Price v. Tanner et al
Filing
20
ORDER ADOPTING REPORT AND RECOMMENDATIONS 18 . Signed by Judge Ivan L.R. Lemelle.(ijg)
UNIED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
TIM PRICE
CIVIL ACTION
VERSUS
NO. 14-1628
ROBERT TANNER, WARDEN
SECTION B(5)
ORDER AND REASONS
Before the Court is the federal application for writ of
habeas corpus filed on July 10, 2014 by pro se petitioner Tim
Price pursuant to 28 U.S.C. § 2254.1 On October 24, 2014, in
answer to this petition, Robert Tanner (“Respondent”), a Warden
at
Rayburn
Correction
Center
where
Price
is
currently
incarcerated, filed an answer in opposition.2 That same day Price
filed
a
reply.3
The
matter
was
referred
to
United
States
Magistrate Judge Michael North. On June 16, 2015, Judge North
issued
a
Report
and
Recommendation
(“R&R”)
recommending
the
petition be dismissed with prejudice.4 On June 25, 2015, Price
filed timely objections to the Magistrate Judge’s R&R.5
For the reasons explained below, IT IS ORDERED that the
Magistrate Judge’s R&R (Rec. Doc. 18) is ADOPTED over Price’s
objections, and the instant habeas corpus petition is DISMISSED
1
(Rec. Doc. 1).
2
(Rec. Doc. 15).
3
(Rec. Doc. 17).
4
(Rec. Doc. 18).
5
(Rec. Doc. 19).
WITH PREJUDICE.
FACTUAL BACKGROUND
Price
is
a
state
prisoner,
incarcerated
in
Rayburn
Correctional Center, in Angie, Louisiana. On October 24, 2006,
he was charged with possession of cocaine in excess of 28 grams
but
less
than
§ 40:967(F).
following
a
200
Price,
jury
in
grams,
a
fourth
trial
violation
felony
and
was
of
La.
offender,
Rev.
Stat.
was
to
sentenced
convicted
35
years
imprisonment at hard labor.
In October of 2006, Detectives Shane Klein and Eric Dufrene
participated in an investigation that led to defendant’s arrest.
A confidential informant6 told Detective Klein that defendant was
selling crack cocaine. On October 6, 2006, the officers set up
surveillance
exchanges
and
with
observed
the
defendant
confidential
engage
informant
in
hand-to-hand
and
one
other
individual from a parked vehicle.7 On inspection of the vehicle,
Detective Dufrene found a large plastic bag of off-white rocks
that looked like crack cocaine in the middle of the back seat in
plain view.8 Kirby Sovinette, the owner of the vehicle, sat next
to
the
contraband,
Detective
Klein
and
arrived
defendant
and
was
conducted
in
a
the
driver’s
field
test
6
As agreed upon by counsel, no mention was made at trial regarding the confidential informant.
7
State v. Price, 66 So. 3d 495 (La. App. 5th Cir. 2011) writ denied, 76 So. 3d 1153 (La. 2011).
8
Id.
9
Id.
2
seat.9
on
the
substance which proved positive for cocaine.10 Both individuals
were then advised of their Miranda rights, placed under arrest,
and transported to the detective bureau.11 Detective Klein spoke
to defendant at the detective bureau, and defendant verbally
admitted that the cocaine in the truck was his.12 At the time of
booking,
defendant
was
in
possession
of
$402.00
in
various
denominations.13
Prior to trial, defense counsel filed a motion to continue14
because
he
was
appointed
to
participate
in
traffic
court
proceedings for March 2007, and co-counsel would be out of the
area. On March 19, 2007, the trial court denied the motion,
noting
that
the
court
would
work
with
defense
counsel
to
accommodate this obligation.15
On
March
12,
2009,
Price
submitted
a
motion
for
post–
conviction relief.16 In his application, he alleged his former
trial
counsel
rendered
ineffective
assistance.
On
March
19,
2009, the district court denied post‐conviction relief.17 Price
sought a rehearing on the motions and moved for a new trial. On
10
Id. at 499-500.
11
Id.
12
Id.
13
Id. at 503.
14
(State Rec. 1 of 5 at 40).
15
Price, 66 So. 3d at 501.
16
State Rec. Vol. 1 of 5, Motion for post-conviction relief and/or motion for new trial.
17
Id., State district court order signed March 19, 2009.
3
August 21, 2009, the district court held a hearing and denied
his motion for new trial. On August 27, 2009, the district court
also denied Price's request for a rehearing and rejected his
claim of ineffective assistance of counsel on the merits. Price
moved for an out‐of‐time appeal, which was subsequently granted.18
On
Appeal
Supreme
May
10,
affirmed
Court
2011,
his
denied
the
Louisiana
conviction
his
and
subsequent
Fifth
Circuit
sentence.
writ
The
Court
of
Louisiana
application
without
stated reasons and Price did not seek review to the United States
Supreme Court.
