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