Brown v. Tanner et al
Filing
19
ORDER AND REASONS ADOPTING 15 REPORT AND RECOMMENDATIONS: IT IS HEREBY ORDERED that Petitioner's objections are OVERRULED; IT IS FURTHER ORDERED that the Court ADOPTS the Magistrate Judge's recommendation and Petitioner Joe Brown's petition for issuance for a writ of habeas corpus pursuant to 28 U.S.C. 2254 is DENIED and DISMISSED WITH PREJUDICE. Signed by Chief Judge Nannette Jolivette Brown on 4/29/2019.(mmv)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
JOE BROWN
CIVIL ACTION
VERSUS
NO. 17-6332
ROBERT TANNER, WARDEN
SECTION “G”(4)
ORDER AND REASONS
Before the Court are Petitioner Joe Brown’s (“Petitioner”) objections to the Report and
Recommendation of the United States Magistrate Judge assigned to the case.1 Petitioner, a state
prisoner incarcerated in the B.B. “Sixty” Rayburn Correctional Center in Angie, Louisiana, filed
a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254.2 The Magistrate Judge
recommended that the petition be dismissed with prejudice on the merits.3 Petitioner objects to the
Magistrate Judge’s recommendation.4 After reviewing the petition, the State’s response, the
Magistrate Judge’s Report and Recommendation, Petitioner’s objections, the record, and the
applicable law, the Court will overrule Petitioner’s objections, adopt the Magistrate Judge’s
recommendation, and dismiss this action with prejudice.
1
Rec. Doc. 18.
2
Rec. Doc. 3.
3
Rec. Doc. 15.
4
Rec. Doc. 18.
I. Background
A.
Factual Background
On November 21, 2007, Petitioner was charged by Bill of Information in the 23rd Judicial
District Court for the Parish of St. James with three counts of armed robbery with a firearm.5 On
January 14, 2009, following a two-day jury trial, Petitioner was found guilty as charged on all
three counts.6 Petitioner subsequently filed a motion for a new trial,7 which was denied on January
11, 2010.8 The same day, the trial court sentenced Petitioner to a term of 60 years imprisonment
as to each count, to be served concurrently and without benefit of parole, probation, or suspension
of sentence.9 Petitioner subsequently filed a motion to reconsider the sentence, which the trial court
denied on March 8, 2010.10
On November 15, 2011, the Louisiana Fifth Circuit Court of Appeal affirmed Petitioner’s
convictions.11 However, the Louisiana Fifth Circuit found that the sentences were indeterminate
because the trial court did not specify whether the sentences were imposed pursuant to a firearm
enhancement and remanded the matter for resentencing.12 On December 12, 2011, the Louisiana
Fifth Circuit denied Petitioner’s request for rehearing.13
5
State Rec., Vol. I of VI, Bill of Information, Nov. 21, 2007.
6
State Rec., Vol. I of VI, Verdict, Jan. 14, 2009.
7
State Rec., Vol. I of VI, Motion for New Trial, Jun. 30, 2009.
8
State Rec., Vol. I of VI, Sentencing Minutes, Jan. 11, 2010.
9
Id.
10
State Rec., Vol. 1 of VI, Minute Entry, Mar. 8, 2010.
11
State v. Brown, 2011-KA-864 (La. App. 5 Cir. 11/15/11); 80 So. 3d 547.
12
Id.
13
Id.
2
On January 9, 2012, the trial court sentenced Petitioner to serve concurrent terms of 60
years imprisonment on each armed robbery count and to serve a concurrent term of five years
imprisonment on each count for the gun enhancement.14 The trial court ordered that the five-year
term would be served consecutive to the 60-year term, and all sentences were to be served without
benefit of parole, probation, or suspension of sentence.15
On April 20, 2012, the Louisiana Supreme Court denied Petitioner’s related writ
application without stated reasons.16
On October 23, 2012, Petitioner filed an application for post-conviction relief with the state
trial court.17 The trial court denied the application in part on May 22, 2015,18 and set a hearing on
Petitioner’s claim that he received ineffective assistance of counsel when his counsel allegedly
failed to inform him of a plea offer.19 The trial court conducted the hearing on July 13, 2015, but
ultimately denied Petitioner’s claim by a written order dated September 29, 2015.20 The Louisiana
Fifth Circuit denied Petitioner’s related writ application on December 11, 2015,21 and the
Louisiana Supreme Court also denied relief on May 12, 2017.22
14
State Rec., Vol. I of VI, Sentencing Minutes, Jan. 9, 2012.
