Abdul v. Tanner et al

Filing 24

ORDER AND REASONS - The Court hereby approves the United States Magistrate Judges 19 Report and Recommendation and ADOPTS it as its opinion in this matter. ORDERED that Petitioner Hassan Abdul's application for federal habeas corpus relief be and hereby is DISMISSED WITH PREJUDICE. FURTHER ORDERED that Petitioner Hassan Abdul's 20 Motion to Stay is DENIED. Signed by Judge Susie Morgan on 3/25/19.(sbs)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
HASSAN A. ABDUL,
Petitioner

CIVIL ACTION

VERSUS

NO. 17-9108

ROBERT TANNER,
Respondent

SECTION: “E” (5)
ORDER AND REASONS

Before the Court is a Report and Recommendation issued by Magistrate Judge
Michael North recommending that Petitioner Hassan Abdul’s petition for federal habeas
corpus relief be dismissed with prejudice1 and a Report and Recommendation issued by
Magistrate Judge North recommending that Petitioner Hassan Abdul’s Motion to Stay be
denied. 2 Petitioner timely objected to the magistrate judge’s Report and Recommendations. 3
For the reasons that follow, the court adopts the Report and Recommendations as its own,
and hereby DENIES Petitioner’s application for relief.4 The Court also adopts the Report
and Recommendation recommending that the Motion to Stay be denied and accordingly,
DENIES Petitioner’s Motion to Stay. 5
BACKGROUND
Petitioner is an inmate currently incarcerated at the B.B. (Sixty) Rayburn
Correctional Center in Angie, Louisiana. Petitioner seeks relief from his state court
convictions for attempted second degree murder and possession of a firearm by a convicted

R. Doc. 18.
R. Doc. 20.
3 R. Doc. 19, R. Doc. 23.
4 R. Doc. 1.
5 R. Doc. 20.
1

2

1

felon. 6 The facts underlying Petitioner’s conviction are as follows. In the early morning
hours of May 24, 2009, Petitioner and the victim, Christopher Young, were closing down
Knuckleheadz, a bar in Gretna, Louisiana, and “totaling out” the cash from the registers. At
some point, Petitioner said to Mr. Young, “Chris, you don’t think I’ll shoot you, huh.” When
Mr. Young asked Petitioner what he meant, Petitioner pulled a gun from his waistband.
Petitioner shot Mr. Young and fled on his motorcycle. 7 Petitioner was charged with
attempted second-degree murder and possession of a firearm by a convicted felon, and the
charges were severed before trial. 8
On May 4, 2011, a jury found Petitioner guilty of attempted second-degree murder. 9
Petitioner subsequently pled guilty to possession of a firearm by a convicted felon.10
Petitioner was sentenced to twenty-five years at hard labor on the charge of attempted
second degree murder and ten years at hard labor on the charge of possession of a firearm
by a convicted felon, with the sentences to run concurrently. 11 The court of appeal affirmed
Petitioner’s conviction and sentence on December 12, 2013. 12 The Louisiana Supreme Court
denied Petitioner’s writ application on October 10, 2014. 13 On June 18, 2015, Petitioner
submitted his application for post-conviction relief to the state district court. 14 On October
16, 2015, the state district court denied relief. 15 On January 28, 2016, the Louisiana Fifth

R. Doc. 1.
State v. Abdul, 94 So.3d 801, 808 (La. App. 5 Cir. 4/24/12).
8 State Rec., Vol. 1 of 11, Bill of Information.
9 State Rec., Vol. 1 of 11, Minute Entry 5/4/11.
10 State Rec., Vol. 2 of 11, Minute Entry 5/16/11.
11 State Rec., Vol. 8 of 11, Minute Entry 3/6/13.
12 State v. Abdul, 2013-KA-566 (La. App. 5 Cir. 12/12/13), 131 So.3d 365; State Rec., Vol. 8 of 11.
13 State ex rel. Abdul v. State, 2014-KH-0249 (La. 10/10/14), 150 So.3d 895; State Rec., Vol. 8 of 11.
14 State Rec., Vol. 3 of 11, Application for Post-Conviction Relief and Memorandum in Support signed and
dated June 18, 2015.
15 State Rec., Vol. 4 of 11, State District Court Order, 10/16/15.
6
7

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Circuit denied his related supervisory writ application. 16 On August 4, 2017, the Louisiana
Supreme Court denied relief. 17
On September 18, 2017, Petitioner filed the instant petition seeking a writ of habeas
corpus. 18 In his petition, Petitioner raises nine grounds for relief:
(1) the state courts erred in imposing a procedural bar under Louisiana Code of
Criminal Procedure article 930.4(A);
(2) the evidence was insufficient to support his conviction for attempted seconddegree murder;
(3) he was actually innocent;
(4) he was denied the right to counsel and was forced to represent himself without a
proper Faretta hearing;
(5) he was denied effective assistance of pretrial counsel when (a) a public defender
withdrew without notice; (b) standby counsel failed to disclose exculpatory evidence he
needed to defend himself; (c) a public defender failed to investigate when Petitioner’s
legal documents were destroyed by employees of the Jefferson Parish Correctional
Center; and (d) a public defender violated Brady when he failed to deliver documents
to Petitioner;
(6) the trial court erred in failing to declare a mistrial when a juror acknowledged she
knew a witness;
(7) the trial court improperly admitted the 911 recording;
(8) the prosecutor committed misconduct during closing argument; and
(9) the trial court should have quashed the arrest warrant based on the false and
misleading affidavit.
Petitioner’s application was referred to the magistrate judge who issued his Report
and Recommendation on July 19, 2018. 19 In his Report and Recommendation, Magistrate
Judge North concluded Petitioner is not entitled to federal habeas corpus relief and
recommended his petition be dismissed. 20

