, Petitioner has failed to
establish that his trial counsel’s performance in advising him
to plead guilty fell below the objective standard of competence
and thus rendered Petitioner’s plea involuntary.
Petitioner
also
argues
that
counsel’s
failure
to
“independently investigate” Petitioner’s case, by viewing the
weapons
and
crime
scene,
rendered
counsel’s
assistance
ineffective. He points to no objective evidence, however, to
support
this
claim
and
none
can
be
found
in
the
record.
(Magistrate Judge’s Report and Recommendation, pg. 16). To the
contrary, the police report and statement noted that Petitioner
was found inside the victim’s house with the guns in reach.
(Trial Court Record, Exhibits 28 and 29).
Petitioner insinuates
performance
also
stems
that his
from
trial counsel’s deficient
counsel’s
failure
to
investigate
Petitioner’s story of an unidentified male acquaintance who, as
Petitioner
alleged
in
his
police
statement,
held
him
at
gunpoint, told him to steal the guns, and then dropped him off
21
The punishment range for aggravated burglary, pursuant to La.
Rev. Stat. 14:60, is imprisonment ranging from one to thirty
years. As a second felony offender under La. Rev. Stat.
15:529(A)(1), however, Petitioner would have faced a minimum of
fifteen years and maximum of sixty years imprisonment.
11
at the crime scene and left. (Trial Court Record, Exhibits 28
and
29).
Even
if
this
theory
were
deemed
exculpatory,
Petitioner produces no objective evidence of this acquaintance’s
existence, nor does he articulate how proof of this unknown
third party’s influence would have changed his decision to plead
guilty.
Strickland Prejudice Prong
Instead
of
attempting
to
prove
the
Strickland
prejudice
prong, which would require Petitioner to demonstrate that he
would
not
have
pled
guilty
but
for
his
counsel’s
deficient
conduct, Petitioner relies on the Cronic prejudice presumption,
discussed in the next section. Id. at 691-2.
Had Petitioner
attempted to prove the Strickland prejudice prong, this Court is
left with the facts adduced in the record: Petitioner was a
repeat
offender,
he
was
caught
at
the
crime
scene,
he
had
admitted his guilt, and he was left only with an implausible
claim of duress from an unknown accomplice.
It is very unlikely
he would have chosen to risk further deprivation of his freedom
by proceeding to trial. Regardless, he adduces no evidence in
support of any contrary argument.
Ineffective Assistance Claim under Cronic Jurisprudence
The
Cronic
jurisprudence
envisions
situations
in
which
counsel is appointed so late or is otherwise so incompetent as
to have been essentially nonexistent. U.S. v. Cronic, 466 U.S.
12
648, 659-60 (1984). Thus under the Cronic “exception,” the Court
may
presume
prejudice
in
the
overall
Strickland
evaluation.
Cronic, 466 U.S. at 659-60.
The
Court
in
Cronic
discusses
various
factors
in
this
evaluation, but like Petitioner here, it focuses on preparation–
specifically the disparity between the preparation time allotted
to the State and that allowed the newly-appointed trial defense
counsel. Cronic, 466 U.S. at 663-4. In Cronic, the Court held
that defense counsel’s twenty-five days to prepare for a mail
fraud trial was adequate, although the state had been building
the case for far longer. Id.
In support of his Cronic argument, Petitioner relies on
trial
counsel’s
“omnibus
motions”–
one
of
which
was
a
generalized motion to compel discovery– filed on January 28,
2008
(the
date
of
the
plea
agreement),
to
suggest
that
Petitioner did not receive materials to which he was entitled
until acceptance of his plea.
The trial court record is clear,
however, that Petitioner was appointed counsel and that this
counsel “received discovery” on November 5, 2007, about three
months before Petitioner’s plea agreement.
The
same
appointed
trial
counsel
appeared
alongside
Petitioner on December 13, 2007. (Trial Court Record, Vol. 1).
Petitioner’s argument that the “State likely provided nothing
more than the police gist on the November 5, 2007 hearing date”
13
(Objection to Report and Recommendation, pg. 3), provides mere
speculation in the face of these trial court records.
Counsel’s appointment date, presence at court hearings, and
apparent
provide
availability
meaningful
demonstrate
he
did
not
testing
adversarial
that
fail
of
the
State’s
to
case
through any physical absence.
Petitioner is left with the argument that his counsel’s
conduct,
in
deficient
State’s
failing
as
to
case
agreement
remains
a
that
to
an
adversarial
statutory
unsubstantiated
evidence
investigate
amount
to
for
to
such
by
the
utter
failure
testing
minimum
the
crime
in
to
of
was
subject
accepting
sentence.
existence
“independent
scene,
This
any
a
so
the
plea
argument
exculpatory
investigation”
may
have
revealed. Petitioner has not demonstrated that he should receive
the benefit of the Cronic presumption.
