Diggins v. Vannoy et al
Filing
18
ORDER ADOPTING 16 REPORT AND RECOMMENDATIONS: IT IS ORDERED that petitioner's objections are OVERRULED and the Report and Recommendation are ADOPTED as the opinion of the Court; and It IS FURTHER ORDERED the petition for issuance of a writ of habeas corpus is DISMISSED WITH PREJUDICE. Signed by Judge Ivan L.R. Lemelle on 7/30/2019.(jls)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
ROBERT DIGGINS
CIVIL ACTION
VERSUS
NO.
DARREL VANNOY, WARDEN
SECTION: “B”(5)
17-3416
ORDER AND REASONS
Before
the
Court
are
the
Magistrate
Judge’s
Report
and
Recommendation to dismiss Robert Diggins’s (“Petitioner”) petition
for habeas corpus relief (Rec. Doc. 16) and petitioner’s objections
to the Report and Recommendation (Rec. Doc. 17). For assigned
reasons below,
IT IS ORDERED that petitioner’s objections are OVERRULED and
the Report and Recommendation are ADOPTED as the opinion of the
Court; and
It IS FURTHER ORDERED the petition for issuance of a writ of
habeas corpus is DISMISSED WITH PREJUDICE.
Factual and Procedural Background
Petitioner is a state prisoner incarcerated at the Louisiana
State Penitentiary in Angola, Louisiana. See Rec. Doc. 16 at 1. On
May 11, 2010, a jury found him guilty of attempted second-degree
murder. See id. According to the record, petitioner shot Daniel
Leban (“Leban”) in an attempt to regain access to his truck located
inside A.J. Messina’s (“Messina”) auto shop. See Rec. Doc. 16 at
5-6. Petitioner became a suspect based on information gathered
from Leban, Messina, and a FEMA letter bearing petitioner’s name
found in Messina’s auto shop. See id. Leban subsequently identified
petitioner in a photographic lineup. See id. Dr. Mark Dominguez
(“Dr. Dominguez”), the trauma surgeon attending to Leban, informed
officers
that
Leban
was
alert,
responsive,
and
had
not
been
administered any medication at the time of the identification. See
id.
On May 18, 2011 after previously being found a fourth-felony
offender,
the
trial
court
sentenced
petitioner
to
life
imprisonment. See id. at 2. On October 23, 2013, the Louisiana
Fourth
Circuit
Court
of
Appeal
affirmed
the
conviction
and
sentence. See id. On May 23, 2014, the Louisiana Supreme Court
denied petitioner’s application for writ of certiorari. See id. at
2-3.
On or about July 20, 2015 petitioner submitted an application
for post-conviction relief to the state district court. See id. at
3.
On
August
26,
2015,
the
state
district
court
denied
the
application. See id. On October 19, 2015, the Louisiana Fourth
Circuit
Court
of
Appeal
denied
a
related
supervisory
writ
application. See id. On April 7, 2017, the Louisiana Supreme Court
denied relief. See id.
On April 12, 2017, petitioner filed the instant federal
application for habeas relief alleging that: (1) the trial court
erred in denying his motion to suppress evidence obtained in the
2
warrantless
search
of
his
exculpatory
photographic
vehicle;
evidence
(2)
in
the
State
violation
of
suppressed
Brady
v.
Maryland; (3) he was denied a fair trial based on prejudicial
comments by the court, infringement on his right to present a
defense, and biased hearsay rulings; (4) the trial court erred in
allowing
improper
comments
by
the
prosecutor
during
closing
argument; (5) the life sentence was excessive; and (6) his counsel
was ineffective because he provoked the trial court’s prejudicial
rulings, failed to file a motion for new trial, failed to object
to jury charges, and failed to adequately prepare for the multiple
bill hearing. See id. at 3-4. On October 2, 2017, the respondent
filed a response to the habeas petition. See Rec. Doc. 13. On June
19, 2018, the Magistrate Judge issued a Report and Recommendation.
See Rec. Doc. 16. On July 6, 2018, petitioner filed objections to
the Report and Recommendation. See Rec. Doc. 17.
MAGISTRATE JUDGE’S REPORT AND RECOMMENDATIONS
The Magistrate Judge recommended that petitioner’s petition
for habeas corpus relief be dismissed with prejudice. See Rec.