On October 18, 2012, Price filed a pro se application for
post‐conviction relief in the state district court, asserting
that he was denied effective assistance of counsel during the
motion to suppress hearing, at trial, and the habitual offender
proceedings. On May 24, 2013, the state district court denied
post‐conviction relief with stated reasons.19 On September 23,
2013, the Louisiana Fifth Circuit Court of Appeal denied his
writ application for supervisory relief.20 On May 23, 2014, the
18
th
State Rec. Vol. 1 of 5, State v. Price, No. 09-KH-892 (La. App. 5 Cir. Dec. 1, 2009) (unpublished writ ruling).
19
State Rec. Vol. 3 of 5, State district court order denying post‐conviction relief signed May 24, 2013. By previous
order issued December 10, 2012, the district court denied his claim of ineffective assistance of counsel during
sentencing as procedurally barred and instructed the State to respond to the merits of the other two claims. The
May 24, 2013 order addressed the remaining two ineffective assistance of counsel claims and included detailed
reasons, but failed to include a dispositive ruling regarding whether those claims were "denied." The oversight was
remedied by supplemental order issued on August 5, 2013, in response to the Louisiana Fifth Circuit's order that
the district court state its dispositive ruling denying post-conviction relief on claims one and two for the record.
20
State v. Price, 76 So. 3d 1153 (La. 2011); State Rec. Vol. 3 of 5.
4
Louisiana
Supreme
Court
denied
his
related
writ
application
without additional stated reasons.
On July 10, 2014, Price filed the instant petition alleging
five
claims.
First,
he
received
ineffective
assistance
of
counsel during the motion to suppress hearing. Second, the trial
court’s
denial
of
his
motion
to
continue
violated
his
constitutional rights. Third, he received ineffective assistance
of counsel at trial. Fourth, there was insufficient evidence to
support
his
conviction.
Finally,
he
received
ineffective
assistance of counsel during sentencing.
On
October
opposition
state
24,
conceding
court
2014,
Price’s
remedies
on
Respondent
timely
the
issues
filed
filing
a
and
raised.
response
in
exhaustion
of
(Rec.
Doc.
15).
Respondent argues that claim five, Price’s claim of ineffective
assistance
default,
of
and
counsel
during
alternatively,
sentencing,
is
without
is
merit.
in
procedural
Additionally,
claims one through four are without merit.
Price filed a reply on October 24, 2014. (Rec. Doc. 17).
The
matter
was
referred
to
United
States
Magistrate
Judge
Michael North who issued a R&R on June 16, 2015, wherein he
recommended the petition be dismissed with prejudice. (Rec. Doc.
18). On June 25, 2015, Price filed timely objections to the
5
Magistrate Judge’s R&R.21
LAW AND ANALYSIS
I.
Standard of Review
This
Court
reviews
objections
to
a
magistrate
judge’s
report and recommendation de novo. Fed. R. Civ. P. 72(b)(3).
Price has objected to claims one through five (Rec. Doc. 19),
and accordingly,
the respective portions of the R&R for the
instant case are reviewed de novo, and the remaining portions
for clear error. 28 U.S.C. ' 636 (b)(1). Price filed this § 2254
action
after
the
Anti-Terrorism
and
Effective
Death
Penalty
Act’s (AEDPA) April 24, 1996 effective date, and this claim is
therefore governed by that statute. Woodford v. Garceau, 538
U.S. 202, 205 (2003).
A. Standard of Review: Procedural Default
A claim may not be reviewed by a federal court if the last
state court to consider that claim expressly relied on a state
ground for denial of relief that is both independent of the
merits
of
the
federal
claim
and
an
adequate
basis
for
the
court's decision. Finley v. Johnson, 243 F.3d 215, 218 (5th Cir.
2001) (citations omitted). Where a lower court has rejected a
claim
on
procedural
grounds,
later
opinions
upholding
that
decision are presumed to rely on the same grounds if reasons are
21
(Rec. Doc. 19).
6
not assigned. Id.
B. Standard of Review: Merits
28 U.S.C. §§ 2254 (d)(1) and (2) contain revised standards
of review for questions of fact, questions of law, and mixed
questions of fact and law in federal habeas corpus proceedings.
Nobles v. Johnson, 127 F.3d 409, 419–20 (5th Cir. 1997).
Determinations of questions of fact by the state court are
presumed to be correct and given deference unless the decision
was “based on an unreasonable determination of the facts in
light of the evidence presented in the State court proceeding.”
Hill
v.
Johnson,
petitioner
must
210
F.3d
present
481,
“clear
485
and
(5th
Cir.
convincing
2000).
evidence”
The
to
overcome the presumption. 28 U.S.C. § 2254(e)(1).