State Rec., Vol. 4 of 11, Abdul v. State, 2015-KH-788 (La. App. 5 Cir. Jan. 28, 2016).
State ex rel. Abdul v. State, 2016-KH-0323 (La. 8/4/17), 223 So.3d 507; State Rec., Vol. 4 of 11.
18 R. Doc. 1.
19 R. Doc. 18.
20 Id.
16
17

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Petitioner filed a timely notice of objection on August 3, 2018. 21 Petitioner objects to
the magistrate judge’s recommended disposition of claims two, four, and nine. 22 Petitioner
argues (1) there was insufficient evidence to convict him of attempted second degree
murder because, even if true, none of the facts establish the requisite specific intent to kill;
(2) he was denied the right to counsel because he was forced to represent himself at the
December 6, 2010 motion hearing without a proper Faretta hearing; (3) the state district
court judge abused her discretion in failing to appoint substitute counsel; and (4) his claim
that the arrest warrant should have been quashed should not be procedurally barred his
ineffective assistance of trial counsel and post-conviction relief counsel establish cause to
excuse the procedural default. 23
ANALYSIS
I.

Standard of Review
In reviewing the magistrate judge’s Report and Recommendations, the Court must

conduct a de novo review of any of the magistrate judge’s conclusions to which a party has
specifically objected. 24 As to the portions of the report that are not objected to, the Court
needs only to review those portions to determine whether they are clearly erroneous or
contrary to law. 25
Under the Anti-Terrorism and Effective Death Penalty Act of 1996 (“AEDPA”), a
federal court must defer to the decision of the state court on the merits of a pure question
of law or a mixed question of law and fact unless that decision “was contrary to, or involved

R. Doc. 19.
Id.
23 R. Doc. 19.
24 See 28 U.S.C. § 636(b)(1) (“[A] judge of the court shall make a de novo determination of those portions of
the report or specified proposed findings or recommendations to which an objection is made.”).
25 Id.
21

22

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an unreasonable application of, clearly established Federal law, as determined by the
Supreme Court of the United States.” 26 A state court’s decision is contrary to clearly
established federal law if: “(1) the state court applies a rule that contradicts the governing
law announced in Supreme Court cases, or (2) the state court decides a case differently than
the Supreme Court did on a set of materially indistinguishable facts.” 27 Further, AEDPA
requires that a federal court give state trial courts substantial deference. 28
II.

Clearly Erroneous Review
A.

Claim One: The Procedural Bar Under Louisiana Code of Criminal
Procedure article 930.4(A) Does Not Preclude This Court’s
Review of Those Claims

Petitioner Abdul contends the state courts improperly applied Louisiana Code of
Criminal Procedure article 930.4(A) to procedurally bar his claims regarding sufficiency of
the evidence/actual innocence and waiver of counsel on collateral review, preventing this
Court from addressing them. The bar imposed by article 930.4(A) does not preclude federal
habeas review of claims that were considered on direct appeal but found repetitive on
collateral review, 29 and the State does not argue these claims are procedurally defaulted.30
Petitioner’s assertion is groundless because this Court will consider these claims on the
merits.

28 U.S.C. § 2254(d)(1).
Nelson v. Quarterman, 472 F.3d 287, 292 (5th Cir. 2006) (en banc) (quoting Mitchell v. Esparza, 540 U.S.
12, 15-16 (2003)).
28 Brumfield v. Cain, 135 S. Ct. 2269 (2015).
29 Bennett v. Whitley, 41 F.3d 1581, 1583 (5th Cir. 1994).
30 R. Doc. 17 at 12-13.
26
27

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B.

Claim Three: Petitioner’s Actual Innocence Claim Is Not
Cognizable Apart from His Insufficient Evidence Claim

Petitioner argues he is actually innocent of the charged crime, attempted second
degree murder. 31 The United States Supreme Court has yet to hold that federal habeas relief
is available based on a freestanding claim of actual innocence. 32 Magistrate Judge North
concluded that Petitioner was not entitled to relief on his claim for actual innocence because
“Petitioner has offered no new evidence, and his allegations regarding inconsistent
evidence and insufficient evidentiary proof do not satisfy the rigorous burden of proving
factual innocence.” 33 This Court’s review of the record affirms that this opinion is not clearly
erroneous or contrary to law.
C.

Claim Five: Petitioner Did Not Receive Ineffective Assistance of
Counsel

Petitioner raises several claims for ineffective assistance of counsel that were
rejected by the state court on the merits on collateral review. This court must defer to the
state court decision unless it was “contrary to, or involved an unreasonable application of,
clearly established Federal law.” 34 Magistrate Judge North determined that the state court’s
determination was neither contrary to, nor an unreasonable application of, clearly
established federal law for the following reasons: (1) Petitioner was never abandoned by
counsel; (2) Petitioner was not prejudiced by the failure to be provided with documents
confiscated from him in prison because he was provided those documents when he
exercised his right to self-representation; (3) Petitioner admitted to receiving the
exculpatory evidence he claimed he did not receive; and (4) Petitioner cannot show that

R. Doc. 1-1 at 33-34.
McQuiggin v. Perkins, 569 U.S. 383, 392 (2013).
33 R. Doc. 18 at 16.
34 28 U.S.C. § 2254(d)(1); Moore v. Cockrell, 313 F.3d 880, 881 (5th Cir. 2002).
31

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counsel acted deficiently or that he was prejudiced by the failure to investigate after
Petitioner’s documents were confiscated and destroyed. 35 This Court’s review of the record
affirms that this opinion is not clearly erroneous or contrary to law.
D.