Doc. 16 at 1. The Report deemed petitioner’s motion to suppress
claim procedurally barred and found that petitioner failed to
establish judicial bias or substantial prejudice in his claims
concerning allegedly prejudicial comments and evidentiary rulings.
See id. at 6-11, 20-43. The Report concluded that petitioner’s
claims
of
Brady
violations,
improper
3
closing
arguments,
and
ineffective assistance of counsel did not establish the state
court’s decision was contrary to or involved an unreasonable
application of federal law. See id. at 43-70. The Report further
found that petitioner’s life sentence was not contrary to or
involved an unreasonable application of federal law. See id. at
57-60.
LAW AND FINDINGS
A. STANDARD OF REVIEW
Federal habeas corpus proceedings are subject to the rules
prescribed by the Antiterrorism and Effective Death Penalty Act
(“AEDPA”). See 28 U.S.C. §2254; see also Poree v. Collins, 866
F.3d 235, 245 (5th Cir. 2017). For pure questions of fact, factual
findings
are
presumed
to
be
correct.
See
§
2254(e)(1).
The
applicant has the burden of rebutting this presumption by clear
and convincing evidence. See id. However, a habeas writ may be
granted if the claim’s adjudication resulted in a decision that
was based on an unreasonable determination of facts in light of
the evidence presented. See § 2254(d)(2); see also Hankton v.
Boutte, 2018 U.S. Dist. LEXIS 126899 *1, *10 (E.D. La June 29,
2018).
For pure questions of law and mixed questions of law and fact,
state court determinations receive deference unless the decision
was contrary to or involved an unreasonable application of federal
law. See § 2254(d)(1); see also Hill, 210 F.3d at 485. A state
4
court decision is contrary to federal law if: (1) it applies a
rule different from the governing law set forth in Supreme Court
cases, or (2) it decides a case differently than the Supreme Court
when there are “materially indistinguishable facts.” See Poree,
866 F.3d at 246; see also Wooten v. Thaler, 598 F.3d 215, 218 (5th
Cir.
2010).
A
state
court
decision
involves
an
unreasonable
application of federal law when it applies a correct legal rule
unreasonably to the facts of the case. See White v. Woodall, 572
U.S. 415, 425 (2014). An unreasonable application of federal law
must be objectively unreasonable; clear error will not suffice.
See Boyer v. Vannoy, 863 F.3d 428, 453 (5th Cir. 2017)(“The
question under AEDPA is not whether a federal court believes a
state
court’s
determination
determination
was
was
incorrect
unreasonable-a
but
whether
substantially
that
higher
threshold.”).
A district court reviewing a magistrate judge’s report and
recommendation may accept all sections of the report not objected
to as long as those sections are not clearly erroneous. See FED.
R. CIV. P. 72(b); see also Gilker v. Cain, 2006 WL 1985969 (E.D.
La. May 30, 2006). However, de novo review applies to “specific,
written objections” of a magistrate’s report made within 10 days
after being served with a copy of the report. See 28 U.S.C. §
636(b)(1)(c); see also FED. R. CIV. P. 72(b). A district court may
then “accept, reject, or modify the recommended decision, receive
5
further evidence, or recommit the matter to the magistrate judge
with instructions.” See FED. R. CIV. P. 72(b).
B. PROCEDURAL DEFAULT (MOTION TO SUPPRESS CLAIM)
A question of federal law decided by a state court that rests
on state grounds both independent of the federal claim and adequate
to support that judgement will not be reviewed. See Coleman v.
Thompson, 501 U.S. 722, 731-32 (1991); see also Glover v. Cain,
128 F.3d 900, 902 (5th Cir. 1997). A procedural restriction is
independent if the state court’s judgement “clearly and expressly”
indicates that it is independent of federal law and rests solely
on a state procedural bar. See Amos v. Scott, 61 F.3d 333, 338
(5th Cir. 1995). To be adequate, the state procedural rule must be
strictly or regularly followed and evenhandedly applied to the
majority
of
Louisiana’s
similar
cases.
See
Glover,
contemporaneous-objection
128
rule
F.3d
has
at
long
902.
been
recognized as an independent and adequate state procedural ground
sufficient to bar federal review. See Duncan v. Cain, 278 F.3d
537, 541 (5th Cir. 2002) (citing Wainwright v. Sykes, 433 U.S. 72,
87-88
(1997))(“It
is
well-settled
that
the
contemporaneous-
objection rule is an independent and adequate state procedural
ground.”).