A state court's determination of questions of law and mixed
questions of law and fact receive deference, unless the decision
was
contrary
to,
or
involved
an
objectively
unreasonable
application of Supreme Court precedent. See Penry v. Johnson,
215 F.3d 504, 507 (5th Cir. 2000), aff'd in part, rev'd in part
on other grounds, 532 U.S. 782 (2001); Hill, 210 F.3d at 485;
Neal v. Puckett, 286 F.3d 230, 246 (5th Cir. 2002). The burden
is on the petitioner to show that the state court applied the
precedent
to
the
facts
of
his
case
in
an
objectively
unreasonable manner. Price v. Vincent, 538 U.S. 634, 641 (2003);
Wright v. Quarterman, 470 F.3d 581, 585 (5th Cir. 2006).
7
II.
Analysis
Price’s
claims
have
been
reorganized,
but
the
numbering
assigned to them remains consistent with the numbering used in
the petition.
The reorganization
facilitates
consideration of
Price’s ineffective assistance of counsel claims together.
A. Claim
Five—Ineffective
Sentencing
Price
alleges
that
Assistance
defense
counsel
of
rendered
Counsel
at
ineffective
assistance at the multiple offender proceeding when failing to
object to the State’s use of certain documentation to establish
Price’s prior felony status. Furthermore, Price argues, barring
him from bringing an ineffective assistance of counsel claim via
a
post-conviction
relief
proceeding
wholly
denies
him
the
opportunity to raise this claim because the requirement that he
raise the issue on direct appeal denies him an opportunity to
receive an evidentiary hearing to establish the claim’s merit.
In
other
words,
a
petitioner
must
bring
ineffective
assistance claims on direct appeal where such claims are often
denied because the record does not contain sufficient evidence
to support the claim. These claims are much more appropriate for
post-conviction relief proceedings, where an evidentiary hearing
can be made and the issue can be determined on its merits.
However, current law does not allow these claims to be raised at
post-conviction
relief
proceedings
8
and,
consequently,
a
petitioner is denied the opportunity to raise this claim and
have
it
adjudicated
on
the
merits
in
light
of
any
evidence
produced at an evidentiary hearing. Price argues, the existing
caselaw should therefore be overruled and his claim resolved on
the merits.
However, the
Court concludes
that this claim
is
procedurally barred and must be dismissed with prejudice.
The federal courts have repeatedly held that La. Code Crim.
Proc. art. 930.3 and related state case law, such as State ex
rel. Melinie v. State, 665 So. 2d 1172, 1172 (La. 1996), and
State v. Cotton, 45 So. 3d 1030, 1030 (La. 2010), are both
independent and adequate state law grounds for dismissal which
bar
review
of
similar
claims
in
a
federal
habeas
corpus
proceeding.22 A federal habeas petitioner may be excepted from
the
procedural
default
rule
if
he
can
show
“cause”
for
his
default and “prejudice attributed thereto.” Glover v. Cain, 128
F.3d 900, 902 (5th Cir. 1995); see also Amos v. Scott, 61 F.3d
333, 338–39 (5th Cir. 1995); Engle v. Isaac, 456 U.S. 107, 128–
29
and
n.33
(1982).
To
establish
cause,
a
petitioner
must
demonstrate that some objective factor external to the defense
impeded his efforts to comply with the state's procedural rule.
22
Hull v. Stalder, 234 F.3d 706, 2000 WL 1598016, at *1 (5th Cir. Sep. 28, 2000) (Table, Text in Westlaw); Zantiz v.
Louisiana, No. 12–2908, 2014 WL 775577, at *7 (E.D. La. Feb. 25, 2014) (order adopting report); Johnson v. Cain,
No. 12–0621, 2012 WL 5363327, at *4 (E.D. La. Oct. 30, 2012); Evans v. Cain, No. 112584, 2012 WL 2565008, at *6–
*7 (E.D. La. Mar. 14, 2012), adopted by 2012 WL 2565001, at *1 (E.D. La. Jul. 2, 2012); Taylor v. Cain, No. 07–3929,
2008 WL 4186883, at * 16 (E.D. La. Sep. 10, 2008) (order adopting report); Williams v. Cain, No. 05–0710, 2008 WL
3363562, at *8 (E.D. La. Aug. 8, 2008) (order adopting report); Strain, 2014 WL 5305634, at *4-6.
9
Murray v. Carrier, 477 U.S. 478, 488 (1986). The mere fact that
Price or his counsel failed to recognize the factual or legal
basis
for
a
recognizing
claim,
it,
does
or
failed
not
to
raise
constitute
cause
the
for
claim
a
despite
procedural
default. Id. at 486.
Here, Price does not allege, nor does the record support a
finding that any external factor impeded his ability to comply
with the state’s procedural rule. Price’s failure to raise this
claim on direct appeal is not explained in any of his pleadings
to this Court. Instead, Price presumes that a determination of
procedural default will have a particular outcome, and he relies
on that outcome to explain why such a bar should not be applied.
In
doing
so,
it
seems
that
Price
argues
that
Louisiana
law
prevented him from complying with the state procedural rule.