Claims Six Through Eight Are Procedurally Defaulted

In claims six through eight, Petitioner asserts he was denied a fair trial because of
juror bias, improperly admitted 911 tapes, and prejudicial prosecutorial remarks made
during closing argument. The state courts rejected these claims as procedurally barred on
collateral review, relying on Louisiana Code of Criminal Procedure article 930.4(B),
because Abdul had knowledge of the claims but inexcusably failed to raise the issues in the
proceedings leading to his conviction. 36 Magistrate Judge North recommended that these
claims are procedurally barred from review by this Court. 37
Generally, a federal court will not review a question of federal law decided by a state
court if the decision of that state court rests on a state ground that is both independent of
the federal claim and adequate to support that judgment. 38 It is well-settled that Louisiana
Code of Criminal Procedure article 930.4(B) is an independent and adequate state
procedural ground sufficient to bar federal review of these claims. 39 As a result, Petitioner’s
claims six through eight are procedurally defaulted unless he can demonstrate “cause” for

R. Doc. 18 at 40.
State Rec., Vol. 4 of 11, State District Court Order, 10/16/15; Abdul v. State, 2015-KH-788 (La. App. 5 Cir.
Jan. 28, 2016); State ex rel. Abdul v. State, 2016-KH-0323 (La. 8/4/17), 223 So.3d 507; see also La. Code
Crim. Proc. art. 930.4(B).
37 R. Doc. 18 at 13.
38 Coleman v. Thompson, 501 U.S. 722, 731-32 (1991); Glover v. Cain, 128 F.3d 900, 902 (5th Cir. 1997); Amos
v. Scott, 61 F.3d 333, 338 (5th Cir. 1995) (citing Harris v. Reed, 489 U.S. 255, 260, 262 (1989)).
39 See, e.g., Holmes v. Vannoy, Civ. Action No. 16-6894, 2018 WL 941712 at *6 (E.D. La. Jan. 11, 2018),
adopted, 2018 WL 929602 (E.D. La. Feb. 16, 2018); Poupart v. Tanner, Civ. Action No. 15-1340, 2016 WL
8813778, at *20 (E.D. La. Apr. 25, 2016), adopted, 2017 WL 1511610 (E.D. La. Apr. 27, 2017); Welch v. Cain,
Civ. Action No. 12-38, 2015 WL 1526446, at *7-8 (M.D. La. Apr. 2, 2015); Brown v. Cain, Civ. Action No. 11–
2267, 2011 WL 7042222, at *8 (E.D. La. Dec. 20, 2011), adopted, 2012 WL 123288 (E.D. La. Jan. 17, 2012);
Thomas v. Cain, Civ. Action No. 11–2408, 2011 WL 6046536, at *5 (E.D. La. Nov. 17, 2011), adopted, 2011
WL 6028779 (E.D. La. Dec. 5, 2011).
35

36

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the default and prejudice resulting from the default, or show that the federal court's failure
to review the defaulted claim will result in a fundamental miscarriage of justice. 40
Magistrate Judge North concluded,
Abdul has not offered any cause for the default that would excuse the procedural bar
imposed by the Louisiana courts. Indeed, he had the ability to raise the issues on his
own behalf during the proceedings leading to his conviction but failed to do so, and
in some instances, stated on the record expressly that he had no objection. The
Court's review of the record does not support a finding that any factor external to
the defense prevented him from raising the claims in a procedurally proper manner.
Nor does the record reflect any action or inaction on the part of the State which
prevented him from doing so. 41
This Court’s review of the record affirms that this opinion is not clearly erroneous or
contrary to law.
III. De Novo Review
A.

Claim Two: The Evidence Was Sufficient to Support Petitioner’s
Conviction for Attempted Second-Degree Murder

Petitioner argues the evidence was insufficient to support his conviction for
attempted second-degree murder because the evidence did not demonstrate he was the
shooter or that he had specific intent to kill. Further, Petitioner argues the evidence was
insufficient because no weapon was ever found at the crime scene, there is no conclusive
evidence of how many times the victim was shot, and he was convicted using false
testimony. 42
The Louisiana Fifth Circuit rejected Petitioner’s sufficiency of the evidence claim on
direct appeal because the evidence sufficed to prove beyond a reasonable doubt that
Petitioner was the perpetrator and that he had specific intent to kill the victim. 43 The

Amos v. Scott, 61 F.3d at 339.
R. Doc. 18 at 12.
42 R. Doc. 1-1 at 28-33.
43 State v. Abdul, 94 So.3d at 811-12.
40
41

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Louisiana Fifth Circuit properly analyzed the sufficiency claim under Jackson v. Virginia.44
The Jackson standard requires a court to analyze whether, viewing the evidence in the light
most favorable to the prosecution, a rational trier of fact could have found that the essential
elements of the crime were proven beyond a reasonable doubt. 45 The court concluded there
was sufficient evidence to infer that Petitioner had the specific intent to kill because he
pointed a gun at the victim and fired it. The court concluded there was sufficient evidence
to identify Petitioner as the shooter because at least one witness identified him. 46
Because a claim challenging the sufficiency of the evidence presents a mixed
question of law and fact, this Court will defer to the state court's decision rejecting this claim
unless Petitioner shows that the decision was “contrary to, or involved an unreasonable
application of, clearly established Federal law, as determined by the Supreme Court of the
United States.” 47 Petitioner has made no such showing and is not entitled to relief on this
claim.
B.