In order to overcome procedural default, a petitioner must
prove
cause
miscarriage
for
of
the
default
justice.
See
or
Amos,
6
demonstrate
a
61
339.
F.3d
at
fundamental
Cause
is
established by a petitioner demonstrating some objective factor
external to the defense impeded efforts to comply with the state
court’s procedural rule. See Murray v. Carrier, 477 U.S. 478, 488
(1986). Although cause can be demonstrated by proving ineffective
assistance of counsel, a petitioner must also show actual prejudice
to overcome the procedural bar. See id; see also United States v.
Guerra, 94 F.3d 989, 994 (5th Cir. 1996). “The movant makes this
showing where he demonstrates that, but for the error, he might
not have been convicted.” Guerra, 94 F.3d at 994. A fundamental
miscarriage of justice is established by a petitioner providing
evidence
that
would
support
a
“colorable
showing
of
factual
innocence.” See Kuhlmann v. Wilson, 477 U.S. 436, 545 (1986).
Louisiana’s contemporaneous-objection rule bars the Court
from federal review on petitioner’s motion to suppress claim. A
new basis or ground for a motion to suppress cannot be articulated
for the first time on appeal. See Richardson v. Deville, No. CV
17-10194, 2019 WL 1903291, at *5 (E.D. La. Apr. 29, 2019). Thus,
the
state
court’s
reliance
upon
Louisiana
Code
of
Criminal
Procedure Articles 703(F) and 841(A) is both independent and
adequate to support its judgement. Petitioner failed to properly
file a motion to suppress or lodge an objection when the evidence
was admitted at trial. See Rec. Doc. 16 at 7.
Further,
petitioner’s
attempt
to
show
cause
by
proving
ineffective assistance of counsel need not be addressed because
7
this Court finds petitioner has not been prejudiced. Where a
petitioner fails to demonstrate prejudice, a court may ignore any
cause arguments. See United States v. Shaid, 937 F.2d 228, 233-34
(5th Cir. 1991). Given the testimony of Leban and the investigating
officers,
as
well
as
Leban’s
photographic
identification
of
petitioner, petitioner fails to demonstrate but for the inclusion
of the FEMA letter he might not have been convicted.
Moreover, petitioner fails to prove a fundamental miscarriage
of justice. Petitioners must show in light of all the evidence
admitted that the trier of fact would have entertained a reasonable
doubt of guilt. See Kuhlmann, supra at 444. Here, petitioner’s
objection provides no additional evidence of his actual innocence.
See Rec. Doc. 17 at 1-8. Thus, petitioner fails to meet his
evidentiary burden.
C. BRADY CLAIM
Petitioner fails to demonstrate how the booking photographs
depicting him with dreadlocks were material pursuant to Brady. See
Rec. Doc. 17 at 8-13. Under AEDPA, a federal court does not decide
de novo whether a state prisoner has sufficiently proven a Brady
violation. See Yarborough v. Alvarado, 541 U.S. 652, 665 (2004);
see also Neal v. Puckett, 286 F.3d 230, 236 (5th Cir. 2002).
Rather, a federal court decides whether the state court’s Brady
determination
was
contrary
to
or
involved
an
unreasonable
application of clearly established federal law. See § 2254(d)(1);
8
see also Dickerson v. Quarterman, 462 F.3d 470, 477-78 (5th Cir.
2004). Under Brady, suppression of evidence favorable to the
accused violates due process when the evidence is material either
to guilt or punishment. See Brady v. Maryland, 373 U.S. 83, 87
(1963). Evidence is material where there exists a reasonable
probability that had it been disclosed the result at trial would
have been different. See Banks v. Dretke, 540 U.S. 668, 691 (2004).
“A reasonable probability is a probability sufficient to undermine
confidence in the outcome.” United States v. Bagley, 473 U.S. 667,
682 (1985) (internal quotations omitted)). Alleging a speculative
outcome is insufficient. See Dickson v. Quarterman, 462 F.3d 470,
478 (5th Cir. 2006). Materiality considers whether the allegedly
favorable evidence can reasonably be seen as putting the whole
case in such a different light as to undermine confidence in the
verdict. See Strickler v. Greene, 527 U.S. 263, 290 (1999); see
also Carraby v. Cain, Civ. Action No. 13-3268, 2015 WL 5734378, at
*8-9 (E.D. La. Sep. 30, 2015)(finding the mere fact undisclosed
evidence might have been helpful does not render it material); Cf.