Louisiana law, however, did not bar Price from raising on
direct appeal his claims of ineffective assistance of counsel
during the habitual offender proceeding. In fact, the opposite
is true; Louisiana law required that he assert his claims on
direct appeal or be faced with a bar to its review if raised in
a
post-conviction
application.
State
v.
Nelson,
No.
2010–KA–
1445, 2011 WL 9165413, at *1 (La. App. 4th Cir. Apr. 27, 2011)
(citing State ex rel. Melinie, 665 So. 2d at 1172) (stating that
a claim of ineffective assistance of counsel at sentencing is
considered on direct appeal because it is not available on post-
10
conviction review). La. Code Crim. Proc. art. 930.3 and related
Louisiana
case
law
prohibits
post-conviction
review
of
challenges to sentencing errors, including those raising claims
of ineffective assistance of counsel during sentencing, and that
prohibition has been extended to multiple offender proceedings.
State v. Thomas, 19 So. 3d 466, 466 (La. 2009).23
In
Cotton,
the
Louisiana
Supreme
Court
explained
that,
under Louisiana law, “an habitual offender adjudication . . .
constitutes sentencing for purposes of Melinie and La. [Code
Crim. Proc.] art. 930.3, which provides no vehicle for postconviction
offender
consideration
proceedings,
of
as
claims
opposed
arising
to
out
direct
of
habitual
appeal
of
the
conviction and sentence.” Cotton, 45 So. 3d at 1030. The court
reiterated that Louisiana law prohibits post-conviction review
of
habitual
offender
proceedings,
including
claims
of
ineffective assistance of counsel related to that proceeding.
Id.
at
1030–31.
The
court
specifically
indicated
that
such
claims are appropriately considered on direct appeal, citing La.
Code Crim. Proc. art. 912
(C)(1),
which provides for direct
appeal of the judgment that imposes sentence. Id.
Thus,
under
Louisiana
law,
23
direct
appeal
was
Price’s
See also State v. Dauzart, 89 So. 3d 1214, 1222 (La. App. 4th Cir. 2012) (finding alleged ineffective assistance of
counsel “must be addressed on appeal because sentencing errors are not reviewable post-conviction”); Cotton, 45
So. 3d at 1030 (finding same as to ineffective assistance of counsel during multiple offender proceedings); Wallace
v. Cain, No. 06-11271, 2009 WL 3367052, at *14 (E.D. La. Oct. 15, 2009)(same).
11
initial
opportunity
to
raise
his
claims
of
ineffective
assistance of counsel at the multiple bill proceeding.24 There
was no state law prohibiting Price from raising his sentencingrelated ineffective assistance of counsel claim on direct appeal
where
he
was
represented
by
counsel;
and,
had
he
done
so,
consideration of the claim on federal habeas review would not
have been barred. See, e.g., State v. Dudley, No. 2012–0640,
2012 WL 5383089, at *3–*4 (La. App. 1st Cir. Nov. 2, 2012)
(addressing
on
ineffective
assistance
challenge
direct
validity
of
appeal
of
the
counsel
prior
merits
for
conviction
of
counsel's
at
a
claim
of
failure
to
habitual
offender
adjudication). Thus, contrary to Price’s assertions, Louisiana
law did not bar and indeed required Price to raise the claim on
direct appeal, which he did not do.
To the extent that Price argues that the application of
this law deprives him of the opportunity to have an evidentiary
hearing on which to base any argument on direct appeal, such
predicaments have been previously noted. In State v. Martin, No.
14-671, 2014 WL 7338515, (La. App. 5th Cir. Dec. 23, 2014), the
defendant
claimed
ineffective
assistance
24
of
counsel
on
post-
See Cotton v. Cooper, No. 11–0231, 2011 WL 5025311, at * 11 (E.D. La. Sept. 14, 2011) (“Sentencing issues,
including claims of ineffective assistance of counsel during sentencing, may be challenged in [Louisiana] state court
via direct appeal.”), report adopted, 2011 WL 5025295, at *1 (E.D. La. Oct. 21, 2011); Nelson, 2011 WL 9165413, at
*1 (stating a claim of ineffective assistance of counsel at sentencing is to be considered on direct appeal because it
is not available on post-conviction review); State v. Smith, 734 So. 2d 826, 834–35 (La. App. 4th Cir. 1997)
(addressing on direct appeal defendant's claim of sentencing-related ineffective assistance of counsel); State v.
Burns, 723 So. 2d 1013, 1016–17 (La. App. 4th Cir. 1998) (same).
12
conviction relief application, but the court found that he had
not exhausted the issue by raising it on direct appeal. Id. at
*4. The defendant then filed a direct appeal raising the issue,
and
the
appellate
sufficient
to
court
determined
the
determine
that
and
issue
the
the
record
claim
was
should
not
be
considered through post-conviction relief proceedings, where an
evidentiary hearing could be held. Id. The concurring opinion
noted
the
confusing
“procedural
instructions
conundrum”
that
the
and
“contradictory
criminal
and
justice
has
system
given [applicants] in pursuing review of [their] conviction and
sentence.” Id.
