Olivier v. Cain et al
Filing
41
ORDER AND REASONS ADOPTING 37 REPORT AND RECOMMENDATIONS. IT IS HEREBY ORDERED that the State's 38 objections are OVERRULED; IT IS FURTHER ORDERED that Petitioner Ronald Olivier's application for habeas corpus relief is GRANTED, that hi s sentence of life imprisonment without benefit of probation, parole or suspension of sentence is VACATED, and that the state trial court is ORDERED to resentence Petitioner in conformity with Miller v. Alabama, 132 S.Ct. 2455 (2012), within ninety (90) days or, in the alternative, to release him from confinement. Signed by Judge Nannette Jolivette Brown on 10/3/2016.(mmv)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
RONALD OLIVIER
CIVIL ACTION
VERSUS
NO. 14-2773
N. BURL CAIN, WARDEN
SECTION “G”(2)
ORDER AND REASONS
Before the Court are the State’s objections to the Report and Recommendation of the
United States Magistrate Judge assigned to the case.1 Petitioner, a state prisoner incarcerated at the
Louisiana State Penitentiary in Angola, Louisiana, filed a petition for writ of habeas corpus
pursuant to 28 U.S.C. § 2254.2 On August 15, 2016, the Magistrate Judge recommended that the
Court grant the petition.3 The State objects to the Magistrate’s recommendation.4 After reviewing
the petition, the Magistrate Judge’s Report and Recommendation, the State’s objection, the record,
and the applicable law, the Court will overrule the State’s objections, adopt the Magistrate Judge’s
Report and Recommendation and grant the habeas petition.
I. Background
A.
Factual Background
On February 10, 1993, Petitioner, who was 16 years old at the time the crime was
committed, was convicted of second degree murder under Louisiana law in Orleans Parish
1
Rec. Doc. 38.
2
Rec. Doc. 3.
3
Rec. Doc. 37.
4
Rec. Doc. 38.
1
Criminal District Court.5 On April 12, 1993, the state trial court sentenced Petitioner to life
imprisonment without benefit of parole, probation, or suspension of sentence.6 Petitioner’s
conviction and sentence were affirmed by the Louisiana Fourth Circuit Court of Appeal on
November 17, 1994.7
On June 25, 2012, in Miller v. Alabama, the United States Supreme Court held that
“mandatory life without parole for those under the age of 18 at the time of their crimes violates the
Eighth Amendment’s prohibition on ‘cruel and unusual punishments.’”8 Thereafter, Petitioner
filed a motion to correct his sentence in the state trial court, arguing that his sentence was
unconstitutional under Miller.9 The state trial court granted the motion, holding that Miller applied
retroactively.10 The Louisiana Fourth Circuit Court of Appeal denied the State’s related writ
application.11 On June 20, 2014, the Louisiana Supreme Court granted the State’s related writ
application, and reversed the grant of Petitioner’s motion to correct the sentence based on its ruling
in State v. Tate that Miller did not retroactively apply on collateral review.12
At a November 25, 2013 hearing, the state trial court formally denied Petitioner’s motion
to correct the sentence pursuant to the Louisiana Supreme Court’s decision.13 The Louisiana
5
State Rec., Vol. IV of X, Trial Minutes, Feb. 10, 1993.
6
State Rec., Vol. IV of X, Sentencing, Apr. 12, 1993.
7
State v. Olivier, 646 So. 2d 1262 (La. App. 4 Cir. 1994); State Rec., Vol. IV of X.
8
132 S. Ct. 2455, 2460 (2012).
9
State Rec., Vol. II of X, Motion to Correct Illegal Sentence, Feb. 27, 2013.
10
State Rec., Vol. X of X, Hearing Transcript, Jul. 18, 2013.
11
State Rec., Vol. I of X, Fourth Circuit Order, May 17, 2013.
12
State v. Olivier, 2013‐KK‐1110 (La. 6/20/14); 141 So. 3d 266 (citing 130 So.2d 829 (La. 2013)).
13
State Rec., Vol. I of X, Trial Court Judgment, Nov. 25, 2013.
2
Fourth Circuit converted Petitioner’s appeal to a writ application and denied the writ application
based on the Louisiana Supreme Court’s decision in State v. Tate.14 Petitioner did not seek review
of this ruling to the Louisiana Supreme Court.
On January 2, 2015, Petitioner filed his federal petition.15 Petitioner filed an unopposed
motion to stay the proceedings pending the United States Supreme Court’s decision in
Montgomery v. Louisiana.16 The Magistrate Judge granted the motion, and the case was stayed. 17
On January 25, 2016, the United States Supreme Court decided Montgomery v. Louisiana, holding
that Miller applies retroactively to cases on collateral review.18 On January 29, 2016, the
Magistrate Judge reopened the case.19
B.