Claim Four: Plaintiff’s Right To Counsel Was Not Violated

Petitioner argues his sixth amendment right to counsel was violated when the trial
court denied his request to substitute counsel and allowed him to proceed pro se. Petitioner
contends he was forced to represent himself and was subjected to self-representation or
hybrid representation without a without a proper hearing, in violation of Faretta v.
California. 48

443 U.S. 307 (1979).
Jackson, 443 U.S. at 319; Williams v. Cain, 408 F. Appx. 817, 821 (5th Cir. 2011); Perez v. Cain, 529 F.3d
588, 594 (5th Cir. 2008).
46 Id. at 811.
47 28 U.S.C. § 2254(d)(1); Taylor v. Day, Civ. Action No. 98–3190, 1999 WL 195515, at *3 (E.D. La. Apr. 6,
1999), aff'd, 213 F.3d 639 (5th Cir. 2000).
48 R. Doc. 1-1 at 35-43; R. Doc. 19 at 5-9; Faretta v. California, 422 U.S. 806, 835 (1975).
44
45

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The Louisiana Fifth Circuit rejected Petitioner’s sixth amendment and Faretta
claims on direct appeal, and the Louisiana Supreme Court likewise denied relief. 49 The
validity of a waiver of counsel and request for self-representation is a mixed question of law
and fact, requiring this Court to defer to the state court's decision rejecting this claim unless
the denial of relief by the state courts was contrary to or an unreasonable application of
Supreme Court law. 50 A determination of whether the state court’s decision was reasonable
is “is limited to the record that was before the state court that adjudicated the claim on the
merits.” 51
With respect to the waiver of the right to counsel, the Supreme Court has stated,
The Sixth and Fourteenth Amendments to the United States Constitution
guarantee a criminal defendant the assistance of counsel before he can be
validly convicted and punished by imprisonment. However, a criminal
defendant that is unwilling to be represented by counsel has the right to forgo
the assistance of counsel and conduct his own defense. The decision to
proceed pro se must be made voluntarily, knowingly, and intelligently, and it
is the trial judge's responsibility to ensure that this is the case. 52
The determination of whether the decision to proceed pro se is made voluntarily,
knowingly, and intelligently is typically referred to as a Faretta hearing.
On April 1, 2011, Petitioner moved to substitute counsel, alleging his appointed
counsel “has not and will not prepare an adequate defense for the defendant at trial (and

State v. Abdul, 94 So.3d at 813-16; State ex rel. Abdul v. State, 2012-KH-1226 (La. 10/12/12).
White v. Cain, Civ. Action No. 12-2906, 2014 WL 3096108, at *6 (E.D. La. July 7, 2014) (citing Brewer v.
Williams, 430 U.S. 387, 397, n. 4, 403-04 (1977) and Miller v. Fenton, 474 U.S. 104 (1985).
51 Cullen v. Pinholster, 563 U.S. 170, 206 (2011) (“If a claim has been adjudicated on the merits by a state
court, a federal habeas petitioner must overcome the limitation of § 2254(d)(1) on the record that was before
that state court.”); McCamey v. Epps, 658 F.3d 491, 498 (5th Cir. 2011) (district court erred in considering
evidence presented at federal evidentiary hearing in support of the petitioner's claim where the state court had
adjudicated the claim on the merits). Petitioner objects to the magistrate judge’s recommendation, arguing
the transcript from a motion hearing on December 6, 2010, which was not included in direct appeal or postconviction proceedings, demonstrates that he was forced to represent himself at that point, before a proper
Faretta hearing. R. Doc. 19 at 5-6; R. Doc. 1-1 at 35. This Court will not address Petitioner’s arguments with
respect to the December 6, 2010 motion hearing transcript because it was not included in the record before
the state court that adjudicated the claim on the merits.
52 Faretta v. California, 422 U.S. 806, 835 (1975).
49

50

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pretrial).” 53 Petitioner requested the appointment of “another state attorney (public
defender) or (myself) Mr. Hassan Abdul.” 54 The trial court held a hearing on his motion,
informing Petitioner that he could “not pick and choose who you want as a Public
Defender.” 55 The judge explained that the decision to substitute a public defender lies with
the public defender’s office, and that she did not “have the power to substitute Public
Defenders.” 56 Petitioner stated, “I mean, I’d rather represent myself and have someone to
assist me, if Mr. Tompson [Chief Public Defender] can give me an assistant.” 57
The trial court then had a colloquy with Abdul regarding self-representation to
ensure he was aware of the dangers and disadvantages of self-representation and that he
fully understood the undertaking. 58 The trial court concluded that Abdul’s “waiver of right
to assistance of counsel is knowingly, intelligently and voluntarily made and the assertion
of the right to represent himself is clear and unequivocal.” 59 The trial court ruled that Abdul
would be allowed to represent himself, appointed Mr. Miller as standby counsel, and
instructed that “[h]e will have no responsibility for the trial of your case.” 60
The state court’s determination that Petitioner’s waiver of right to counsel was
knowingly, intelligently, and voluntarily made, and that Petitioner’s assertion of the right
to represent himself was clear and unequivocal was reasonable and is not contrary to or an
unreasonable application of controlling Supreme Court precedent. The Court agrees with
the magistrate’s determination that Petitioner is not entitled to relief on this claim.

State Rec., Vol. 1 of 11, Motion for Substitution of Counsel, 4/1/11.
State Rec., Vol. 1 of 11, Motion for Substitution of Counsel, 4/1/11.
55 State Rec., Vol. 6 of 11, Transcript of Hearing, 4/4/11, p. 6.
56 State Rec., Vol. 6 of 11, Transcript of Hearing, 4/4/11, p. 8.
57 State Rec., Vol. 6 of 11, Transcript of Hearing, 4/4/11, p. 8.
58 State Rec., Vol. 6 of 11, Transcript of Hearing, 4/4/11, p. 13-16.
59 State Rec., Vol. 6 of 11, Transcript of Hearing, 4/4/11, p. 17.
60 State Rec., Vol. 6 of 11, Transcript of Hearing, 4/4/11, p. 17.
53

54

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C.