Here too, any procedural predicament Price may face as a
result
of
contrary
the
to
state’s
Price’s
procedural
argument,
rules
such
a
is
noted.
However,
predicament
does
not
deprive him of the opportunity to receive an evidentiary hearing
on the issue, because, regardless of how labyrinthine the proper
procedural steps may have been, they were still available and
comported
with
the
requirement
that
the
applied
law
be
independent and adequate.
The Court's review of the record does not support a finding
that
any
factor
external
to
the
defense,
or
any
action
or
inaction on the part of the State, which prevented Price from
raising the claim in a procedurally proper manner. “The failure
to show ‘cause’ is fatal to the invocation of the ‘cause and
13
prejudice’ exception, without regard to whether ‘prejudice’ is
shown.” Hogue v. Johnson, 131 F.3d 466, 497 (5th Cir. 1997)
(citing Engle, 456 U.S. at 134 n.43).
Thus,
because
La.
Code
Crim.
Proc.
art.
930.3
is
both
independent and adequate state law grounds for dismissal which
bar
review
of
proceeding,
similar
and
because
claims
in
Price
has
a
federal
failed
to
habeas
corpus
establish
an
exception, Price's claim is procedurally barred from review by
this federal habeas corpus Court.
B. Claim One—Ineffective Assistance of Counsel at Motion to
Suppress Hearing
Price claims he received ineffective assistance of counsel
at
the
motion
to
suppress
hearing.
To
establish
a
claim
of
ineffective assistance of counsel, the petitioner is required to
prove
(1)
standard
counsel's
of
representation
reasonableness
and
(2)
fell
below
there
is
an
a
objective
reasonable
probability that, but for counsel's unprofessional errors, the
result of the proceeding would have been different. Strickland
v. Washington, 466 U.S. 668, 687-88, 694. This Court may dispose
of such a claim based solely on a petitioner's failure to meet
either prong of the test. United States v. Kimler, 167 F.3d 889,
893 (5th Cir. 1999). Scrutiny of counsel's performance under
Section 2254(d) is “doubly deferential.” Cullen v. Pinholster,
131 S.Ct. 1388, 1403 (2011). This Court must therefore apply the
14
“strong presumption” that counsel's strategy and defense tactics
fall
“within
the
wide
range
of
reasonable
professional
assistance.” Strickland, 466 U.S. at 690; Moore v. Johnson, 194
F.3d 586, 591 (5th Cir. 1999). Federal habeas courts presume
that
trial
strategy
is
objectively
reasonable
unless
clearly
proven otherwise by the petitioner. Strickland, 466 U.S. at 689;
Moore, 194 F.3d at 591. Thus, the question before this Court is
whether the state courts' denial of relief was contrary to or an
unreasonable
application
of
United
States
Supreme
Court
precedent set forth above. Williams v. Vannoy, No. CIV.A. 141914, 2015 WL 3505116, at *14-15 (E.D. La. June 3, 2015).
Price
counsel
claims
(a)
that
failed
at
to
the
motion
conduct
an
to
suppress
adequate
hearing,
preliminary
investigation. This resulted in the additional failure to (b)
argue the voluntariness of the purported oral statement; (c)
impugn the credibility of the testifying officers; (d) challenge
the validity of the probable cause affidavit; (e) contest the
reliability
of
the
state’s
evidence
with
respect
to
the
confidential informant; and (f) allow Price to take the stand.
Price argues that if counsel had been properly prepared, he
would have questioned Detective Klein’s credibility, and even
exposed Detective Klein’s perjured testimony.
The
state
district
court
considered
Price's
ineffective
assistance of counsel claims on the merits, and on May 24, 2014,
15
rejected the claims. The court reasoned that counsel’s attempt
to
challenge
participation
effective
the
in
voluntariness
a
motion
assistance.
to
of
Price’s
suppress
Furthermore,
statement,
sufficiently
Price
was
not
rendered
prejudiced
because Detective Klein’s testimony was cumulative in effect and
there were no exceptional circumstances that warrant disclosure
of
the
identity
of
the
confidential
informant.
The
Court
concludes that the state district court did not unreasonably
apply the standard set forth in Strickland. The R&R accurately
and thoroughly discusses each of Price’s arguments and correctly
concludes that
counsel’s
reasonable
Price has not shown clear proof that defense
performance
fell
professional
outside
assistance,
of
the
or
wide
that
range
he
of
suffered
prejudice. (Rec. Doc. 18 at 25-35).
To the extent that Price argues that the cumulative effect
of
the
errors
of
counsel
when
combined
created
cumulative
prejudice, Price has failed to identify any constitutional error
in
defense
counsel's
performance,
leaving
no
basis
for
any
alleged cumulative prejudicial effect of any error.