Report and Recommendation Findings
On August 15, 2016, the Magistrate Judge recommended that this Court grant the
petition.20 The Magistrate rejected the State’s argument that the petition should be denied as
unexhausted because Louisiana courts have not had an opportunity to consider Petitioner’s claims
in light of Montgomery v. Louisiana.21 The Magistrate noted that Petitioner “did not completely
exhaust his claim through the Louisiana Supreme Court following denial of his motion to correct
14
State v. Olivier, 14-355 (La. App. 4 Cir. 9/3/14); 150 So. 3d 41.
15
Rec. Doc. 3.
16
Rec. Doc. 20.
17
Rec. Doc. 26.
18
136 S. Ct. 718, 732 (2016).
19
Rec. Doc. 28.
20
Rec. Doc. 37.
21
Id. at 8–11.
3
his sentence and the related writ application in the Louisiana Fourth Circuit.”22 However, the
Magistrate also noted that the Louisiana Supreme Court’s erroneous view regarding the
retroactivity of Miller had already been made clear when it granted the State’s writ application
reversing the lower court’s grant of Petitioner’s motion to correct.23
Moreover, the Magistrate Judge found that although the State had indicated its intent to
file a motion for the state trial court to reconsider Petitioner’s sentence, there was no indication
that such a motion was ever filed.24 A review of the state trial court record revealed that Petitioner
had filed a pro se motion to reconsider his sentence on April 4, 2016, which the trial court stayed
on April 28, 2016, pending passage of state legislation in response to Montgomery.25 However,
although the legislative effort failed months ago, the state court’s records did not reflect any effort
to move Petitioner’s case forward.26 Therefore, because Petitioner undoubtedly is entitled to relief
under Miller and Montgomery and because the available state processes demonstrated themselves
ineffective in expeditiously protecting Petitioner’s clearly established rights, the Magistrate Judge
recommended that this Court grant the habeas petition without requiring that Petitioner fully
exhaust his state court remedies.27 Accordingly, the Magistrate recommended that the sentence be
22
Id. at 11.
23
Id.
24
Id. at 13.
25
Id.
26
Id.
27
Id. at 11–14 (citing 28 U.S.C. § 2254(b)(1)(B)(ii); Taylor v. Stephens, 577 F. App’x 285, 286 (5th Cir.
2014).
4
vacated and that the state trial court be ordered to resentence Petitioner in conformity with Miller
within 90 days or, in the alternative, release him from confinement.28
II. Objections
The State objects to the Magistrate Judge’s Report and Recommendation.29 The State
admits that Petitioner is entitled to a new sentencing hearing.30 However, it submits that the state
trial court has set a resentencing hearing for September 16, 2016.31 The State asserts that, while it
has struggled to cope with the large influx of retroactive Miller claims, it has not been idle, and
the Orleans Public Defenders have been appointed to represent Petitioner.32
The State argues that, in determining whether delay in addressing a petitioner’s claims
violates due process, the Court should look to the four factors provided by the Supreme Court in
Barker v. Wingo: (1) the length of the delay, (2) the reasons for the delay, (3) the petitioner’s
assertion of his right, and (4) the prejudice to the petitioner on account of the delay.33 The State
asserts that it is questionable whether a delay of eight months, the amount of time that has now
passed since Montgomery was decided, can be considered presumptively prejudicial.34 The State
contends that there have been a number of legitimate reasons for delay, including the failed
28
Id. at 15.
29
Rec. Doc. 38.
30
Id. at 2.
31
Id. (citing Rec. Doc. 38-1).
32
Id. at 4.
33
Id. at 6 (citing 407 U.S. 514, 530 (1972)).
34
Id.
5
legislation.35 Further, the State argues that Petitioner is not prejudiced by the delay because he has
served approximately 25 years in prison, and would not be parole eligible under Louisiana law
before serving 35 years of his sentence.36 Accordingly, the State asserts that this is not a rare case
of peculiar urgency in which review of Petitioner’s claim has been delayed inordinately and
unjustifiably, and therefore the Court should stay the case or dismiss the petition without
prejudice.37
On September 19, 2016, the State filed a notice into the record, stating that Petitioner had
retained counsel to represent him in state court.38 Therefore, the resentencing hearing was
continued to October 7, 2016.39
III. Standard of Review
A.
Review of the Magistrate Judge’s Report and Recommendation
In accordance with Local Rule 73.2, this case was referred to the Magistrate Judge to
provide a Report and Recommendation. A district judge “may accept, reject, or modify the
recommended disposition” of a magistrate judge on a dispositive matter.40 A district judge must
“determine de novo any part of the [Report and Recommendation] that has been properly objected
35
Id.
36
Id. at 7.
37
Id. at 8.
38
Rec. Doc. 39 at 1.
39
Id.