Smith v. Cain, 565 U.S. 73 (2012)(finding materiality on a Brady
claim where a key witness’s testimony was the only evidence linking
the defendant to the crime).
The record indicates that the State’s sealed file contained
photographs taken close to the time of the incident that depict
petitioner with hair as described by Leban. See Rec. Doc. 16 at
9
18. However, the State planned to offer a December 2007 driver’s
license photo into evidence on rebuttal had defense introduced the
booking photographs. See id. at 18. Further, Leban testified that
he
was
certain
the
shooter
was
petitioner
and
immediately
identified him out of a photographic array shortly after the
incident. See id. at 18-19. Given the totality of overwhelming
other evidence against petitioner, it is not reasonable to assume
that the jury would have reached a different verdict. See United
States v. Agurs, 427 U.S. 97, 109-10 (1976) (“The mere possibility
that an item of undisclosed information might have helped . . .
does not establish ‘materiality’ in the constitutional sense.”)
Accordingly, the state court’s denial of this claim has not been
shown contrary to or to have involved an unreasonable application
of clearly established federal law.
D. STATE COURT PROCEEDINGS
1. JUDICIAL BIAS CLAIM
Petitioner sets forth twenty allegedly prejudicial comments
and instances of judicial bias by the trial judge. See Rec. Doc.
17 at 16-19. The Court finds none of the instances prove either
actual or presumptive bias by the trial judge. Defendants in the
American judicial system have the right to a fair trial, not a
perfect one. See United States v. Bermea, 30 F.3d 1539, 1569 (5th
Cir. 1994)(stating “[the court’s] role is to determine whether the
judge’s behavior was so prejudicial that it denied the defendant
10
a fair, as opposed to a perfect, trial.”) Under AEDPA, bias is a
difficult claim to sustain. See Aetna Life Ins. Co. v. Lavoie, 475
U.S. 813, 822 (1986) (acknowledging that the degree or kind of
interest sufficient to disqualify a judge from sitting cannot be
defined with precision). A judge’s actions or comments rise to the
level of a constitutional violation only when they amount to an
intervention that could lead a jury to a predisposition of guilt.
See United States v. Bermea, 30 F.3d 1539, 1569 (5th Cir. 1994)
(noting
the
judge’s
intervention
in
the
proceedings
must
be
quantitatively and qualitatively substantial to meet this test).
In order to prove a due process violation, a petitioner must
establish that a genuine question exists concerning a judge’s
impartiality. See Bigby v. Dretke, 402 F.3d 551, 559 (5th Cir.
2005). Part of a judge’s duty is to moderate and ensure that a
trial by jury is properly governed. See Quercia v. United States,
289,
U.S.
466,
469
(2008).
Importantly,
this
duty
cannot
be
discharged by remaining inert. See id., see also Herron v. Southern
Pacific
Co.,
283
U.S.
91,
95
(1931).
Here,
the
majority
of
petitioner’s complaints deal with the trial judge’s exercise of
control over the questioning of witnesses and presentation of
evidence. See Rec. Doc. No. 17 at 17-18. However, judicial rulings
alone
almost
never
constitute
a
valid
basis
for
a
bias
or
partiality argument. See Liteky v. United States, 510 U.S. 540,
555 (1994). Petitioner fails to demonstrate how the trial judge’s
11
exercise and control of the nature of the questions presented
established a genuine question of impartiality. The Magistrate
Judge’s findings here are clearly supported by the factual record
and law.
The remainder of petitioner’s contentions concern the trial
judge’s response to defense counsel’s zealous advocacy. See Rec.
Doc. 17 at 17-18. In order to give rise to a constitutional
violation, heated exchanges between judges and counsel must be so
egregious as to taint the whole proceeding. See Patterson v. Cain,
Civ. Action No. 10-4587, 2011 WL 7962615, at *12-13 (E.D. La. Oct.