When the individual contentions of ineffective assistance
are meritless, that result cannot be changed simply by asserting
the same claims collectively. Turner v. Quarterman, 481 F.3d
292, 301 (5th Cir. 2007). “[I]neffective assistance of counsel
cannot be created from the accumulation of acceptable decisions
16
and actions.” United States v. Hall, 455 F.3d 508, 520 (5th Cir.
2006); see also Mullen v. Blackburn, 808 F.2d 1143, 1147 (5th
Cir. 1987) ([W]ith respect to cumulation of meritless claims,
“Twenty times zero equals zero.”).
Price’s allegations
of
ineffective assistance of counsel
fail individually, and are not any more persuasive when alleged
collectively. For these reasons, he is not entitled to relief on
this claim.
C. Claim Three—Ineffective Assistance of Counsel at Trial
Price claims that at trial counsel failed to object to
testimony
of
two
witnesses,
Detective
Klein
and
Captain
Halstead. Price fails to carry his burden under Strickland and
these claims should accordingly be dismissed.
1. Failure to Object to the Testimony of Detective Klein as
Hearsay
Price contends defense counsel was ineffective in failing
to object when Detective Klein testified that he was not present
when the vehicle was detained and Detective Dufrene retrieved
the contraband from inside the vehicle.25 He argues this was
inadmissible hearsay. Price argues that such an objection to
this testimony would have bolstered the theory that Detective
Klein’s
testimony
Klein’s
testimony
25
was
not
about
reliable
Price’s
naturally,
admission
State Rec. Vol. 1 of 5, Trial transcript (March 23, 2007), at 36‐38.
17
and,
would
Detective
have
been
suspect.
Even
assuming
his
testimony
could
be
characterized
as
hearsay, the state court recognized that Detective Dufrene had
already testified that he stopped the vehicle, retrieved the
contraband,
and
turned
it
over
to
Detective
Klein
when
he
arrived on the scene.26
Moreover, the Court is unpersuaded by Price’s attempt to
show prejudice by arguing that an objection to the statement as
hearsay could have been used to establish a pattern of police
misconduct
and
thereby
Klein
regarding
seems
to
rest
knowledge
of
discredit
Price’s
on
a
alleged
faulty
evidentiary
the
confession.
premise
rules
testimony
in
that
some
of
Detective
Price’s
argument
Detective
Klein’s
way
implicates
his
credibility as a witness. Additionally, because the objected to
portion
of
Detective
testimony
Dufrene,
was
whom
corroborated
Price
had
an
by
the
testimony
opportunity
to
of
cross-
examine, it is unlikely that any such objection would have had a
deleterious effect on Detective Klein’s credibility. Therefore,
Price cannot show a reasonable likelihood that an objection to
Detective Klein's testimony as hearsay would have changed the
result of the proceeding, and thus he fails to carry his burden
under Strickland.
2. Failure to Object to the Testimony of Captain Halstead as
26
Id. at 25‐27.
18
Evidence of Other Crimes
Price also claims that counsel was ineffective in failing
to
object
or
request
a
limiting
instruction
when
Captain
Halstead testified that at the time of booking Price was in
possession
improper
of
$402.00
reference
in
to
cash.
Price
"other
contends
crimes"
this
evidence,
was
an
i.e.,
distribution of contraband with which he was not charged.
However, Price has not shown any actual prejudice. Although
he argues that this testimony implies that he was involved with
the distribution of cocaine, it is not conclusive proof of other
crimes.
Furthermore,
on
cross-examination,
Captain
Halstead
testified that it was not uncommon for other individuals to
possess a similar amount of money when booked.27 Therefore, Price
does
not
rendered
establish
the
trial
that
his
attorney's
proceedings
unreliable
failure
and
to
object
fundamentally
unfair. Accordingly, the state courts' rejection of this claim
was reasonable and Price’s claim should be rejected here also.
D. Claim Two—District Court’s Denial of Motion to Continue
Price claims that the district court erred in denying his
motion
to
continue
and
constructively
denied
him
effective
assistance of counsel. He argues that defense counsel’s other
legal obligations negated his ability to effectively prepare for
Price’s trial, scheduled only four days after the hearing on the
27
State Rec. Vol. 1 of 5 at 230.
19
motion to suppress. Price, in support of this argument, points
to defense counsel’s statement during the trial court’s hearing
on the motion, that a denial of the motion would “hurt” Price’s
defense. This claim is without merit and should be dismissed.
To
the
extent
that
Price
argues
that
the
trial
court
committed an error in denying the motion to continue, to warrant
federal habeas relief, Price must show that the trial court's
denial of a continuance was “not only an abuse of discretion but
also so arbitrary and fundamentally unfair” that it denied him
due
process,
i.e.,
it
rendered
Price’s
trial
fundamentally
unfair. McFadden v. Cabana, 851 F.2d 784, 788 (5th Cir. 1988);
see Hicks v. Wainwright, 633 F.2d 1146, 1148 (5th Cir. 1981).