Claim Nine: Petitioner Cannot Demonstrate Cause to Overcome
the Procedural Default of His Claim That the Trial Court Should
Have Quashed an Invalid Arrest Warrant

Petitioner argues the trail judge erred in failing to quash the arrest warrant because
the probable cause affidavit on which it was issued contained false information. 61 The state
court rejected this claim as procedurally barred, based on Louisiana Code of Criminal
Procedure article 930.4(B), because Abdul had knowledge of this claim and failed to raise
it on objection or pretrial motion. 62 This procedural default will bar federal habeas review,
so long as the decision of the state court rests on a state ground that is both independent of
the merits of the federal claim and adequate to support the judgment.63 It is well settled
that Louisiana Code of Criminal Procedure article 930.4(B) is an independent and adequate
state procedural ground, sufficient to bar federal review of this claim.64 The Court agrees
with the magistrate’s determination that Abdul has procedurally defaulted this claim.
In objection to the magistrate’s report and recommendation, Petitioner asks to be
excused from this procedural default. In order to be excused from a procedural default,
Petitioner must show cause for his failure to properly raise the claims and demonstrate
prejudice; 65 alternatively, Petitioner could show that the federal court's failure to review the
defaulted claim will result in a fundamental miscarriage of justice. 66 Petitioner argues the
cause for the procedural default of his claim that the arrest warrant should have been

R. Doc. 1-1 at 72.
State ex rel. Abdul v. State, 2016-KH-0323 (La. 8/4/17), 223 So.3d 507.
63 Coleman v. Thompson, 501 U.S. 722, 731-32 (1991); Glover v. Cain, 128 F.3d 900, 902 (5th Cir. 1997); Amos
v. Scott, 61 F.3d 333, 338 (5th Cir. 1995).
64 See, e.g., Holmes v. Vannoy, No. 16-6894, 2018 WL 941712 at *6 (E.D. La. Jan. 11, 2018), adopted, 2018
WL 929602 (E.D. La. Feb. 16, 2018); Poupart v. Tanner, No. 15-1340, 2016 WL 8813778, at *20 (E.D. La.
Apr. 25, 2016), adopted, 2017 WL 1511610 (E.D. La. Apr. 27, 2017); Welch v. Cain, No. 12-38, 2015 WL
1526446, at *7-8 (M.D. La. Apr. 2, 2015); Brown v. Cain, No. 11–2267, 2011 WL 7042222, at *8 (E.D. La. Dec.
20, 2011), adopted, 2012 WL 123288 (E.D. La. Jan. 17, 2012); Thomas v. Cain, No. 11–2408, 2011 WL
6046536, at *5 (E.D. La. Nov. 17, 2011), adopted, 2011 WL 6028779 (E.D. La. Dec. 5, 2011).
65 Murray v. Carrier, 477 U.S. 478, 488 (1986).
66 Amos v. Scott, 61 F.3d at 339.
61

62

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quashed is the ineffective assistance of trial counsel in failing to move to quash the arrest
warrant and in improperly adopting a pro se motion filed by Petitioner. Additionally,
Petitioner argues that, had he been provided counsel on collateral review, he would have
framed this claim as part of his ineffective assistance of counsel claims raised on collateral
review in state court. 67
Under Edwards v. Carpenter, an ineffective assistance claim must be presented to
the state courts as an independent claim before it may be used to establish cause to excuse
a procedural default. 68 Petitioner has failed to present this ineffective assistance of trial
counsel claim to the state court as an independent claim. Therefore, the claim is not
exhausted, and Petitioner may not rely on it to establish cause to excuse the procedural
default of his original claim that the arrest warrant should have been quashed.
Petitioner attempts to circumvent the exhaustion requirement by arguing that the
exception of Martinez v. Ryan applies. 69 Under Martinez, when a federal habeas petitioner
brings a claim for ineffective assistance of trial counsel that is procedurally defaulted, he
can demonstrate cause for that default by showing that his post-conviction counsel (or lack
of counsel) was ineffective in failing to raise the claim on collateral review. 70 Here,
Petitioner’s claim that trial counsel was ineffective in failing to move to quash the arrest
warrant and improperly adopting Petitioner’s motion has not been presented to the state

R. Doc. 19 at 9-21
Edwards v. Carpenter, 529 U.S. 446, 120 S. Ct. 1587, 146 L. Ed. 2d 518 (2000); see also Murray v. Carrier,
477 U.S. 478, 489 (1986)(generally requiring “that a claim of ineffective assistance be presented to the state
courts as an independent claim before it may be used to establish cause for a procedural default”).
69 R. Doc. 19 at 9-12; Martinez v. Ryan, 566 U.S. 1 (2012); see also Trevino v. Thaler, 569 U.S. 413 (2013).
70 Trevino, 569 U.S. 413; Martinez, 566 U.S. 1. Petitioner perhaps foresees that his claim that trial counsel was
ineffective for failing to move to quash the arrest warrant and for improperly adopting Petitioner’s pro se
motion would be procedurally barred if he were to return to state court.
67

68

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courts. Therefore, that claim has not been procedurally defaulted, and the Martinez
exception does not apply.
Notwithstanding Petitioner’s failure to exhaust his ineffective assistance of trial
counsel claim in state court, this Court may deny the claim on the merits pursuant to 28
U.S.C. § 2254(b)(2). Additionally, Petitioner filed a Motion to Stay these proceedings so
that he may return to state court. The Court will fully address this motion in a subsequent
section. However, the motion gives this Court further reason to address the underlying
ineffective assistance of trial counsel claim on the merits because this Court would abuse
its discretion if it stayed this proceeding to allow Petitioner to exhaust a clearly meritless
claim. 71
1.