15
Id.
16
State v. Brown, 2012-KO-27 (La. 4/20/12); 85 So. 3d 1268.
17
State Rec., Vol. IV of VI, Application for Post-Conviction Relief, Oct. 23, 2012.
18
State Rec., Vol. V of VI, Order Denying Application for Post-Conviction Relief In Part, May 22, 2015.
19
State Rec., Vol. V of VI, Order Setting Evidentiary Hearing, May 22, 2015.
20
State Rec., Vol. V of VI, Order Denying Application for Post-Conviction Relief, Sept. 29, 2015.
21
State v. Brown, 15-KW-673 (La. App. 5 Cir. 12/11/15); State Rec. Vol. V of VI.
22
State ex rel Brown v. State, 16-KH-0100 (La. 5/12/17); 219 So. 3d 321.
3
On July 17, 2017, Petitioner filed the instant federal habeas petition.23 In the petition,
Petitioner raises the following grounds for relief: (1) his trial counsel was ineffective for failing to
investigate the witnesses and victims before trial; (2) the trial court erred by restricting his postconviction evidentiary hearing to only one of his ineffective assistance of counsel claims regarding
the advice on a plea offer; (3) the trial court erred by denying him appointed counsel for the
evidentiary hearing; and (4) the trial court erred by denying him the right to subpoena witnesses
for the evidentiary hearing.24 On August 22, 2017, the State filed a response, arguing that three of
Petitioner’s claims were in procedural default.25 On September 12, 2017, Petitioner filed a reply
brief arguing that the procedural default should be excused because of his lack of knowledge and
good faith.26
B.
Report and Recommendation Findings
The Magistrate Judge recommended that this Court dismiss the petition with prejudice.27
First, the Magistrate Judge determined that the State’s procedural bar defense was unavailing.28
The Magistrate Judge noted that the Louisiana Supreme Court denied relief on Petitioner’s
ineffective assistance of counsel claim and indicated that Petitioner had no right to an evidentiary
hearing on his other claims.29 Therefore, because the Louisiana Supreme Court addressed the
23
Rec. Doc. 3.
24
Id.
25
Rec. Doc. 11.
26
Rec. Doc. 14.
27
Rec. Doc. 10.
28
Id. at 10.
29
Id.
4
merits of Petitioner’s claim, the Magistrate Judge found that the claims were not in procedural
default, and also proceeded to address the merits of Petitioner’s claims.30
The Magistrate Judge found no merit to Petitioner’s claim that his trial counsel was
ineffective for failing to interview witnesses and victims and subpoena a bartender to determine
how much the victims drank the night of the crime.31 The Magistrate Judge stated that Petitioner
had not shown what the investigation would have shown.32 Furthermore, the Magistrate Judge
noted that it was not clear what exculpatory or impeachment information subpoenaing the
bartender would have disclosed, especially since the victims were standing outside of the bar and
one victim had just driven up when Petitioner approached her.33 Additionally, the Magistrate Judge
noted that Petitioner had not specified what information his trial counsel could have obtained from
the bartender or victims that was not already available to the defense by some other means.34
Therefore, the Magistrate Judge found that Petitioner’s generalized claims remained unsupported
and conclusory, which was not sufficient to establish a deficiency in or prejudice from his
counsel’s performance.35 Accordingly, the Magistrate Judge determined that Petitioner had not
established that the state courts’ denial of relief was contrary to or an unreasonable application of
federal law.36
30
Id.
31
Id. at 15–17.
32
Id. at 15–16.
33
Id. at 16.
34
Id.
35
Id.
36
Id. at 17.
5
The Magistrate Judge also found that Petitioner was not entitled to relief on his claims that
the trial court erred by restricting his post-conviction evidentiary hearing to one of his ineffective
assistance of counsel claims about the plea deal, by denying him appointed counsel for the
evidentiary hearing, and by denying him the right to subpoena witnesses for the evidentiary
hearing.37 As an initial matter, the Magistrate Judge noted that the state record reflects that
Petitioner had appointed counsel during the evidentiary hearing.38 Alternatively, the Magistrate
Judge noted that it is a “longstanding rule that prisoners are not entitled to counsel during habeas
proceedings and thus cannot state a claim for ineffective assistance during those proceedings.”39
The Magistrate Judge also noted that it is well settled that “federal habeas corpus relief cannot be
granted to remedy errors which occurred in state post-conviction proceedings.”40 Accordingly, the
Magistrate Judge concluded that this Court is without authority under the AEDPA to consider or
address any procedural infirmity alleged to have occurred in Petitioner’s state court postconviction review.41
II. Objections
A.
