Bruce v. McCain et al

Filing 17

ORDER AND REASONS: IT IS ORDERED that the objections are OVERRULED. IT IS FURTHER ORDERED that the 14 Report is ADOPTED. IT IS FURTHER ORDERED that Petitioner's claims are DISMISSED WITH PREJUDICE. Signed by Judge Ivan L.R. Lemelle on 3/28/2017.(mmv)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA

KERRY BRUCE

CIVIL ACTION

VERSUS

NO. 15-3814

SANDY MCCAIN, WARDEN

SECTION “B” (5)
ORDER AND REASONS

I.

NATURE OF MOTION AND RELIEF SOUGHT
Before

the

Court

is

Petitioner

Kerry

Bruce’s

pro

se

application for a writ of habeas corpus under 28 U.S.C. § 2254.
Rec. Doc. 1 at 1. The matter was referred to United States
Magistrate

Judge

subsequently

Michael

issued

a

B.

Report

North
and

to

conduct

a

hearing.

He

Recommendation

(Report)

to

dismiss the petition with prejudice. Rec. Doc. 14 at 1. In response
to the Report, Petitioner timely filed objections. Rec. Doc. 15.
For the reasons outlined below,
IT IS ORDERED that the objections are OVERRULED.
IT IS FURTHER ORDERED that the Report is ADOPTED.
IT IS FURTHER ORDERED that Petitioner’s claims are DISMISSED
WITH PREJUDICE.
II.

FACTUAL BACKGROUND AND PROCEDURAL HISTORY
On June 18, 2012, Petitioner pled guilty to attempted second-

degree murder and possession of a firearm while in the commission
of a crime of violence. Rec. Doc. 14 at 1. In accordance with the
plea agreement, the trial court sentenced Petitioner to twenty1

five (25) years imprisonment for count one, attempted second–
degree murder, and ten (10) years imprisonment for count two,
possession of a firearm during the commission of a crime of
violence. Id. at 1-2. The trial court ordered the sentences to run
concurrently, without benefits, but with credit for time served.
Rec. Doc. 1-1 at 27.
The State then filed a multiple offender bill of information
against Petitioner, pursuant to Louisiana Revised Statute section
15:529.1, seeking to have defendant adjudicated as a second felony
offender. State v. Bruce 121 So.3d 796, 797 (La. App. 5 Cir. 2013).
After Petitioner entered a guilty plea to the multiple offender
bill, the trial court vacated its original sentence as to count
one, attempted second-degree murder, and resentenced Petitioner as
a habitual offender to twenty-five (25) years at hard labor,
without the benefit of probation or suspension of sentence, but
with credit for time served. Rec. Doc. 1 at 29-30.
On direct appeal, the Louisiana Fifth Circuit Court of Appeal
found that the guilty pleas and sentences presented no issues,
and, accordingly, affirmed the convictions and sentences. Bruce,
121 So.3d at 800. The court also granted counsel’s motion to
withdraw. Id. Petitioner did not seek a writ of certiorari in the
Louisiana Supreme Court. Rec. Doc. 14 at 2-3.
On October 21, 2013, Petitioner filed an application for postconviction relief with the state district court, which was denied
2

on May 5, 2014. Rec. Doc. 1-1 at 44, 62. Subsequently, he filed
writ applications to the Louisiana Fifth Circuit, and the Louisiana
Supreme Court, both of which were denied. Id. at 88, 115.
Then,

Petitioner

filed

a

federal

application

for

habeas

corpus relief, asserting four grounds for relief: (1) the evidence
was not sufficient to support his conviction for second degree
murder; (2) the trial court did not inform him during the plea
colloquy of his right against self-incrimination; (3) defense
counsel was ineffective for failing to conduct adequate pretrial
investigation before advising Petitioner to enter a guilty plea;
and (4) Petitioner was not properly advised of the nature of the
offenses to which he was pleading guilty. Rec. Doc. 15 at 1.
III. MAGISTRATE JUDGE’S REPORT AND RECOMMENDATIONS
In

his

Report,

Magistrate

Judge

North

recommended

that

Petitioner’s application for a writ of habeas corpus be dismissed
with prejudice. Rec. Doc. 14 at 1. The Report construed claims 1
and 3 as challenges to the sufficiency of evidence and denied
Petitioner’s

objections

because

Petitioner

waived

all

non-

jurisdictional defects preceding the plea when he plead guilty.
Rec. Doc. 14 at 6-8. The Report also denied claims 2 and 4, because
they directly contradicted the record. Id. at 9-16.
IV.