14, 2011)(finding testy exchanges between judges and counsel when
taken in context were not so egregious as to taint the proceedings,
prejudice the jury, or in any way render petitioner’s trial unfair,
or
his
resulting
unfavorable
conviction
evidentiary
unconstitutional).
rulings
by
the
trial
Here,
despite
court,
defense
counsel continued to object and even became argumentative. See
Rec. Doc. 16 at 24-25. The exchanges, when viewed in the context
of the entire trial, do not support a finding that the jury was
led to a predisposition of guilt. Accordingly, the claim is without
merit based on our review of the trial record, the Magistrate
Judge’s review, and applicable law.
2. EVIDENTIARY & HEARSAY CLAIMS
Petitioner’s
argument
concerning
the
trial
judge’s
evidentiary and hearsay rulings is unconvincing. See generally Rec
12
Doc.
17
at
20-26.
The
question
of
whether
evidence
is
constitutionally admitted or excluded is a mixed question of law
and fact. See Livingston v. Johnson, 107 F.3d 297, 309 (5th Cir.),
cert. denied, 522 U.S. 880 (1997). State court evidentiary errors
warrant federal habeas relief only if the error “is of such a
magnitude as to constitute a denial of fundamental fairness under
the due process clause.” See Skillern v. Estelle, 720 F.2d 839,
852
(5th
Cir.
1983).
The
erroneous
exclusion
of
evidence
is
fundamentally unfair if the evidence was material in the sense it
was “crucial, critical, and highly significant.” See Poretto v.
Stalder, 834 F.2d 461, 465 (5th Cir. 1987)(citing Skillern, 720
F.2d at 852)). A conclusion of constitutional error will not be
afforded relief unless the error had a substantial and injurious
effect
or
influence
on
the
jury’s
verdict.
See
Brecht
v.
Abrahamson, 507 U.S. 619, 637 (1993).
Federal courts do not sit as super tribunals to review errors
under state law. See Wilkerson v. Whitley, F.3d 64, 67 (5th Cir.
1992). The proper issue for review is whether the alleged improper
exclusion
or
admission
of
evidence
constituted
a
denial
of
fundamental fairness under federal law. See Little, 162 F.3d at
862.
Therefore,
any
argument
relating
to
the
state
court’s
application of its state laws, standing alone, is not warranted.
To the extent petitioner’s argument concerns a denial of
fundamental fairness, petitioner fails to demonstrate how any of
13
the excluded evidence was material. See generally Rec. Doc. 17 at
20-26. Even if a federal court assumes a trial court committed an
evidentiary error, a habeas writ will not be granted unless the
error is classified as a significant one in light of all the other
evidence. See Andrade v. McCotter, 805 F.2d 1190, 1193 (5th Cir.
1986)(“[a]ssuming error in the evidentiary ruling permitting the
introduction
of
the
[evidence],
we
are
persuaded
beyond
peradventure that . . . the error did not carry such prejudice as
would warrant the issuance of the Great Writ.”). Here, petitioner
was still able to obtain details about the crime scene and refute
Leban’s account by cross examining other on-scene officer who
conducted the investigation. See Rec. Doc. 16 at 31. The record
also shows that defense counsel was not prevented from eliciting
testimony from the first officer on the scene that no description
of the perpetrator was ever given to her. See id. The jury was
also
given
the
opportunity
to
hear
the
911
call
and
Oliver
Harrison’s different account of events. See id. Therefore, the
additional testimony or evidence would not have been material to
the outcome of the case.
Furthermore, the admitted evidence that petitioner contests
only had the effect of reiterating Leban’s testimony or other
evidence already admitted in the trial. See Rec. Doc. 17 at 4243. Thus, the Court finds no basis for habeas relief considering
14
more
injurious
evidence
implicating
petitioner
was
admitted
without objection.
3. PROSECUTORIAL MISCONDUCT CLAIM
Petitioner’s contention that his due process guarantee of a
fair trial was violated by the prosecutor’s closing remarks is
unpersuasive. See Rec. Doc. 17 at 27-31. Improper jury argument
does not present a claim of constitutional magnitude unless it is
so
prejudicial
that
the
state
court
trial
was
rendered
fundamentally unfair. See Jones v. Butler, 864 F.2d 348, 356 (5th
Cir. 1998) (citing Felde v. Blackburn, 795 F.2d 400, 403 (5th Cir.
1986)). A petitioner must prove the misconduct was persistent and
pronounced, or that the evidence of guilt was so insubstantial
that the conviction would not have occurred but for the improper
remarks. See id.