Petitioner’s Objections
Petitioner objects to the Magistrate Judge’s Report and Recommendation.42 First,
Petitioner repeats his claims that the trial court erred by restricting his post-conviction evidentiary
37
Id. at 17–18.
38
Id. at 17.
39
Id. (quoting Cousin v. Lensing, 310 F.3d 843, 848 (5th Cir. 2002)).
40
Id. at 18 (citing Nichols v. Scott, 69 F.3d 1255, 1275 (5th Cir. 1995); Morris v. Cain, 186 F.3d 581, 585
n.6 (5th Cir. 1999); Hallmark v. Johnson, 118 F.3d 1073, 1080 (5th Cir. 1997)).
41
Id.
42
Rec. Doc. 18.
6
hearing to one of his ineffective assistance of counsel claims about the plea deal, and by denying
him the right to subpoena witnesses for the evidentiary hearing.43
Second, Petitioner contends that he received ineffective assistance of trial counsel.44
Petitioner asserts that the identity of the robber was a key issue at trial because none of the
witnesses could give a description of the perpetrator.45 Furthermore, Petitioner argues that his
counsel failed to subpoena the 911 tapes.46 Petitioner asserts that subpoenaing the tapes would
have revealed that no 911 call actually existed.47 Petitioner contends that the outcome of the trial
would have been different if his trial counsel had been prepared to challenge the prosecutor’s
statement that Petitioner was identified as the perpetrator during the 911 call.48
B.
State’s Opposition
The State of Louisiana did not file a brief in opposition to Petitioner’s objections despite
receiving electronic notice of the filing.
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. The District Judge “may accept, reject, or modify the
recommended disposition” of a Magistrate Judge on a dispositive matter.49 The District Judge must
43
Id. at 1.
44
Id.
45
Id.
46
Id.
47
Id. at 2, 4.
48
Id. at 4.
49
Fed. R. Civ. P. 72(b)(3); see also 28 U.S.C. § 636(b)(1).
7
“determine de novo any part of the [Report and Recommendation] that has been properly objected
to.”50 The District Court’s review is limited to plain error for parts of the report which are not
properly objected to.51
B.
Standard of Review Under the AEDPA
Following the enactment of the Antiterrorism and Effective Death Penalty Act of 1996
(“AEDPA”), the standard of review used to evaluate issues presented in habeas corpus petitions
was revised “to ensure that state-court convictions are given effect to the extent possible under
law.”52 For questions of fact, federal courts must defer to a state court’s findings unless they are
“based on an unreasonable determination of the facts in light of the evidence presented in the State
court proceeding.”53 A state court’s determinations on mixed questions of law and fact or pure
issues of law, on the other hand, are to be upheld unless they are “contrary to, or involve[ ] an
unreasonable application of, clearly established Federal law, as determined by the Supreme Court
of the United States.”54
Regarding this standard, the U.S. Court of Appeals for the Fifth Circuit further explains:
A state-court decision is contrary to clearly established precedent if the state court
applies a rule that contradicts the governing law set forth in the Supreme Court’s
cases. A state-court decision will also be contrary to clearly established precedent
if the state court confronts a set of facts that are materially indistinguishable from
a decision of the Supreme Court and nevertheless arrives at a result different from
Supreme Court precedent. A state-court decision involves an unreasonable
application of Supreme Court precedent if the state court identifies the correct
50
Fed. R. Civ. P. 72(b)(3).
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).
51
52
Bell v. Cone, 535 U.S. 685, 693 (2002).
53
28 U.S.C. § 2254(d)(2).
54
28 U.S.C. § 2254(d)(1).
8
governing legal rule from the Court’s cases but unreasonably applies it to the facts
of the particular state prisoner’s case.55
If Supreme Court case law “give[s] no clear answer to the question presented, let alone one in [the
petitioner’s] favor, ‘it cannot be said that the state court unreasonably applied clearly established
Federal law.’”56 Additionally, “unreasonable is not the same as erroneous or incorrect; an incorrect
application of the law by a state court will nonetheless be affirmed if it is not simultaneously
unreasonable.”57
IV. Law and Analysis
A.