PETITIONER’S OBJECTIONS
In his objections to the Report, Petitioner first argues that

“[t]he [t]rial [c]ourt failed to meet the essential elements
3

required by law to constitute” attempted second degree murder
according to Louisiana Revised Statutes section 14:30.1. Rec. Doc.
15 at 1. Specifically, Petitioner contends that, even though he
pled guilty to the charges, the State still had a responsibility
to refrain from prosecuting any case that the prosecutor knows is
not supported by probable cause, pursuant to Louisiana State Bar
Article 16, Rules of Professional Conduct, Rule 3.8(a). Id. at 3.
Furthermore, Petitioner argues that his conviction was obtained in
violation of his rights to due process of law and equal protection,
according to the Fifth and Fourteenth Amendments of the United
States Constitution and subsection two of Article One of the
Louisiana Constitution because of the prosecutorial misconduct.
Id. 1
Second, Petitioner argues that the trial court failed to
inform him of his right against self-incrimination under Louisiana
Code of Criminal Procedure Article 556(A)(3). Rec. Doc. 15 at 4.
Third,

Petitioner

asserts

that

defense

counsel

was

ineffective for failing to conduct adequate pretrial investigation
before advising Petitioner to enter a guilty plea. Rec. Doc. 15 at

1

Petitioner raises this argument, his conviction was obtained on the ground of
prosecutorial misconduct, for the first time in his reply brief to the
Defendant’s response in opposition to granting a writ of habeas corpus. Rec.
Doc. 13 at 3-5. This Court will not consider issues when they are raised for
the first time in a reply brief. United States v. Prince, 868 F.2d 1379, 1386
(5th Cir. 1989); United States v. Jones, 2016 WL 1383656, at *7 (E.D. La. 2016).

4

5. Petitioner claims that if counsel would have conducted an
adequate pretrial investigation, he would have determined that the
State would have lost at trial. Id.
Finally, Petitioner argues that his due process rights were
violated by the trial court’s failure to properly advise him of
the nature of the offenses to which he was pleading guilty, in
violation

of

Louisiana

Code

of

Criminal

Procedure

Article

556.1(A). Rec. Doc. 15 at 6. Specifically, Petitioner asserts that
he was not informed, by an attorney or the trial judge, of the
specific elements of the charges to which he was pleading guilty.
Id.
V.

LAW AND ANALYSIS
In relevant part, 28 U.S.C. § 2254(d)(1) and (2), as amended

by The Antiterrorism and Effective Death Penalty Act of 1996
(AEDPA), provides the applicable standards of review for habeas
corpus petitions. A state court’s purely factual determinations
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.” 28 U.S.C. § 2254(d)(2);
see also 28 U.S.C. § 2254(e)(1) (“In a proceeding instituted by an
application for a writ of habeas corpus by a person in custody
pursuant to the judgment of a State court, a determination of a
factual issue made by a State court shall be presumed to be
5

correct. The applicant shall have the burden of rebutting the
presumption of correctness by clear and convincing evidence.”). As
to a state court’s determination of pure questions of law or mixed
questions of law and fact, a federal court must defer to the state
court’s decision unless that decision “was contrary to, or involved
an unreasonable application of, clearly established Federal law,
as determined by the Supreme Court of the United States.” 28 U.S.C.
§2254(d)(1).

The

“contrary

to

and

unreasonable

application”

clauses have independent meanings: a federal habeas court may issue
the writ under the “contrary to” clause if the state court applies
a rule different from the governing law or if it decides a case
differently than the Supreme Court has done on a set of materially
indistinguishable facts, while the habeas court may grant relief
under the “unreasonable application” clause if the state court
correctly

identifies

the

governing

legal

principle,

but

unreasonably applies it to the facts of the particular case. Bell
v. Cone, 535 U.S. 685, 694 (2002).
In