Hence, he has to establish “a reasonable probability that the
granting of a continuance would have permitted him to adduce
evidence that would have altered the verdict.” McFadden, 851
F.2d at 788 (quoting Kirkpatrick v. Blackburn, 777 F.2d 272, 280
(5th Cir. 1985)).
Price has failed to demonstrate that he is entitled to any
relief on his claim. Even if this Court were to determine that
the trial court abused its discretion in denying Price's motion
to continue, Price fails to demonstrate a reasonable probability
that an impeachment of Detective Klein’s testimony regarding the
involvement of a confidential informant—testimony which was not
made available to the jury during trial—would have altered the
20
verdict. Furthermore, Detective Dufrene testified to witnessing
an
exchange
between
Price
and
an
unknown
male,
as
well
as
finding a clear plastic bag in plain view directly in the center
of
the
Price,
back
with
suspicion
cocaine
seat
within
later
that
the
weighing
approximately
testing
confirming
substance
47.43
two
in
grams.
or
three
Detective
the
bag
was
in
These
lab
feet
of
Defrene’s
fact
results
were
crack
made
available to the jury at trial as well. Thus, Price has not
demonstrated a reasonable probability that a different outcome
would have resulted at trial notwithstanding Detective Klein’s
testimony in light of the other evidence considered by the jury
at trial.
Therefore, his claim that the trial court erred in denying
his motion to continue does not entitle him to habeas relief.
Hernandez v. Day, 26 F.3d 1118 (5th Cir. 1994).
Price
continue
further
resulted
assistance
of
asserts that the denial of his motion to
in
counsel.
a
The
constructive
Court
is
denial
not
of
persuaded
effective
by
this
argument.
Constructive denial of effective assistance of counsel is a
narrow exception to Strickland, where a petitioner need not show
prejudice if counsel entirely fails to subject the prosecution's
case to meaningful adversarial testing. See United States v.
Cronic,
466
U.S.
648,
659
(1984)
21
(emphasis
added)
(citation
omitted). The Fifth Circuit has concluded that a constructive
denial of counsel occurs “only in a very narrow spectrum of
cases
where
the
circumstances
leading
to
counsel's
ineffectiveness are so egregious that the defendant is in effect
denied any meaningful assistance at all.” Craker v. McCotter,
805 F.2d 538, 542 (5th Cir. 1986).
The instant case does not fall within that narrow spectrum
of
cases
indicates
described
that
in
counsel,
United
with
States
five
v.
months
Cronic.
The
leading
up
record
to
the
scheduled trial date, prepared and became familiar with the case
by engaging in discovery, filing pretrial motions and arguing
ably for the suppression of statements and evidence. Thus, Price
has not shown that trial counsel's active representation was so
deficient as to fail to subject the State's case to meaningful
adversarial testing and thus to amount constructively to “no
representation at all.” See Fink v. Lockhart, 823 F.2d 204, 206
(8th Cir. 1987) (determining that counsel's failure inter alia
to interview witnesses prior to trial, to conduct voir dire, or
to make an opening statement was not presumptively prejudicial
under
Cronic
because
counsel
cross-examined
the
State's
witnesses and made a closing argument); cf. Martin v. Rose, 774
F.2d 1245, 1250-51 (6th Cir. 1984) (presuming prejudice under
Cronic when counsel failed to participate in any aspect of the
petitioner's trial). Hence, trial counsel's performance does not
22
justify a presumption of prejudice, and any failure of counsel
to
investigate
witnesses
and
avenues
of
defense
is
best
characterized as a failure to perform his investigatory duties,
which must be analyzed under the two-pronged test enunciated in
Strickland. See Woodard v. Collins, 898 F.2d 1027, 1029 (5th
Cir. 1990).
When analyzed under Strickland, Price’s claim fails because
he has not satisfied Strickland's prejudice prong, i.e., he has
not
demonstrated
a
reasonable
probability
that
the
trial's
result would have been different. See Motley v. Collins, 18 F.3d
1223, 1226 (5th Cir. 1994). As previously discussed, Price has
not
demonstrated
a
reasonable
probability
that
a
different
outcome would have resulted at trial notwithstanding Detective
Klein’s testimony in light of the other evidence considered by
the jury at trial.
Therefore,
denial
of
his
Price
has
motion
to
not
shown
continue
that
was
in
the
trial
error,
court’s
nor
has
he
sustained his burden to show ineffective assistance of counsel,
either
constructive
or
otherwise.
Accordingly,
this
claim
is
supported
by
without merit and should be dismissed with prejudice.
E. Claim Four—Sufficiency of the Evidence
Price
sufficient
elements
of
claims
that
evidence
quantity
his
because
and
conviction
the
state
possession.
