George v. Kent et al

Filing 34

ORDER AND REASONS: IT IS ORDERED that the Magistrate Judge's 30 Report and Recommendation is ADOPTED; Petitioners objections are OVERRULED; and the instant habeas corpus petition is DISMISSED WITH PREJUDICE, as set forth in document. Signed by Judge Ivan L.R. Lemelle on 12/4/2017.(jls)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
LENNIS A. GEORGE

CIVIL ACTION

VERSUS

NO. 16-1968

JASON KENT

SECTION “B”(1)
ORDER AND REASONS

Before the Court is the pro se petition of Lennis A. George
(“Petitioner”) for issuance of a writ of habeas corpus pursuant to
28 U.S.C. § 2254. Rec. Doc. 3 at 1. The Magistrate Judge issued a
Report

and

Recommendation

(“Report”),

advising

dismissal

of

Petitioner’s writ of habeas relief with prejudice. Rec. Doc. 30 at
1. On September 8, 2017, Petitioner timely filed objections,
requesting the Court reject the Magistrate Judge’s Report and
Recommendation. Rec. Doc. 33 at 1.
For the reasons enumerated below, IT IS ORDERED that the
Magistrate

Judge’s

Report

and

Recommendation

is

ADOPTED;

Petitioner’s objections are OVERRULED; and the instant habeas
corpus petition is DISMISSED WITH PREJUDICE.
FACTS AND PROCEDURAL HISTORY
This request for habeas relief arises out of Petitioner’s
incarceration at the Dixon Correctional Institute (“Dixon”) in
Jackson, Louisiana. His conviction and sentence are based on the
following: Lennis A. George saw the victim driving her vehicle on
the highway and requested her to pull her vehicle over for them to
speak. Rec. Doc. 30 at 8. The victim refused and Petitioner then
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began to ram her vehicle off the road. Id. The victim pulled her
vehicle over and got out. Id. Petitioner approached her, stabbing
her repeatedly with a small knife. Id. After bystanders attempted
to stop Petitioner from attacking the victim, Petitioner fled the
scene. Id.
On July 21, 2010, a state district court jury convicted
Petitioner of attempted manslaughter under Louisiana law. Rec.
Doc. 3 at 1 (referring to La. Rev. Stat. Title 14 §§ 27 and 31).
On August 27, 2010, the court sentenced Petitioner as a fourth
offender to serve a term of thirty-five years of imprisonment.
Rec. Doc. 3 at 1. The Louisiana Fourth Circuit Court of Appeal
affirmed Petitioner’s conviction and then, on February 17, 2012,
the Louisiana Supreme Court denied his related writ of review.
Rec. Doc. 3 at 2.

On July 3, 2013, Petitioner filed a supplemental

memorandum to the state district court in support of his postconviction application, in which the state district court denied.
State Rec., Vol. 7 of 7; Rec. Doc. 3 at 6. The Louisiana Fourth
Circuit

Court

of

Appeal

denied

Petitioner’s

related

writ

applications for review of the state district court’s denial of
his post-conviction relief (State v. George, No. 2015-K-0213 (La.
App. 4th Cir. Mar. 16, 2015); State Rec., Vol. 7 of 7); and the
Louisiana Supreme Court did likewise on January 25, 2016. State
Rec., Vol. 7 of 7.

2

On March 4, 2016, Petitioner filed the instant federal habeas
corpus petition under 28 U.S.C. § 2254. Rec. Doc. 3. The state
filed a response, arguing that the court should deny Petitioner’s
habeas application because Petitioner failed to submit his state
district court application for post-conviction relief before the
May 17, 2013, deadline for filing such claim. Rec. Doc. 15 at 7.
Petitioner responded by amending his habeas application to include
documentation that he mailed his habeas application to the state
district court, supporting his contention he timely filed his
habeas application to the state district court. Rec. Doc. 16. In
turn, the state filed two responses, one addressing Petitioner’s
alleged supporting documents (Rec. Doc. 20) and another discussing
the merits of Petitioner’s underlying habeas claims (Rec. Doc.
27).
LAW AND ANALYSIS
The Magistrate Judge found that Petitioner timely filed his
post-conviction application to the state district court, despite
the court not receiving it, because Petitioner timely mailed his
application. Rec. Doc. 30 at 4. The Magistrate Judge then noted
that Petitioner diligently pursued his application by seeking
post-conviction relief at both the state and federal level. Id. at
7. The record and law support finding the one-year period of
limitation for filing a federal application for habeas corpus had
tolled and Petitioner’s application was filed timely. Id.
3