40
Fed. R. Civ. P. 72(b)(3); see also 28 U.S.C. § 636(b)(1).
6
to.”41 A district court’s review is limited to plain error for parts of the report which are not properly
objected to.42
B.
Standard of Review Under the AEDPA
The Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”) limits the power
of federal courts to grant writs of habeas corpus in cases where a state court has adjudicated the
petitioner’s claim on the merits.43
Under 28 U.S.C. § 2254(d)(1), a federal court must defer to the state court’s decision as to
questions of law and mixed questions of law and fact unless it “was contrary to, or involved an
unreasonable application of clearly established federal law, as determined by the Supreme Court.”
The Supreme Court has made a distinction between the application of the “contrary to” and
“unreasonable application” clauses.44 A federal habeas court may issue the writ under the “contrary
to” clause if the state court applies a rule in a way that is inconsistent with governing law and
Supreme Court precedent on identical facts; a federal habeas court may issue the writ under the
“unreasonable application” clause if the state court unreasonably applies the governing law to the
facts of the case.45
41
Fed. R. Civ. P. 72(b)(3).
42
See Douglass v. United Servs. Auto. Ass’n, 79 F.3d 1415, 1428–29 (5th Cir. 1996) (en banc), superseded
by statute on other grounds, 28 U.S.C. § 636(b)(1) (extending time to file objections from ten to fourteen days).
43
See Hill v. Johnson, 210 F.3d 481, 485 (5th Cir. 2000).
44
See Bell v. Cone, 535 U.S. 685, 694 (2002) (citing Williams v. Taylor, 529 U.S. 362, 403–04 (2000)).
45
Id.
7
Under 28 U.S.C. § 2254(d)(2), factual findings are presumed to be correct and a federal
court will give deference to the state court’s decision unless it “was based on an unreasonable
determination of the facts in light of the evidence presented in the state court proceeding.”46
IV. Law and Analysis
On June 25, 2012, in Miller v. Alabama, the United States Supreme Court held that
“mandatory life without parole for those under the age of 18 at the time of their crimes violates the
Eighth Amendment’s prohibition on ‘cruel and unusual punishments.’”47 Thereafter, Petitioner
filed a motion to correct his sentence in the state trial court, arguing that his sentence was
unconstitutional under Miller.48 The state trial court granted the motion, holding that Miller applied
retroactively.49 The Louisiana Fourth Circuit Court of Appeal denied the State’s related writ
application.50 On June 20, 2014, the Louisiana Supreme Court granted the State’s related writ
application, and reversed the grant of Petitioner’s motion to correct the sentence based on its ruling
in State v. Tate that Miller did not retroactively apply on collateral review.51 At a November 25,
2013 hearing, the state trial court formally denied Petitioner’s motion to correct the sentence
pursuant to the Louisiana Supreme Court’s decision.52 The Louisiana Fourth Circuit converted
Petitioner’s appeal to a writ application and denied the writ application based on the Louisiana
46
28 U.S.C. § 2254(d)(2); see also Hill v. Johnson, 210 F.3d 481, 485 (5th Cir. 2000).
47
132 S. Ct. 2455, 2460 (2012).
48
State Rec., Vol. II of X, Motion to Correct Illegal Sentence, Feb. 27, 2013.
49
State Rec., Vol. X of X, Hearing Transcript, Jul. 18, 2013.
50
State Rec., Vol. I of X, Fourth Circuit Order, May 17, 2013.
51
State v. Olivier, 2013‐KK‐1110 (La. 6/20/14); 141 So. 3d 266 (citing 130 So.2d 829 (La. 2013)).
52
State Rec., Vol. I of X, Trial Court Judgment, Nov. 25, 2013.
8
Supreme Court Tate decision.53 Petitioner did not seek review of this ruling to the Louisiana
Supreme Court. Following the Louisiana Fourth Circuit’s decision in this case, the United States
Supreme Court decided Montgomery v. Louisiana, holding that Miller applies retroactively to
cases on collateral review.54
“A fundamental prerequisite for federal habeas relief under § 2254 is the exhaustion of all
claims in state court prior to requesting federal collateral relief.”55 The Fifth Circuit has recognized
that “habeas corpus jurisprudence consistently underscores the central importance of comity, of
cooperation and of rapport between the parallel systems of state and federal courts.”56 “These
concerns animate [the court’s] strict adherence to the doctrine of exhaustion—i.e., the notion that
federal courts will not consider a claim on habeas review if it has not been considered and finally
rejected by the state courts.”57
Here, the record indicates that Petitioner did not fully exhaust his claim in state court
because he did not file a writ application with the Louisiana Supreme Court following denial of
his motion to correct his sentence and the related writ application in the Louisiana Fourth Circuit.