23
was
not
failed
Price
to
argues
prove
the
that
the
state’s
failure
reasonable
doubt
to
perform
because
the
a
quantization
actual
amount
of
test
pure
creates
cocaine
present could have been below 28 grams.28 Furthermore, he argues,
the state failed to prove possession because it did not exclude
the reasonable hypothesis that the contraband belonged to Kirby
Sovinette, especially in light of Detective Klein’s impeachable
testimony of Price’s admission of ownership of the contraband.
This
claim
is
without
merit
and
should
be
dismissed.
Louisiana law allows for a crime to be proven by both direct and
circumstantial evidence. La. Rev. Stat. § 15:438; Vannoy, 2015
WL 3505116, at *12. “The rule as to circumstantial evidence is:
assuming every fact to be proved that the evidence tends to
prove, in order to convict, it must exclude every reasonable
hypothesis of innocence.” La. Rev. Stat. § 15:438. However, on
federal habeas corpus review, the court does not apply this
state
law
“reasonable
hypothesis”
standard,
and
instead
must
apply Jackson. See Gilley v. Collins, 968 F.2d 465, 467 (5th
Cir. 1992). Under Jackson v. Virginia, 443 U.S. 307 (1979), a
federal habeas court addressing an insufficiency of the evidence
claim 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
28
Angelica testified that the state is able to determine the exact amount of cocaine present by percentage
through a technique called quantization, which is done upon request, though not performed in this case.
24
were proven beyond a reasonable doubt. Jackson, 443 U.S. at 319;
Williams v. Cain, 408 F. App'x 817, 821 (5th Cir. 2011); Perez
v.
Cain,
529
F.3d
588,
594
(5th
Cir.
2008).
Review
of
the
sufficiency of the evidence, however, does not include review of
the weight of the evidence or the credibility of the witnesses,
because those determinations are the exclusive province of the
jury. United States v. Young, 107 F. App'x 442, 443 (5th Cir.
2004). Moreover, because the state court's decision applying the
already deferential Jackson standard must be assessed here under
the strict and narrow standards of review mandated by the AEDPA,
the standard to be applied by this Court is in fact “twice‐
deferential.” Parker v. Matthews, 132 S.Ct. 2148, 2152 (2012).
Price’s theory that the state failed to carry its burden by
performing
a
quantization
test
fails
because
under
Louisiana
Revised Statute 40:967(F), a defendant's punishment depends on
the weight of a substance containing a
cocaine—not
the
amount
of
pure
detectable amount
cocaine.
La.
Rev.
Stat.
of
§
40:967(F); State v. Temple, 572 So.2d 662 (La. App. 5th Cir.
1990).
The
jury
in
this
case
heard
Angelica's
unequivocal
testimony that the net weight of the cocaine specimen was 47.43
grams and the results of his analysis established that it tested
positive for cocaine. The jury was presented with responsive
verdicts,
but
concluded
that
the
25
evidence
sufficed
to
prove
possession
testimony
of
was
at
least
28
sufficient
grams
to
prove
cocaine.29
of
the
Angelica's
requisite
statutory
elements and the jury's finding was not irrational.
Furthermore, there was ample evidence to support a finding
that Price exercised dominion and control over the cocaine found
in the vehicle. Contrary to his assertion, Price was not merely
present with another individual in a location where contraband
was discovered. He clearly had access to the cocaine, and was
observed by police engaging in the hand‐to‐hand exchange. Price
made a verbal statement to police that the cocaine belonged to
him. Additionally, Price was the only one in possession of any
cash upon arrest. The jury weighed this evidence, along with
evidence that Sovinette was the registered owner of the truck
and that he had been seated in the rear of the vehicle where the
cocaine
was
discovered,
and
concluded
that
the
State
proved
constructive possession by Price. When the evidence in this case
is viewed in the light most favorable to the prosecution, it
simply cannot be said that the guilty verdict was irrational.
Moreover,
the
trier
fact
of
record
to
reflects
convict
ample
evidence
notwithstanding
for
a
rational
Detective
Klein’s
testimony of Price’s admission, or Captain Halstead’s testimony
regarding the amount of cash Price possessed when booked.
Therefore,
29
Price
cannot
show
State Rec. Vol. 1 of 5, Verdict and Responsive Verdict sheet.
26
that
the
state
court's
decision rejecting his claim was contrary to, or involved an
unreasonable application of, clearly established federal law, as
determined
by
the
Supreme
Court
of
the
United
States.
Accordingly, Price’s claim that the evidence presented at trial
was insufficient to support his conviction is without merit and
should be dismissed with prejudice.
CONCLUSION
Price’s claim five is procedurally barred and claims one
through four lack merit. Accordingly, IT IS ORDERED that the
Magistrate Judge’s R&R (Rec. Doc. 18) is ADOPTED over Price’s
objections, and the instant habeas corpus petition is hereby
DISMISSED WITH PREJUDICE.
New Orleans, Louisiana, this 17th day of August, 2015.
____________________________
UNITED STATES DISTRICT JUDGE
27
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