When

analyzing

Petitioner’s

substantive

claims,

the

Magistrate Judge separated Petitioner’s claims based on whether
the state courts heard the claims on direct or collateral review.
Rec. Doc. 30 at 9. Direct review claims are Petitioner’s claims
denied on their merits by the state court on direct appeal; those
claims are as follows:
1.
2.
3.
4.

Intention to Kill (Rec. Doc. 3-2 at 15.)
“Other Crimes” Evidence (Id. at 16.)
Mistrial (Id. at 18.)
24-Hour Delay (Id. at 18.)

Collateral review claims are claims asserted for post-conviction
relief; those claims are as follows:

1.
2.
3.
4.
5.
6.
7.
8.
9.
10.
11.
12.
13.
14.
15.
16.

Sequestration Motion (Rec. Doc. 3-2 at 10.)
Ineffective Assistance of Trial Counsel (Id. at 10.)
Double Jeopardy (Id. at 12.)
Perjury (Id. at 12.)
Bill of Information (Id. at 14.)
Inadmissible Evidence (Id.)
Intention to Kill (Id. at 15.)
”Other Crimes” Evidence (Id. at 16.)
False Transcript (Id.)
Mistrial (Id. at 18.)
24-Hour Delay (Id.)
Illegal Multiple Bill of Information (Id.)
Motion to Suppress (Id. at 20.)
Fabricating (Id.)
Equal Protection Clause (Id.)
Without Holding [sic] Evidence (Id.)

The state courts denied many of Petitioner’s direct review
claims on their merits. Rec. Doc. 30 at 12. The Magistrate Judge
correctly

reviewed

Petitioner’s
4

claims

under

the

deferential

standard set out in the Anti-Terrorism and Effective Death Penalty
Act (“AEDPA”). Rec. Doc. 30 at 22. Under this standard of review,
the Magistrate Judge found that all of Petitioner’s claims that
were rejected by the state court on the merits are insufficient to
entitle Petitioner to habeas relief. Rec. Doc. 30 at 25.
Federal Courts review objections to portions of a Magistrate
Judge’s

report

and

recommendation

de

novo.

Fed.

R.

Civ.

P.

72(b)(3). Claims filed pursuant to 28 U.S.C. § 2254 are governed
by the Antiterrorism and Effective Death Penalty Act (AEDPA). Boyer
v. Vannoy, 863 F.3d 428, 440 (5th Cir. 2017); see also Woodford v.
Garceau, 538 U.S. 202, 205 (2003). Under AEDPA, a federal court
may not grant habeas relief unless the state court’s adjunction:
(1) was “based on an unreasonable determination of the facts in
light of the evidence presented in the State court proceeding;”
or (2) resolved a question of law “contrary to, or involved an
unreasonable application of, clearly established federal law, as
determined by the Supreme Court of the United States.” Vannoy, 863
F.3d at 441; 28 U.S.C. § 2254(d).
Petitioner’s insufficiency of the evidence claim borders on
frivolity
Petitioner

when

compared

“repeatedly

to

the

trial

stabb[ed]”

the

record.

The

victim

after

fact

that

forcibly

ramming her car off road was sufficient evidence to prove beyond
a reasonable doubt that Petitioner specifically intended to kill
her. The Magistrate Judge correctly concluded that the state’s
5

witnesses established all the requisite elements of attempted
manslaughter. Id. at 27. Furthermore, any claim that the state’s
witnesses lied is beyond the relief a federal habeas court can
render because the court reviews issues of constitutional law and
does not review issues of state evidence law. See generally Schlup
v. Delo, 513 U.S. 298, 330 (1995); Santellan v. Cockrell, 271 F.3d
190, 193 (5th Cir. 2001).