Ineffective Assistance of Counsel Claim
Petitioner objects to the Magistrate Judge’s finding that Petitioner is not entitled to relief
on his ineffective assistance of counsel claims.58 Specifically, Petitioner argues that his trial
counsel performed ineffectively by failing to subpoena the tape of a 911 call where Petitioner was
allegedly identified as the perpetrator of the shooting.59 Petitioner asserts that subpoenaing the
tapes would have revealed that no 911 call actually existed.60 Therefore, the Court reviews this
issue de novo.61
To succeed on an ineffective assistance of counsel claim, a petitioner must demonstrate
both that counsel’s performance was deficient and that the deficient performance prejudiced his
55
Wooten v. Thaler, 598 F.3d 215, 218 (5th Cir. 2010) (citations and quotation marks omitted).
56
Wright v. Van Patten, 552 U.S. 120, 126 (2008) (quoting Carey v. Musladin, 549 U.S. 70, 77 (2006)).
57
Puckett v. Epps, 641 F.3d 657, 663 (5th Cir. 2011) (quotation marks omitted).
58
Rec. Doc. 18.
59
Id. at 2.
60
Id. at 2, 4.
61
Fed. R. Civ. P. 72(b)(3).
9
defense.62 If a court finds that a petitioner fails on either of these two prongs it may dispose of the
ineffective assistance claim without addressing the other prong.63 To satisfy the deficient
performance prong, a petitioner must overcome a strong presumption that the counsel’s conduct
falls within a wide range of reasonable representation.64 Petitioner must show that the conduct was
so egregious that it failed to meet the constitutional minimum guaranteed by the Sixth
Amendment.65 Courts addressing this prong of the test for ineffective counsel must consider the
reasonableness of counsel’s actions in light of all the circumstances.66 To prevail on the actual
prejudice prong, a petitioner “must show that there is a reasonable probability that, but for
counsel’s unprofessional errors, the result of the proceeding would have been different.”67 A
reasonable probability is “a probability sufficient to undermine confidence in the outcome.”68
In considering Petitioner’s claims on federal habeas corpus review that are repetitive of
claims already made to a state court, the central question “is not whether a federal court believes
the state court’s determination under Strickland was incorrect but whether [it] was unreasonable—
a substantially higher threshold.”69 In addition, “because the Strickland standard is a general
standard, a state court has even more latitude to reasonably determine that a defendant has not
62
Strickland v. Washington, 466 U.S. 668, 697 (1984).
63
Id. at 697.
64
See Crockett v. McCotter, 796 F.2d 787, 791 (5th Cir. 1986); Mattheson v. King, 751 F.2d 1432, 1441 (5th
Cir. 1985).
65
See Styron v. Johnson, 262 F.3d 438, 450 (5th Cir. 2001).
66
See Strickland, 466 U.S. at 689.
67
Id. at 694.
68
Id.
69
Knowles v. Mirzayance, 556 U.S. 111, 112 (2009) (quoting Schriro v. Landrigan, 550 U.S. 465, 478
(2007)).
10
satisfied that standard.”70 Thus, this standard is considered “doubly deferential” on habeas corpus
review.71
“A defendant who alleges a failure to investigate on the part of his counsel must allege
with specificity what the investigation would have revealed and how it would have altered the
outcome of the trial.”72 Petitioner asserts that his counsel’s failure to investigate and subpoena the
911 call records prejudiced his defense because an investigation would have revealed that no call
existed. However, Petitioner does not present any evidence to support this assertion. Therefore,
Petitioner has not shown that his counsel performed deficiently by failing to subpoena the 911 call
records.
The convictions at issue in this case arise out of robberies of three individuals that occurred
in the early morning hours of September 29, 2007, outside of JJ’s Bar in Gramercy, Louisiana.73
The next day, Detective Brett Forsythe of the St. James Parish Sheriff’s Office was advised that
the Gramercy Police Department received a tip from an anonymous caller that Petitioner had
committed the armed robbery outside of JJ’s Bar.74 Detective Forsythe compiled a photographic
lineup.75 Two of the victims did not identify their assailant at the first viewing, because they
indicated that they were scared.76 However, in separate interviews two days later, the two victims
70
Id.
71
Id.
72
Druery v. Thaler, 647 F.3d 535, 541 (5th Cir. 2011) (quoting Nelson v. Hargett, 989 F.2d 847, 850 (5th
Cir. 1993); United States v. Green, 882 F.2d 999, 1003 (5th Cir. 1989).