Trial Counsel Was Not Ineffective

The standard for evaluating an ineffective assistance of counsel claim derives from
Strickland v. Washington, which states the petitioner must show “that counsel’s
performance was deficient” and “that the deficient performance prejudiced the defense.” 72
The Court may consider these two prongs in either order, but the petitioner must satisfy
both prongs to succeed. 73
To demonstrate deficient performance by counsel, Petitioner must show that
counsel’s conduct “fell below an objective standard of reasonableness.”74 The Court applies

71 Rhines v. Weber, 544 U.S. 269, 277-78 (2005) (“Because granting a stay effectively excuses a petitioner's
failure to present his claims first to the state courts, stay and abeyance is only appropriate when the district
court determines there was good cause for the petitioner's failure to exhaust his claims first in state court.
Moreover, even if a petitioner had good cause for that failure, the district court would abuse its discretion if it
were to grant him a stay when his unexhausted claims are plainly meritless.”).
72 Strickland, 466 U.S. at 687; see Ibarra v. Davis, 738 F. App’x 814 (5th Cir. 2018) (discussing the showing a
Petitioner must make to demonstrate that ineffective assistance of trial counsel constitutes cause to excuse
the procedural default).
73 Strickland, 466 U.S. at 687.
74 Jones v. Jones, 163 F.3d 285, 301 (5th Cir. 1998) (quoting Strickland, 466 U.S. at 688).

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a highly deferential standard to the examination of counsel’s performance, making every
effort to eliminate the distorting effects of hindsight and to evaluate the conduct from
counsel’s perspective at the time of trial. 75 Petitioner must overcome a strong presumption
that the conduct of his counsel falls within a wide range of reasonable representation. 76
To demonstrate prejudice, 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. A reasonable probability is a probability sufficient to undermine
confidence in the outcome.” 77
Petitioner argues his trial counsel’s performance was deficient because he
improperly adopted a pro se motion filed by Petitioner and should have moved to quash
the arrest warrant because the probable cause affidavit on which it was based contained
false and misleading information. 78 Specifically, Petitioner argues his trial counsel was
ineffective because “he objected to the denial of a motion to quash the bill of information
when the motion that he should [have] been objecting to was the denial of the motion to
dismiss the information [contained in the probable cause affidavit, on which the arrest
warrant was based].” 79
Petitioner’s argument stems from his filing pro se motions while represented by
counsel. While represented, Petitioner filed a pro se “Motion for Dismissal of Information,”

75 Jones, 163 F.3d at 301 (quoting Pitts v. Anderson, 122 F.3d 275, 279 (5th Cir. 1997)); see also Lockhart v.
Fretwell, 506 U.S. 364, 371 (1993) (on ineffective assistance claim, courts judge counsel’s conduct on the facts
of the particular case, viewed as of the time of counsel’s conduct).
76 See Crockett v. McCotter, 796 F.2d 787, 791 (5th Cir. 1986); Mattheson v. King, 751 F.2d 1432, 1441 (5th
Cir. 1985).
77 Strickland, 466 U.S. at 694.
78 R. Doc. 19 at 9-12 (“[H]e objected to the denial of a motion to quash the bill of information when the motion
that he should [have] been objecting to was the denial of the motion to dismiss the information [contained in
the probable cause affidavit, on which the arrest warrant was based].”); see also R. Doc. 1-1 at 71.
79 R. Doc. 19 at 12.

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arguing the State lacked physical evidence to substantiate the bill of information and
requesting his immediate release. 80 The state trial court held a hearing on some of these
pro se motions on December 6, 2010, at which time the court instructed Petitioner’s
attorney to “have a conversation with Mr. Abdul to see if he’s going to represent himself or
if you’re going to represent him. And if you’re going to represent him and adopt his motions
and argue his motions then that’s fine.” 81 Petitioner’s attorney adopted the motions,
including Petitioner’s “Motion for Dismissal of Information,” and argued them on
December 10, 2010. 82 The motion was denied on that day, and counsel noted his objection
for the record. 83 Petitioner, pro se, appealed the denial of the motion to the Louisiana Fifth
Circuit Court of Appeals. 84 The Louisiana Fifth Circuit found “the trial judge did not err in
denying the motion to quash.” 85 Petitioner now argues his counsel was deficient in
improperly adopting his motion and in failing to move to quash the arrest warrant.
a.