The remarks must be evaluated in the context of
the entire trial. See Greer v. Miller, 483 U.S. 756, 765-66 (1987).
Petitioner misconstrues the prosecutor’s comments that he was
hiding something. See id. at 27. The comments were in response to
defense counsel’s closing argument regarding the absence of a
witness. See Rec. Doc. 16 at 44-50 (defense counsel stating, “[a]nd
you don’t have a single [] officer who would come up and speak
truth about what happened . . . because it doesn’t help them in
their case . . . .”).
The
instances
involving
the
prosecutor’s
description
of
defense counsel’s arguments or tactics as a “game”, “pounding the
15
table”, and “wasting your time” also do not warrant relief. See
Rec. Doc. 17 at 27-28. Comments during rebuttal expressing a
prosecutor’s personal resentment of statements made by a defense
counsel rarely constitute reversible error. See Jones, supra at
356.
A
prosecutor’s
remarks
must
infect
a
trial
with
such
unfairness as to make the resulting conviction a denial of due
process. See Darden v. Wainwright, 477 U.S. 168, 179 (2009). The
touchstone of this due process analysis is the fairness of the
trial, not the culpability of the prosecutor. See Smith v. Philips,
455 U.S. 209, 219 (1982). Because such comments must be considered
against the overwhelming evidence against petitioner, the Court
finds such statements did not render the trial fundamentally
unfair.
Petitioner’s argument that the state improperly relied on
facts not in evidence is also unpersuasive. See Rec. Doc. No. 17
at 28. The purpose of closing arguments is to assist the jury in
analyzing and evaluating evidence adduced at trial. See United
States v. Washington, 44 F.3d 1271, 1279 (5th Cir. 1995). A
prosecutor may make reasonable inferences and conclusions drawn
from that evidence. See United State v. Mendoza, 522 F.2d 482, 491
(5th Cir. 2008). Here, the comment on Leban being pushed out of a
moving car related to Dr. Dominguez’s assessment that he did not
find any injuries consistent with the defense’s theory. See Rec.
Doc.
16
at
52.
Furthermore,
given
16
the
totality
of
Leban’s
testimony, the remark that “the other three bullets could have
severed the spine of three other people” was not so substantial as
to contribute to the verdict. This remark was isolated, accompanied
by the trial judge’s reminder to the jury to rely on the evidence,
and
the
prosecutor’s
comment
that
the
jury
should
disregard
anything he said that was untrue. See Rec. Doc. 16 at 51-53. Thus,
the comment does not warrant habeas relief.
The prosecutor’s “truth hurts” comment also does not rise to
the level required for a finding of a denial of due process. See
Rec. Doc. 17 at 28. The question before the Court is whether the
comment rendered the trial fundamentally unfair. See Jones, supra
at 356. Here, any potential prejudice was mitigated by the trial
court’s specific instructions to the jury to rely on the evidence.
See Rec. Doc. 16 at 54. Further, the Supreme Court has already
held closing arguments considerably more inflammatory than the
instant fail to warrant habeas relief. See Darden, 477 U.S. at 180
(prosecutor described the defendant as an “animal” and stated “I
wish I could see [the defendant] with no face, blown away by a
shotgun). Given noted appellate findings where more inflammatory
remarks have failed to establish a violation of due process, the
Court finds petitioner’s claim insubstantial in comparison to that
precedent.
Furthermore, petitioner’s contention regarding the
prosecutor’s use of the 911 recording is not cognizable for
17
review. See Rec. Doc. 17 at 27. It is not within the province of
a federal habeas court to reexamine the admissibility of a 911
tape on pure state law grounds. See Estelle v. McGuire, 502 U.S.