73
Brown, 80 So. 3d at 550.
74
Id.
75
Id.
76
Id. at 551.
11
positively identified Petitioner in the photographic lineup.77 At trial, all three victims identified
Petitioner as the assailant.78 The victims identifications were also corroborated by the testimony
of another individual, who identified Petitioner as the man she had spoken to while standing
outside of the bar on the night of the crime.79
Even accepting as true Petitioner’s assertion that a 911 call identifying him as the
perpetrator does not exist, he has not shown how his counsel’s failure to subpoena the call records
prejudiced the defense. All three victims identified Petitioner as the perpetrator at trial, and their
testimony was corroborated by another individual placing Petitioner outside the bar on the night
of the crime. Therefore, Petitioner has not shown that there is a reasonable probability that, but for
counsel’s failure to subpoena the 911 call records, the result of the proceeding would have been
different.
Petitioner does not object to the Magistrate Judge’s findings that Petitioner is not entitled
to relief on his claims that his trial counsel performed ineffectively in failing to interview witnesses
and subpoena the bartender. Reviewing these issues for plain error,80 and finding none, the Court
adopts the Magistrate Judge’s recommendation that Petitioner is not entitled to relief on these
claims. Therefore, for the reasons set forth in this Order and the Report and Recommendation
adopted by this Court, the Court concludes that the state courts’ denial of relief on Petitioner’s
ineffective assistance of trial counsel claims was not contrary to or an unreasonable application of
Supreme Court law.
77
Id.
78
Id.
79
Id. at 551.
80
Fed. R. Civ. P. 72(b)(3).
12
B.
Claims Regarding Alleged Errors in the State Post-Conviction Process
Petitioner objects to the Magistrate Judge’s determination that Petitioner is not entitled to
relief on his claims that the trial court erred by restricting his post-conviction evidentiary hearing
to one of his ineffective assistance of counsel claims about the plea deal, and by denying him the
right to subpoena witnesses for the evidentiary hearing.81 Therefore, the Court reviews these issues
de novo.82
Federal habeas corpus relief cannot be granted to remedy errors which occurred in state
post-conviction proceedings. As the United States Fifth Circuit Court of Appeals has explained,
“[a]n attack on a state habeas proceeding does not entitle the petitioner to habeas relief in respect
to his conviction, as it is an attack on a proceeding collateral to the detention and not the detention
itself.”83 The Fifth Circuit has also held that federal courts “are without jurisdiction to review the
constitutionality of [a petitioner’s] state postconviction proceedings.”84 Accordingly, Petitioner is
not entitled to federal habeas relief on his claims that the state trial court erred in conducting its
post-conviction proceedings.
V. Conclusion
For the reasons stated above, Petitioner has not shown that the state courts’ denial of relief
on his ineffective assistance of counsel claims was contrary to, or involved an unreasonable
application of, clearly established Federal law, as determined by the Supreme Court of the United
81
Rec. Doc. 18 at 1.
82
Fed. R. Civ. P. 72(b)(3).
83
Nichols v. Scott, 69 F.3d 1255, 1275 (5th Cir. 1995) (internal citations and quotation marks omitted); See
also Morris v. Cain, 186 F.3d 581, 585 n.6 (5th Cir. 1999) (“[O]ur circuit precedent makes abundantly clear that errors
in state postconviction proceedings will not, in and of themselves, entitle a petitioner to federal habeas relief.”);
Hallmark v. Johnson, 118 F.3d 1073, 1080 (5th Cir. 1997) (“[I]nfirmities in state habeas proceedings do not constitute
grounds for relief in federal court.”).
84
Kinsel v. Cain, 647 F.3d 265, 273–74 (5th Cir. 2011).
13
States. Additionally, Petitioner is not entitled to federal habeas relief on his claims that the state
trial court erred in conducting its post-conviction proceedings. Accordingly,
IT IS HEREBY ORDERED that Petitioner’s objections are OVERRULED;
IT IS FURTHER ORDERED that the Court ADOPTS the Magistrate Judge’s
recommendation and Petitioner Joe Brown’s petition for issuance for a writ of habeas corpus
pursuant to 28 U.S.C. § 2254 is DENIED and DISMISSED WITH PREJUDICE.
29th
NEW ORLEANS, LOUISIANA, this ______day of April, 2019.
__________________________________
NANNETTE JOLIVETTE BROWN
CHIEF JUDGE
UNITED STATES DISTRICT COURT
14
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?