Therefore, Petitioner did not fully exhaust his state court remedies. However, the Louisiana
Supreme Court’s erroneous view regarding the retroactivity of Miller had already been made clear
when it granted of the State’s writ application reversing the lower court’s order granting
53
State v. Olivier, 14-355 (La. App. 4 Cir. 9/3/14); 150 So. 3d 41.
54
136 S. Ct. 718, 732 (2016).
55
Whitehead v. Johnson, 157 F.3d 384, 397 (5th Cir. 1998) (citing Rose v. Lundy, 455 U.S. 509, 519–20
56
Gomez v. Dretke, 422 F.3d 264, 266 (5th Cir. 2005) (internal citations and quotation marks omitted).
57
Id.
(1982)).
9
Petitioner’s motion to correct.
Pursuant to 28 U.S.C. § 2254(b)(1)(B), an unexhausted claim should not be granted unless
it appears that “there is an absence of available State corrective process; or circumstances exist
that render such process ineffective to protect the rights of the applicant.” In Taylor v. Stephens,
the Fifth Circuit recognized that “[e]xhaustion may only be bypassed in rare cases where
exceptional circumstances of peculiar urgency mandate federal court interference,” such as when
“the state system inordinately and unjustifiably delays review of a petitioner’s claims so as to
impinge upon his due process rights.”58 The Fifth Circuit has emphasized that courts “are to excuse
noncompliance with the exhaustion doctrine only if the inordinate delay is wholly and completely
the fault of the state.”59 In determining whether a delay violates due process, the Court looks to
the factors set forth by the Supreme Court in Barker v. Wingo: “the length of the delay, the reasons
for the delay, the defendant’s assertion of his right, and the prejudice to the defendant occasioned
by the delay.”60
Looking to the first Barker factor, Montgomery was decided by the Supreme Court eight
months ago. As for the second factor, the state trial court stayed Petitioner’s motion for
reconsideration of his sentence pending passage of state legislation in response to Montgomery.
However, this legislation ultimately failed in the state legislature.61 Therefore, although the most
recent request to continue the resentencing hearing from September 16, 2016 to October 7, 2016
58
577 F. App’x 285, 286 (5th Cir. 2014).
59
Deters v. Collins, 985 F.2d 789, 795 (5th Cir. 1993).
60
Johnson v. Roberts, 95 F.3d 48, 1996 WL 405773, at *2 (5th Cir. 1996) (citing 407 U.S. 514, 530 (1972)).
61
HB 264, HB 554, SB 127, and SB 278 are available on the Legislature’s website, and may be accessed
using
the
“Bill
Search”
function
for
the
2016
Regular
Session
at
http://www.legis.la.gov/Legis/BillSearch.aspx?sid=16RS.
10
was jointly filed by the parties because Petitioner had retained new counsel to represent him in
state court,62 the prior delays since Montgomery was decided by the Supreme Court in January
2016 appear to have been wholly caused by the fault of the State.63
Turning to the third factor, Petitioner has been diligently pursuing his rights since the
Supreme Court decided Miller in 2012. As for the fourth factor, the State argues that Petitioner is
not prejudiced by the delay because he has only served approximately 25 years in prison, and
would not be parole eligible under Louisiana law before serving 35 years of his sentence. The
Court finds this argument unavailing because Petitioner is currently serving an unconstitutional
sentence, and the State would be required to release him from confinement if the error remains
uncorrected. Moreover, granting Petitioner’s habeas petition does not deprive the state court of its
right to determine the relief to which Petitioner is entitled. Accordingly, the Court overrules the
State’s objection and grants Petitioner’s application for habeas corpus relief.
V. Conclusion
For the reasons stated above, the Court finds that Petitioner is entitled to relief from his
unconstitutional sentence. Accordingly,
IT IS HEREBY ORDERED that the State’s objections are OVERRULED;
IT IS FURTHER ORDERED that the Court ADOPTS the Magistrate Judge’s
recommendation;
62
Rec. Doc. 39 at 1. Although there is a hearing scheduled for October 7, 2016, the resentencing hearing has
been continued several times. Moreover, the state court would not be required to rule from the bench, and additional
delays could result.
63
See Deters, 985 F.2d at 796.
11
IT IS FURTHER ORDERED that Petitioner Ronald Olivier’s application for habeas
corpus relief is GRANTED, that his sentence of life imprisonment without benefit of probation,
parole or suspension of sentence is VACATED, and that the state trial court is ORDERED to
resentence Petitioner in conformity with Miller v. Alabama, 132 S.Ct. 2455 (2012), within ninety
(90) days or, in the alternative, to release him from confinement.
3rd
NEW ORLEANS, LOUISIANA, this ____ day of October, 2016.
________________________________
NANNETTE JOLIVETTE BROWN
UNITED STATES DISTRICT JUDGE
12
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