62, 67-68 (1991) (emphasizing federal habeas relief does not lie
for errors of state law). Moreover, prosecutors are generally
permitted to comment on and emphasize portions of the evidence
in closing arguments. See Bowling v. Parker, 344 F.3d 487, 512
(6th Cir. 2003). In commenting on properly admitted evidence, a
prosecutor may discuss reasonable inferences or conclusions
drawn from that evidence. See Mendoza, 522 F.3d at 491. Here,
the State’s emphasis on the 911 recording only emphasized what
was already known by the jury. The jury already heard Leban’s
account of the events leading up to the shooting and the 911
recording in its entirety. See Rec. Doc. 17 at 55-56. Given the
overwhelming evidence and the court’s instruction to rely on the
evidence, it cannot be concluded that the use of the 911
recording had a substantial or influential effect on the jury’s
determination. See Cotton v. Cockrell, 343 F.3d 746, 752 (5th
Cir. 2003); see also Nethery v. Collins, 993 F.2d 1154, 1159
(5th Cir. 1993) (holding overwhelming evidence of guilt and
presence of curative instruction rendered harmless an
impermissible comment by prosecution). Petitioner’s claim does
not warrant habeas relief.
E. INEFFECTIVE ASSISTANCE OF COUNSEL CLAIM
18
Petitioner contends counsel was ineffective because of: (1)
his behavior during the sentencing hearing, and (2) his failure to
object to portions of the jury charges. See Rec. Doc. 17 33-40.
Ineffective assistance of counsel claims present a mixed question
of law and fact. See Richards v. Quarter, 566 F.3d 533, 561 (5th
Cir. 2009). Under Strickland, attorneys are entitled to a strong
presumption that their conduct falls within the broad range of
reasonable professional conduct. See Strickland v. Washington, 466
U.S. 668, 689 (1984). A counsel’s challenged conduct must be judged
based on the reasonableness of his actions in light of all the
circumstances. See Lockhart v. Fretwell, 506 U.S. 364, 371 (1993).
Petitioners
must
prove
deficient
performance
and
prejudice
therefrom. See id. at 686. Performance is deficient if it falls
below an objective standard of reasonableness. See Little v.
Johnson, 162 F.3d 855, 860 (5th Cir. 1998). Prejudice is proven
when there is a reasonable probability that but for counsel’s
unprofessional errors, the result of the proceeding would have
been
different.
See
Strickland,
466
U.S.
at
494.
Failure
to
demonstrate a sufficient showing of either of these two prongs
allows a court to dispose of the ineffective assistance of counsel
claim without addressing the other prong. See id. at 697.
The Supreme Court has held that under AEDPA, a court must be
“doubly deferential in reviewing ineffective assistance of counsel
claims.” See Burt v. Titlow, 134 S.Ct. 10, 13 (2013). Zealous
19
advocacy does not necessarily equate to ineffective assistance of
counsel when the evidence against a defendant is overwhelming. See
Strickland,
466
U.S.
at
680
(stating
a
counsel’s
strategic
decisions must be assed in light of the time, not in hindsight).
Here,
the
record
indicates
petitioner’s
counsel
zealously
advocated on his behalf. See Rec. Doc. 16 at 64. Although defense’s
advocacy elicited some negative feedback by the trial judge, the
Court does not find but for these interactions the result of the
trial would have been different. Thus, petitioner fails to meet
the bar set by Strickland.
Petitioner’s claims that defense counsel failed to file a
motion for a new trial and prepare for the multiple bill hearing
are unconvincing. See Rec. Doc. 17 at 35-36. Regarding the motion
for new trial, a defense counsel is not required to make futile
motions or objections. See Koch v. Puckett, 907 F.2d 524, 527 (5th
Cir. 1990)(finding a defense counsel was not required to make
futile
motions
or
objections
where
the
issue
was
already
unsuccessfully objected and the petitioner failed to demonstrate
any other legitimate grounds). Here, the Louisiana Supreme Court
already found the allegedly suppressed evidence was not Brady
material. See Rec. Doc. 17 at 65. Defense counsel had no chance of
having
a
motion
for
a
new
trial
granted
based
on
allegedly
suppressed exculpatory evidence the state’s highest court had
already found was not Brady material. Further, the interlocutory
20
ruling on the Brady issue was appealable and appellate counsel
included the preserved issue on direct appeal, which was denied.
See Rec. Doc. No. 16 at 61, 65. Because petitioner provides no
additional reason as to why the motion may have been granted,
petitioner’s argument fails.
Regarding the multiple bill hearing, the record indicates
defense counsel reviewed the State’s multiple bill and required
the State to prove the necessary elements for the bill. See Rec.
Doc. 16 at 66. The record also indicates that defense counsel
thoroughly
cross-examined
the
State’s
witness,
and
afterwards
informed the trial court he had no legal basis to object. See id.