Petitioner’s

first

objection,

he

argues

that

“[t]he

[t]rial [c]ourt failed to meet the essential elements required by
law to constitute the offenses of La. RS. 14:30.1, Attempted Second
Degree Murder.” Rec. Doc. 15 at 1. Specifically, Petitioner asserts
that

his

conviction

was

obtained

because

of

“prosecutorial

misconduct,” pursuant to Louisiana State Bar Article 16, Rules of
Professional Conduct, Rule 3.8(a), and therefore violated his
6

constitutional rights to due process of law and equal protection.
Id. at 3.
“When a criminal defendant has solemnly admitted in open court
that he is in fact guilty of the offense with which he is charged,
he may not thereafter raise independent claims relating to the
deprivation of constitutional rights that occurred prior to the
entry of the guilty plea.” United States v. Owens, 996 F.2d 59, 60
(5th Cir. 1993). In other words, by pleading guilty to an offense,
a

criminal

defendant

waives

all

non-jurisdictional

defects

preceding the plea. Id. However, a criminal defendant’s plea of
guilty does not bar claims based on the voluntariness of his plea.
United States v. Futch, 278 F. App’x 387, 391 (5th Cir. 2008).
Here, the state courts’ determination of the first objection
being a sufficiency of evidence argument is not an unreasonable
determination.

Petitioner

is

challenging

the

sufficiency

of

evidence insofar as he is arguing that the evidence did not
sufficiently prove the essential elements required by law to
constitute the offense of attempted second degree murder. Rec.
Doc. 1 at 9-16. To support this claim, Petitioner cites to Jackson
v. Virginia, where the Supreme Court articulated a standard for
courts when reviewing the sufficiency of evidence. 43 U.S. 307
(1979). Because Petitioner cited Jackson, it was not unreasonable
for the state court to construe this objection as a sufficiency of

7

evidence argument. Accordingly, we agree that this objection to a
non-jurisdictional defect was waived when Petitioner pled guilty. 2
In Petitioner’s second objection, he contends that the trial
court erred when it failed to inform him, in open court, of his
right against self-incrimination, pursuant to the Louisiana Code
of Criminal Procedure Article 556(A)(3). Rec. Doc. 15 at 4-5.
Specifically, Petitioner argues that, since the record is void of
any mention of his right against self-incrimination, his guilty
plea is constitutionally infirm. Id. at 5. The state district court
found no merit to this claim because (1) a review of the record
clearly reveals that the court advised Petitioner of his right to
remain silent and (2) the claim is procedurally barred because the
Fifth

Circuit

previously

upheld

the

constitutionality

of

defendant’s guilty plea. Rec. Doc. 1-1 at 63. This objection was
likewise denied on supervisory review by the Louisiana Fifth
Circuit and the Louisiana Supreme Court.

Rec. Doc. 1-1 at 89,

115.

2

Even if the first objection were construed as an allegation of “prosecutorial
misconduct,” the objection would be meritless. To prevail on a claim of
prosecutorial misconduct, a petitioner must demonstrate that the prosecutor's
conduct violated a specific constitutional right or infected the trial with
such unfairness as to make the resulting conviction a denial of due process.
Donnelly v. DeChristoforo, 416 U.S. 637, 643 (1974). The complained of conduct
must be so egregious as to render the entire trial fundamentally unfair. Id. at
642-45. It is not enough to show that the prosecutor's conduct or remarks were
undesirable or even universally condemned. Darden v. Wainwright, 477 U.S. 168,
181 (1986). Here, Petitioner fails to identify any conduct or remarks that would
satisfy the “so egregious” standard set forth in Donnelly. Because Petitioner
fails to identify any conduct “so egregious to render the entire trial
fundamentally unfair,” any claim of prosecutorial misconduct is meritless.