Counsel’s Performance in Adopting the Motion Was
Not Deficient

Counsel’s performance in adopting the motion was not deficient because it adhered
to an objective standard of reasonableness. 86 Petitioner’s pro se motion motion states,
“[t]he State has instituted a prejudice[d] bill of information” and argues the State lacks
evidence to substantiate the bill of information. 87 Counsel argued the motion on the

State Rec., Vol. 1 od 11, Motion for Dismissal of Information.
State Rec., Vol. 9 of 11, Transcript of Hearing, 12/6/10, pp. 25-26.
82 State Rec., Vol. 6 of 11, Transcript of Hearing, 12/10/10, p. 8.
83 State Rec., Vol. 6 of 11, Transcript of Hearing, 12/10/10, p. 8; State Rec., Vol. 1 of 11, Minute Entry 12/10/10.
84 R. Doc. 1-5 at 217-222. The Louisiana Fifth Circuit Court of Appeals considered the motion as one to quash
the bill of information.
85 State Rec., Vol. 1 of 11, State v. Abdul, 2010-K-1078 (La. App. 5th Cir. Jan 21, 2011). In denying his writ
application, the Louisiana Fifth Circuit clarified that Petitioner was in fact attacking the discrepancy between
Ms. Tipado’s statement and the probable cause affidavit, the same argument he now advances to quash the
arrest warrant.
86 See Styron v. Johnson, 262 F.3d 438, 450 (5th Cir. 2001); Little v. Johnson, 162 F.3d 855, 860 (5th Cir.
1998).
87 State Rec., Vol. 1 of 11, Motion to Dismiss Information.
80
81

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grounds of insufficient evidence, and the motion was denied. 88 It was objectively
reasonable for counsel to adopt Petitioner’s pro se motion in this manner.
b.

Counsel’s Performance in Failing to File A Motion to
Quash Was Not Deficient
Counsel’s performance was not deficient in failing to file a motion to quash the
arrest warrant because such a motion would have been meritless. Whether to file a motion
is generally considered to be a matter of litigation strategy, and counsel's actions may not
be considered deficient if, under the circumstances, the challenged action might be
considered sound trial strategy. 89 Counsel is not required by the Sixth Amendment to file
meritless motions, 90 and the failure to file a meritless motion “cannot form the basis of a
successful ineffective assistance of counsel claim because the result of the proceeding would
not have been different had the attorney raised the issue.” 91
Louisiana Code of Criminal Procedure article 202 provides that a warrant of arrest
shall be issued when
(1) The person making the complaint executes an affidavit specifying, to his
best knowledge and belief, the nature, date, and place of the offense, and the
name and surname of the offender if known, and of the person injured if there
be any; and (2) The magistrate has probable cause to believe that an offense
was committed and that the person against whom the complaint was made
committed it. 92
“Probable cause for an arrest exists when the facts and circumstances known to the police
and of which the police have reasonably trustworthy information are sufficient to justify a
man of average caution in the belief that the person to be arrested has committed a

State Rec. Vol. 6 of 11, Transcript of Hearing, 12/10/10, p. 12-13.
Jackson v. Thaler, 358 F. App'x 585, 586 (5th Cir.2009)(citing Strickland v. Washington, 466 U.S. at 689).
90 United States v. Gibson, 55 F.3d 173, 179 (5th Cir. 1995).
91 United States v. Kimler, 167 F.3d 889, 893 (5th Cir.1999).
92 La. Code Crim. P. art. 202.
88
89

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crime.” 93 Minor inaccuracies in the assertions in a probable cause affidavit may not affect
the validity of the warrant. 94 When material facts are omitted from an affidavit without an
intent to defraud, the reviewing court must add these facts to those originally included in
the affidavit and retest the sufficiency of the showing of probable cause. 95 However, when
the affiant makes an intentional misrepresentation, designed to deceive the magistrate, the
warrant must be quashed. 96
The affidavit, submitted by Sargent David Spera states,
On Sunday May 24, 2009, Elzie Young reported to the Jefferson Parish
Sheriff’s Office that his boss’ son, Hassan Abdul, had shot him . . . Patrol units
located a witness . . . who stated that she had observed Young and Abdul in
the manager’s office and heard gunshots before Abdul came running out and
fled the establishment . . . Young and the witness identified his assailant as
Hassan Abdul. 97
Petitioner argues the probable cause affidavit, on which the arrest warrant was
based, contained false and misleading information, made with the intent to defraud,
because the witness later stated that Young, Abdul, and another person were in the
manager’s office. 98 If the affidavit were inadequate, then the arrest warrant based upon the
affidavit would be defective, and Petitioner’s subsequent arrest would be unlawful.99
There is no evidence to suggest Sargent Spera attempted to defraud the issuing
judge. Sargent Spera denied any knowledge of the witness’s conflicting statement until well
after filing the probable cause affidavit. 100 All of the information known to the police at the

93 State v. Willaims, 448 So.2d 659, 662 (La. 1984); State v. Wilkens, 364 So.2d 934 (La. 1978); State v.
Johnson, 363 So.2d 684 (La. 1978); State v. Marks, 337 So.2d 1177 (La. 1976).
94 State v. Willaims, 448 So.2d 659, 662 (La. 1984).
95 State v. Williams, 448 So.2d 659 (La. 1984) (citing State v. McCartney, 96-58 (La. App. 3 Cir. 10/9/96), 684
So. 2d 416, 422, writ denied, 97-0508 (La. 9/5/97), 700 So. 2d 503).
96 State v. Willaims, 448 So.2d 659, 662 (La. 1984).
97 R. Doc. 1-5 at 234.
98 R. Doc. 1-1 at 71-81; R. Doc. 19 at 9-12.
99 State v. Cook, 404 So. 2d 1210, 1212 (La. 1981).
100 R. Doc. 1-5 at 246 (Trial testimony of Sargent Spera).

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time of the arrest was sufficient to justify a man of ordinary caution in believing Petitioner
had committed a crime. Adding consideration of the conflicting witness statement,
probable cause for Petitioner’s arrest would still exist. The witness’s statement that she
observed Petitioner, the victim, and another in the office before hearing gunshots,
combined with the victim’s statement that Petitioner shot him and the identification by
both the witness and the victim, establishes probable cause for Petitioner’s arrest. 101 As a
result, the performance of Petitioner’s trial counsel was not deficient in failing to raise a
meritless motion.
c.