Ineffective Assistance as to Multiple Offender Bill Guilty Plea
Petitioner next contends he was deprived of his right to
the
effective
assistance
of
counsel
due
to
trial
counsel’s
failure to object to the multiple offender bill as containing
the
wrong
name.
Recommendation,
barred
pursuant
(See
Petitioner’s
pg.
5).
This
to
La.
Code.
claim,
Crim.
Objection
however,
Proc.
to
is
Art.
Report
and
procedurally
930.3,
which
prohibits post-conviction review of sentencing errors, including
14
those committed during habitual offender proceedings. State v.
Cotton, 09-2397 (La. 10/15/10), 45 So.3d 1030 (per curiam).
Evaluating
the
application
of
this
procedural
bar
implicates two main considerations: 1) the state law support for
the
bar
at
the
state
level,
and
2)
whether
this
state
law
reasoning offers a state ground that is both “independent of the
merits
of
the
federal
claim
and
adequate
to
support
that
judgment.” Amos v. Scott, 61 F.3d 333, 338 (5th Cir. 1995).
Here, the cited statute satisfies these requirements. See, e.g.,
Hull v. Stalder, No. 99-31199, 2000 WL 1598016 (5th Cir. Sept
28, 2000); Johnson v. Cain, No. 12–0621, 2012 WL 5363327, at *4
(E.D.La. Oct 30, 2012) (Lemelle, J.).
The
state
law
ground
for
barring
review
of
habitual
offender adjudications rests on the Louisiana Supreme Court’s
reasoning
that
a
“habitual
offender
adjudication
does
not
pronounce a separate conviction or institute a separate criminal
proceeding, but instead ‘only addresses itself to the sentencing
powers of the trial judge after conviction and has no functional
relationship to innocence or guilt.’” Cotton, 45 So. 3d at 1030
(quoting State v. Walker, 416 So. 2d 534, 536 (La. 1982)).
The court of appeal and state district court agreed that
Petitioner’s claim was procedurally barred under this reasoning.
(Magistrate Judge’s Report and Recommendation, pg. 18).
The
Louisiana Supreme Court denied relief without stated reasons,
15
but
where
the
last
state
court
judgment
does
not
indicate
whether it is based on the merits or procedural default, it is
presumed that the court relied on the same grounds as those in
the last reasoned state court opinion. Ylst v. Nunnemaker, 501
U.S.
797,
802
(1991).
The
state
courts
properly
held
Petitioner’s multiple bill claim procedurally barred.
This Court next evaluates whether the state law procedural
bar
supports
state’s
a
bar
reasoning
in
is:
federal
1)
court
by
asking
independent
of
the
whether
merits
of
the
the
federal claim and 2) adequate to support the judgment. Amos, 61
F.3d at 338.
The test for adequacy of the rule is that it is strictly or
regularly followed by the cognizant state court, including those
state procedural grounds that are “strictly or regularly applied
evenhandedly to the vast majority of similar claims.” Id. at
339.
Codified in Louisiana’s criminal procedure and dutifully
followed
by
its
Supreme
Court,
Article
930.3
satisfies
the
adequacy test. See, e.g., Hull v. Stalder, No. 99-31199, 2000 WL
1598016 (5th Cir. Sept. 28, 2000); Johnson v. Cain, No. 12–0621,
2012 WL 5363327, at *4 (E.D.La. Oct. 30, 2012) (Lemelle, J.);
State v. Cotton, 09-2397 (La. 10/15/10), 45 So.3d 1030 (per
curiam).
We must next ask whether the state procedural ground is
independent of federal claims. Again, it is well established
16
that Article 930.3 is independent of federal claims so as to
support a procedural bar in federal court. See, e.g., Hull, 2000
WL 1598016; Johnson, 2012 WL 5363327 at *4.
Petitioner
has
an
opportunity
to
overcome
even
an
independent and adequate state law procedural bar if he can show
cause for the default and “prejudice attributed thereto,” or if
he can demonstrate that the federal court’s failure to review
the defaulted claim will result in a “fundamental miscarriage of
justice.” Amos, 61 F.3d at 339.
To
show
cause,
Petitioner
must
demonstrate
that
some
outside factor prevented his efforts to comply with a state
procedural rule. Murray v. Carrier, 477 U.S. 478, 488 (1986).
Petitioner
articulates
no
such
argument.
Report and Recommendation, pg. 20).
(Magistrate
Judge’s
Further, Article 930.3 does
not encompass situations where a Petitioner may, through some
external force, have been prevented from raising or preserving a
defense on appeal.
It merely establishes the rule that multiple
bill proceedings are not reviewable on appeal since they bear no
functional relationship to guilt or innocence.
Regardless,
Petitioner
has
not
shown
any
cause
for
the
default. Absent such a showing of cause, the Court need not
consider prejudice. Martin v. Maxey, 98 F. 3d 844, 849 (5th Cir.
1996).