Thus, petitioner’s assertion is mistaken. Further, Petitioner’s
use of United States v. Cronic, 466 U.S. 648 (1984) is incorrect.
Cronic deals with situations where “counsel is appointed so late
or is otherwise incompetent as to have been nonexistent.” See
Crochet v. Goodwin, Civ. Action No. 13-3106, 2014 WL 5093995, at
*5 (E.D. La. Oct. 8, 2014). As shown above, the Cronic case is
factually distinguishable from the instant record.
Lastly, petitioner’s claim that counsel was deficient for
failing to object to the trial judge’s use of “defendant” instead
of “accused” is also denied. See Rec. Doc. 17 at 36-4. The mere
use of an erroneous instruction to the jury under state law is not
a basis for federal habeas relief. See Estelle, 502 U.S. at 62.
Federal
habeas
courts
may
grant
21
relief
only
if
the
ailing
instruction infected the entire trial process. See id. at 72; see
also Cupp v. Naughten, 414 U.S. 141, 147 (1973) (noting it is well
established that a single jury instruction may not be judged in
isolation, but rather in the context of the overall charge). Here,
Petitioner admits that prior to the alleged erroneous instruction
the trial judge instructed the jury that he was entitled to a
presumption
of
innocence.
See
Rec.
Doc.
17
at
36.
Further,
according to its plain interpretation, defendant is defined as
“[a] person . . . accused in a criminal proceeding.” See DEFENDANT,
BLACK’S LAW DICTIONARY (11th Ed. 2019) (emphasis added). Accordingly,
petitioner fails to prove but for his counsel’s failure to object
to the instructions the jury would have had reasonable doubt
concerning his guilt.
F. EXCESSIVE SENTENCE CLAIM
Petitioner fails to show how his life sentence as a fourthfelony offender is constitutionally excessive. See Rec. Doc. 17
31-33. Excessive sentence claims present a question of law. See
Chatman v. Miller, Civ. Action No. 05-1481, 2005 WL 3588837, at *5
(E.D. La. Nov. 9, 2005). The Eighth Amendment does not require
strict proportionality between crime and sentence. See Ewing v.
California,
538
U.S.
11,
20
(2003).
Unless
grossly
disproportionate to the gravity of the offense, a sentence within
statutory limits will not be upset by a federal habeas court. See
Harmelin v. Michigan, 501 U.S. 957, 1001 (1991). Furthermore, the
22
Supreme Court has long recognized recidivism as a legitimate basis
for increased punishment. See Almendarez-Torres v. United States,
523 U.S. 224, 230 (1998).
Petitioner’s claim that the state court sentence is invalid
due to its noncompliance with state law procedural grounds is not
cognizable in the federal habeas context. See Butler v. Cain, 327
F. Appx. 455, 457 (5th Cir. 2009); see also Haynes v. Butler, 825
F.2s 921, 924 (5th Cir. 1987) (“. . . a state’s failure to follow
its own sentencing procedures is not reviewable by federal habeas).
To the extent petitioner contends his sentence constitutes
cruel and unusual punishment under the Eighth Amendment, the claim
fails on the merits. The grossly disproportionate principle only
applies to the “exceedingly rare” and “extreme” cases. See Lockyer
v. Andrade, 538 U.S. 63, 73 (2003); see also Rummel v. Estelle,
445 U.S. 263, 272 (1980). In fact, life sentences have been given
and upheld in far less egregious offenses than petitioner’s instant
offense. See, e.g., Harmelin v. Michigan, 502 U.S. 957, 1001
(1991)(upholding a life sentence without parole for a first time
offender convicted of possessing 672 grams of cocaine); Rummel,
455 U.S. at 271 (upholding a life sentence with possibility of
parole for the defendant’s third nonviolent felony conviction for
the crime of obtaining $120.75 by false pretenses); Olivier v.
Prince, 719 F. App’x 389 (5th Cir. 2018)(upholding sentence of 25
to life under three strikes law for felony grand theft of several
23
golf clubs). Considering petitioner’s prior felony convictions and
the seriousness of the instant matter, petitioner’s life sentence
under Louisiana’s multiple offender laws is not shown to be in
violation of the Eighth Amendment.
New Orleans, Louisiana this 30th day of July, 2019
____________________________________
SENIOR UNITED STATES DISTRICT JUDGE
24
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