Similarly, Petitioner’s “other crimes” evidence claim does
not merit review under state evidence law. Rec. Doc. 30 at 28-29.
Moreover, the overwhelming evidence of guilt here negates any
possibility that the guilty verdict was significantly influenced
by or resulted from “other crimes” evidence. See Little v. Johnson,
162 F.3d 855, 862 (5th Cir. 1998).
Further, the state court’s denial of a mistrial did not
violate any of Petitioner’s federal constitutional rights. Rec.
Doc. 30 at 31. Petitioner did not get an unfair trial because of
an improper comment by a witness about evidence of another crime.
The record shows that the comment was a fleeting remark by a
witness, never used or highlighted, and had no impact on the
conviction given the overwhelming evidence of guilt. See Lucas v.
Johnson, 132 F.3d 1069, 1079 (5th Cir. 1998).
The Magistrate Judge addressed Petitioner’s 24-hour delay/
immediate sentencing claim, correctly finding that the claim did
not concern a federal constitutional violation. See Rec. Doc. 30
6

at 31. That claim is again based on state law and not cognizable
on federal habeas review. See Engle v. Isaac, 456 U.S. 107, 119
(1983); Farinas v. La. Dept. of Corr., No. 14-1272, 2015 WL 430121,
at *9-10 (E.D. La. Feb. 2, 2015).
Further, Petitioner does not satisfy his burden of proof with
regards to rambling and vague claims of ineffective assistance of
counsel. See Miller v. Johnson, 200 F.3d 274, 282 (5th Cir. 2000).
For example, Petitioner did not show the benefit of an additional
investigation that counsel should have allegedly performed. See
Moawad v. Anderson, 143 F.3d 942, 948 (5th Cir. 1998). Petitioner
also failed to show he sustained prejudice from counsel’s failure
to pursue appellate review of a motion for mistrial. The claims of
ineffective counsel for appellate and supervisory review did not
warrant habeas relief. See Rec. Doc. 30 at 37; Bolton v. Cain, No.
13-4572, 2014 WL 432943, at *20 (E. D. La. Feb. 4, 2014.
Petitioner
reference

the

did

not

federal

factually

support,

constitutional

right

nor

specifically

asserted

in,

his

remaining claims that were rejected by the state courts. 1 For
instance, Petitioner contends the transcripts are false but does
not explain how or why they are incorrect or give rise to a federal
constitutional violation. See 28 U.S.C. § 2254. AEDPA requires

1

Sequestration Motion claim; Double Jeopardy claim; Perjury claim; Bill of
Information; Illegal Multiple Bill of Information; False Transcript;
Fabricating; Motion to Suppress; Equal Protection Clause; and Without Holding
[sic] Evidence.
7

deference to the state courts’ rejection of those claims on the
merits.
Lastly, the Magistrate Judge examined the remaining claims,
which were not fully asserted in state court. The Magistrate Judge
correctly

found

those

claims

to

be

unexhausted

and

hence

procedurally barred habeas claims. Rec. Doc. 30 at 40-41. For
instance, Petitioner did not exhaust an independent claim of
ineffective counsel using state collateral review for his appellate
counselor. Id. at 43. Neither a claim for ineffective assistance
of appellate counsel nor the absence of post-conviction counsel
are grounds to hinder Petitioner’s unexhausted claims from being
procedurally barred. Petitioner has not shown a miscarriage of
justice from procedurally barring his unexhausted claims because
overwhelming evidence of his guilt was presented at trial and
Petitioner submitted no new evidence sufficient to establish his
innocence. Id.
New Orleans, Louisiana this 4th day of December 2017.

___________________________________
SENIOR UNITED STATES DISTRICT JUDGE

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