8

A guilty plea will be upheld on habeas review if entered into
knowingly, voluntarily, and intelligently. Montoya v. Johnson, 226
F.3d 399, 405 (5th Cir. 2000). For this criteria to be met, the
record

should

reflect

an

articulation

and

waiver

of

(1)

the

privilege against self-incrimination, (2) the right to trial by
jury, and (3) the right to confront one’s accusers. Boykin v.
Alabama, 395 U.S. 238, 243 (1969). At the plea hearing in state
court, the following exchange took place during the original
sentencing:
THE COURT: Do you understand you’re giving up the following
rights; a right to a trial by judge or jury?
PETITIONER: Yes.
THE COURT: A right to be presumed innocent until the
district attorney proves your guilt beyond a reasonable
doubt?
PETITIONER: I do.
THE COURT: A right to force the district attorney to call
witnesses who, under oath, would have to testify against
you at trial and to have your attorney ask questions of
those witnesses?
PETITIONER: Yes, sir.
THE COURT: A right to confront your accusers at trial?
PETITIONER: Yes sir.
THE COURT: A right to testify yourself at trial if you
choose to do so or remain silent if you choose not to
testify and not have your silence held against you or
considered as evidence of your guilt?
PETITIONER: Yes.
THE COURT: The right to present witnesses who would testify
for you and/or evidence that would be helpful or favorable
to you?
PETITIONER: Yes.
THE COURT: The right to appeal any verdict of guilty that
might be returned against you at trial?
PETITIONER: Yes.

9

Rec. Doc. 1-1 at 16-18. Additionally, the following exchange took
place

regarding

Petitioner’s

plea

hearing

for

the

multiple

offender bill of information:
THE COURT: A right to testify yourself at trial if you
choose to do so or remain silent if you choose not to
testify and not have your silence held against you or
considered as evidence of your guilt?
PETITIONER: Yes.
THE COURT: The right to present witnesses who would testify
for you and/or evidence that would be helpful or favorable
to you?
PETITIONER: Yes.
THE COURT: The right to appeal any verdict of guilty that
might be returned against you at trial?
PETITIONER: Yes.
THE COURT: You understand the sentencing range for attempt
second degree murder is 10 years to 50 years Department of
Corrections?
PETITIONER: Yes.
THE COURT: And that if the prior conviction was a result
of a guilty plea, that at the time, you were properly
advised of your right to a trial by jury, your right to
cross examine the state’s witnesses, your right to remain
silent and not have your silence held against you; you
understand that?
PETITIONER: Yes, sir.
THE COURT: Okay. You understand that the sentencing range
as a multiple offender in this case is 25 years at hard
labor to a maximum of 100 years without the benefit of
probation or suspension of sentence?
PETITIONER: Yes, sir.
Rec. Doc. 1-1 at 13-15. The record indicates that the Petitioner’s
guilty plea, on both the original and multiple offender bills of
information,

were

entered

into

“knowingly,

voluntarily,

and

intelligently” because Petitioner was advised of his right to a
jury trial, his privilege against self-incrimination, and his
right to confront one’s accusers. Rec. Doc. 1-1 at 14-18. In

10

addition to the Petitioner being advised in open court, Petitioner
voluntarily and knowingly waived his constitutional rights by
signing his initials on both the original and multiple offender
plea agreements. Rec. Doc. 1 at 26, 28. The state courts’ denial
of this claim was not contrary to or an unreasonable application
of clearly established federal law. Thus, Petitioner’s second
objection has no merit.
In

Petitioner’s

third

objection,

he

argues

that

counsel

rendered ineffective assistance by failing to conduct an adequate
pretrial investigation before advising him to plead guilty to
attempted second degree murder, when, in fact, the evidence could
not have supported a conviction. Rec. Doc. 15 at 5. The state
district

court

construed

this

claim

as

a

challenge

to

the

sufficiency of the evidence because Petitioner did not make any
argument to support an ineffective assistance of counsel claim in
his memorandum in support. Rec. Doc. 1-1 at 62. The state district
court ruled that non-jurisdictional defects in proceedings before
a guilty plea were waived and therefore, Petitioner’s “ineffective
assistance of counsel claim could not be the basis for postconviction relief.” Id. at 62-63. Additionally, the state district
court found that this claim was merely speculative and conclusory,
and that Petitioner failed to prove either that his counsel acted
deficiently, or that he was prejudiced by his counsel’s actions.
Id. at 62. This objection was likewise denied on supervisory review
11

by the Louisiana Fifth Circuit and the Louisiana Supreme Court,
without stated reasons. Id. at 88, 115.
Again, a guilty plea knowingly, willingly, and voluntarily
entered into generally waives all non-jurisdictional defects that
occurred prior to the plea. Tollet v. Henderson, 411 U.S. 258, 267
(1973);

Owens,

996

F.2d

59,

60

(5th

Cir.