Petitioner Is Unable to Demonstrate Prejudice

Petitioner cannot demonstrate prejudice by counsel’s failure to raise a meritless
motion because he cannot demonstrate the result of the proceeding would have been
different if counsel had so moved. As a result, Petitioner is unable to satisfy either of the
Strickland prongs and cannot demonstrate that trial counsel was ineffective in failing to
move to quash the arrest warrant or in improperly adopting Petitioner’s pro se motion.
2.

Because Trial Counsel Was Not Ineffective, Petitioner Cannot
Demonstrate Cause to Excuse the Procedural Default

Because the Court concludes there is no merit to Petitioner’s claim that trial counsel
was ineffective in failing to move to quash the arrest warrant and in improperly adopting
Petitioner’s pro se motion, this claim cannot serve as cause to excuse the procedural default
of Petitioner’s claim that the trial court should have quashed the arrest warrant. Petitioner
is not entitled to relief on this claim.

See State v. McCartney, 96–58 (La.App. 3 Cir. 10/9/96), 684 So.2d 416, 421–423, writ denied, 97–0508
(La.9/5/97), 700 So.2d 503 (holding that the affidavit was sufficient to issue an arrest warrant regardless of
the magistrate's lack of knowledge of a witness’ contradictory statement).

101

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D.

Petitioner Is Not Entitled To a Stay

After filing objections to the magistrate judge’s report and recommendation on
Petitioner’s habeas petition, Petitioner filed a Motion to Stay, seeking to stay his federal
habeas proceedings so that he may return to state court and exhaust his unexhausted
habeas claims based upon new evidence that was not included in the record before the state
court. 102 The magistrate recommended the motion be denied because Petitioner did not
present a mixed petition containing exhausted and unexhausted claims. 103
Federal courts have the discretion to stay federal habeas proceedings while prisoners
seek the exhaustion of claims in state court. 104 Stay and abeyance is only available in limited
circumstances, such as when the court is faced with a “mixed petition,” where the petitioner
brings some exhausted and some unexhausted claims. 105 “[S]tay and abeyance is only
appropriate where (1) the district court determines there was good cause for the petitioner's
failure to exhaust his claims in state court”; (2) the claim is not “plainly meritless”; and (3)
there is no indication that the petitioner is “engag[ing] in abusive litigation tactics or
intentional delay.” 106
This Court has determined that Petitioner’s unexhausted claim that his trial counsel
was ineffective in failing to move to quash the arrest warrant and in improperly adopting
Petitioner’s pro se motion is meritless. A stay is not appropriate to allow Petitioner to return
to state court to exhaust this claim.

R. Doc. 20.
R. Doc. 22.
104 Rhines v. Weber, 544 U.S. 269, 277 (2005).
105 Id.
106 Young v. Stephens, 795 F.3d 484 (5th Cir. 2015).
102
103

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A stay is not appropriate to allow Petitioner to return to state court to present new
evidence to support his claim that he was forced to represent himself because this claim has
been fully exhausted in the state courts. “New evidence does not usually give rise to a new
claim; it merely provides additional proof of a claim already adjudicated on the merits.” 107
For this evidence to create a new claim, it must be material. 108 “Evidence is not material for
exhaustion purposes if it supplements, but does not fundamentally alter, the claim
presented to the state courts.” 109 The transcript of the December 6, 2010 motion hearing,
which Petitioner attaches to his Motion to Stay, does not fundamentally alter his claim so
as to create a new claim. The transcript reveals that at the hearing on some of the motions
Petitioner filed pro se while represented by counsel, the trial judge asked Petitioner’s
counsel, “well, do you represent him or does he represent himself?” Counsel responded,
“both,” to which the judge replied, “you can’t do both.” 110 The trial court did not hear the
pro se motions filed by Petitioner, instead instructing counsel to “have a conversation with
Mr. Abdul to see if he’s going to represent himself or if you’re going to represent him. And
if you’re going to represent him and adopt his motions and argue his motions then that’s
fine.” 111 Because the evidence included in this transcript does not create a new claim but
merely supplement’s Petitioner’s already exhausted claim that he was forced to represent
himself, a stay is not warranted.

Cullen v. Pinholster, 563 U.S. 170, 216 (2011) (Sotomayor, J., dissenting)
Moore v. Quarterman, 491 F.3d 213, 220 (5th Cir. 2007).
109 Moore v. Quarterman, 491 F.3d 213, 220 (5th Cir. 2007) (quoting Anderson v. Johnson, 338 F.3d 382,
386 (2003)) (quotation marks and citations omitted).
110 State Rec., Vol. 9 of 11, Transcript of Hearing, 12/6/10, p. 6; see also R. Doc. 19 at 5.
111State Rec., Vol. 9 of 11, Transcript of Hearing, 12/6/10, pp. 25-26.
107

108

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CONCLUSION
The Court, having considered the record, the applicable law, relevant filings, and the
magistrate judge’s Report and Recommendation finds the magistrate judge’s findings of
fact and conclusions of law are correct and hereby approves the United States Magistrate
Judge’s Report and Recommendation and ADOPTS it as its opinion in this matter. 112
Accordingly;
IT IS ORDERED that Petitioner Hassan Abdul’s application for federal habeas
corpus relief be and hereby is DISMISSED WITH PREJUDICE. 113
IT IS FURTHER ORDERED that Petitioner Hassan Abdul’s Motion to Stay is
DENIED.
New Orleans, Louisiana, this 25th day of March, 2019.
___________________________
SUSIE MORGAN
UNITED STATES DISTRICT JUDGE

112
113

R. Doc. 19.
R. Docs. 3, 7.

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