17
This leaves the Court to consider whether Petitioner has
hurdled this procedural bar by establishing that a fundamental
miscarriage of justice will occur if the merits of his claim are
not reviewed. Hogue v. Johnson, 131 F. 3d 466, 497 (5th Cir.
1997) (citing Sawyer v. Whitley, 505 U.S. 333, 339 (1992)).
Petitioner must adduce evidence providing a “colorable showing
of factual innocence.” Kuhlmann v. Wilson, 477 U.S. 436, 454
(1986); accord Murray v. Carrier, 477 U.S. at 496; Glover v.
Hargett, 56 F.3d 682, 684(5th Cir. 1995); Glover v. Cain, 128 F.
3d 900, 904 (5th Cir. 1997).
Petitioner has not attempted this argument. He does not
claim that, had his counsel objected to the clerical error in
the entry of the multiple bill of information, he would have
been found innocent of these crimes. Indeed, he never claims he
was innocent of these crimes.22 Rather, Petitioner folds trial
counsel’s
multiple
bill
oversight
into
his
earlier
Cronic
argument, explaining, “the facts forming the basis of this claim
further support Petitioner’s contention that his trial attorney
did absolutely nothing to prepare for or investigate his case
22
Trial Court Record, Vol. 1: Petitioner’s guilty plea to the Multiple Bill
contains Petitioner’s name in the guilty plea to his present crime, but
contains the name “Arthur Lopez” as the defendant in the Multiple Bill’s
prior convictions: multiple counts of auto burglary under La. R.S. 14:62 in
case number 07-2389 in the 24th Judicial District Court of Jefferson Parish.
Trial Court Record, Vol. 1, however, also contains Petitioner’s May 25, 2007
(case number 07-2389 in the 24th Judicial District Court of Jefferson Parish)
plea colloquy in which he pled guilty to the auto burglaries that were the
prior offenses in his multiple bill guilty plea. Petitioner pled guilty to
these prior crimes, regardless of the clerical error contained in the
multiple bill.
18
and utterly failed to subject the prosecution’s case to any
semblance of adversarial testing.” (Petitioner’s Objection to
Report
and
approach
Recommendation,
the
“miscarriage
pg.
of
5).
This
justice”
argument
does
requirement,
not
and
the
record similarly fails to support such a showing of Petitioner’s
actual innocence on the underlying conviction.
Mr. Crochet has thus failed to overcome the procedural bar,
and this claim of ineffective assistance as to the entry of the
multiple bill must accordingly be dismissed.
Conclusion
The
Petitioner’s
right
counsel
was
not
undermined
leading
to
his
fifteen
to
at
year
the
any
plea
effective
stage
of
assistance
the
agreement
of
proceedings
to
aggravated
robbery. His argument that he received ineffective assistance in
making this agreement fails both prongs of the Strickland test:
deficient performance and prejudice. On the evidence before it,
this
Court
does
not
find
that
Petitioner’s
trial
counsel’s
performance fell below that of a reasonably competent criminal
defense attorney under the circumstances. The State offered the
minimum statutory sentence to a multiple-offender defendant who
was found at the crime scene and later admitted to his crime.
Fifteen years likely seemed an attractive deal.
Petitioner
fails
to
show
where
his
trial
counsel’s
allegedly deficient performance prejudiced the outcome of this
19
case. In the plea context, this would have meant demonstrating
that he would have rejected the plea deal in favor of going to
trial. Again, given the circumstances and evidence before him,
it seems unlikely that Petitioner would have made this decision.
Petitioner makes no argument on this prejudice prong, however,
choosing instead to rely on the Cronic prejudice presumption.
Petitioner fails to establish the Cronic presumption.
Cronic
jurisprudence
defendant’s
trial
rests
on
counsel’s
the
lack
idea
of
that
time
or
if
a
The
criminal
preparation
for
trial was so prejudicial as to render him essentially absent,
then the defendant is entitled to a presumption of prejudice.
Petitioner
adduces
no
evidence
to
establish
this
presumption. His trial counsel was appointed three months before
the
plea
was
entered,
and
this
is
also
when
he
received
discovery, according to the trial court’s record. Petitioner’s
vague references to the possibility of independent crime scene
investigation yielding exculpatory evidence are unsubstantiated
by any objective proof in the record.
Petitioner’s
meaning
of
trial
Cronic.
counsel
Petitioner
was
hardly
cannot
show
absent
within
counsel
failed
the
to
provide meaningful adversarial testing of the State’s case.
Finally,
assistance
of
Petitioner’s
counsel
in
claim
pleading
20
of
receiving
guilty
to
ineffective
the
multiple
offender bill is barred by an independent and adequate state law
procedure, and it therefore cannot be reviewed by this Court.
Accordingly,
the
Magistrate
Judge’s
Report
and
Recommendation is ADOPTED. The petition for issuance of a writ
of habeas corpus is DISMISSED WITH PREJUDICE.
New Orleans, Louisiana, this 8th day of October 2014.
____________________________
UNITED STATES DISTRICT JUDGE
21
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