1993).

However,

a

Petitioner may raise a claim of ineffective assistance of counsel
to the extent that it affected the voluntariness of his plea.
United States v. Cavitt, 550 F.3d 430, 441 (5th Cir. 2008) (“once
a guilty plea has been entered, all nonjurisdictional defects in
the proceedings against a defendant are waived,” and the waiver
“includes all claims of ineffective assistance of counsel, except
insofar

as

the

alleged

ineffectiveness

relates

to

the

voluntariness of the giving of the guilty plea.”) (quoting Smith
v. Estelle, 711 F.2d 677, 682 (5th Cir.1983)).
A claim of ineffective assistance of counsel is a mixed
question of law and fact and should be reviewed under the “contrary
to” and “unreasonable application” prong of § 2254(d). Moore v.
Cockrell, 313 F.3d 880, 881 (5th Cir. 2002).
Here,

Petitioner

does

not

argue

that

counsel’s

actions

rendered his plea involuntary; rather, he merely asserts that
counsel failed to conduct an adequate pre-trial investigation.
Rec. Doc. 15 at 5. However, Petitioner initialed and signed two
(2) waiver of constitutional right forms indicating that he was
12

not forced, coerced, or threatened into entering his guilty plea
and that he was satisfied with the way his attorney handled the
case. Rec. Doc. 1 at 26, 28. Because Petitioner does not argue
ineffective assistance of counsel relating to the voluntariness of
the guilty plea, this claim was waived when Petitioner pled guilty.
Again, Petitioner’s third objection has no merit. 3
In Petitioner’s final objection, he alleges that the trial
court did not properly advise him as to the nature of the charges
to which he was pleading guilty. Rec. Doc. 15 at 6. Specifically,
Petitioner argues that the trial court failed to set forth the
specific elements for each offense, in violation of Louisiana Code
of Criminal Procedure 556.1(A). Id. The state district court found
no merit to the claim, noting that the court clearly advised the
defendant of the charges to which he was pleading guilty, along
with the sentencing range for each charge. Rec. Doc. 1-1 at 63.
The Louisiana Fifth Circuit Court of Appeal found no error in the

3

Even if the third objection were construed as an allegation of unconstitutional
ineffective assistance of counsel, the objection would be meritless. The United
States Supreme Court has established a two-pronged test for evaluating claims
of ineffective assistance of counsel. A habeas petitioner must prove: (1)
counsel’s performance was constitutionally deficient; and (2) the deficient
performance prejudiced his defense. Strickland v. Washington, 466 U.S. 668, 697
(1984). If a court finds that a petitioner has made an insufficient showing as
to either of the two prongs of inquiry, it may dispose of the ineffective
assistance claim without addressing the other prong. Id. Here, Petitioner fails
to address any case law or conduct relating to the effectiveness of counsel to
satisfy the two-prong Strickland test.

13

trial court’s denial of this claim. Id. at 88. The Louisiana
Supreme Court denied relief without stated reason. Id. at 115.
Here,

Petitioner

asserts

he

suffered

from

the

alleged

violation(s) of the Louisiana Code of Criminal Procedure 556.1(A),
and not from a federal constitutional violation. Rec. Doc. 15 at
6. Because this Court on habeas review is limited to constitutional
issues,

this

claim

has

no

merit.

28

U.S.C.

§

2254(d)(1).

Additionally, the record reveals that Petitioner was aware of the
nature and elements of the charges of attempted second-degree
murder and possession of a firearm during the commission of a crime
of violence because Petitioner signed and initialed the waiver of
constitutional rights for the original and multiple offender plea
of

guilty.

Rec.

Doc.

1

at

26-30.

Moreover,

the

trial

court

explicitly set forth both charges to which he was entering his
plea of guilty and the sentencing range for each offense. Rec.
Doc.

1-1

at

18

(“You

understand

the

sentencing

range

for

attempt[ed] second degree murder is 10 years to 50 years Department
of Correction... And for the illegal use of the firearm during a
crime of violence, the sentencing range is five to 10 years
Department of Corrections”). Again, Petitioner’s fourth objection
has no merit.
New Orleans, Louisiana, this 28th day of March, 2017.

___________________________________
SENIOR UNITED STATES DISTRICT JUDGE
14