Andrews v. McCain et al

Filing 18

ORDER AND REASONS ADOPTING REPORT AND RECOMMENDATIONS 14 - IT IS ORDERED that Petitioner Charles Andrews's petition for issuance of a writ of habeas corpus under 28 U.S.C. § 2254 be and hereby is DISMISSED WITH PREJUDICE. Signed by Judge Susie Morgan.(bwn)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
CHARLES ANDREWS,
Plaintiff

CIVIL ACTION

VERSUS

NO. 17-14665

W.S. SANDY MCCAIN,
Defendant

SECTION "E"(4)

ORDER AND REASONS
Before the Court is a Report and Recommendation issued by Chief Magistrate
Judge Karen Wells Roby recommending Petitioner Charles Andrews’s petition for federal
habeas corpus relief be dismissed with prejudice. 1 Petitioner objected to the magistrate
judge’s Report and Recommendation. 2 For the reasons that follow, the Court ADOPTS
the Report and Recommendation as its own, and hereby DENIES Petitioner’s
application for relief.
BACKGROUND
Petitioner is an inmate currently incarcerated in the Raymond Laborde
Correctional Center in Cottonport, Louisiana. 3 On April 15, 2009, Petitioner was charged
by Bill of Information in Orleans Parish with attempted first degree murder. 4 Petitioner
was tried before a jury on March 17 and 18, 2010, and found guilty as charged. 5 On May
14, 2010, the state trial court sentenced Petitioner to fifty years in prison without benefit
of parole, probation, or suspension of sentence. 6 During the pendency of Petitioner’s

R. Doc. 14.
R. Doc. 15.
3 R. Doc. 1.
4 St. Rec. Vol. 1 of 5, Bill of Information, 4/15/09.
5 St. Rec. Vol. 1 of 5, Trial Minutes, 3/17/10; Trial Minutes, 3/18/10; St. Rec. Vol. 4 of 5, Trial Transcript,
3/17-18/10; Jury Charge Transcript, 3/18/10; St. Rec. Vol. 3 of 5, Jury Verdict Form, 3/18/10.
6 St. Rec. Vol. 1 of 5, Sentencing Minutes, 5/14/10; St. Rec. Vol. 4 of 5, Sentencing Transcript, 5/14/10. The
1

2

1

direct appeal, the trial court was ordered to rule on Petitioner’s motion for post-verdict
judgment of acquittal, which the trial court denied on October 22, 2010. 7 On February 16,
2011, the Louisiana Fourth Circuit affirmed the conviction, but remanded the matter for
resentencing based on the trial court’s failure to timely rule on the motion for post-verdict
judgment of acquittal. 8 The trial court complied and on April 21, 2011, resentenced
Petitioner to fifty years in prison without benefit of parole, probation, or suspension of
sentence. 9 On September 23, 2011, the Louisiana Supreme Court denied Petitioner’s writ
application. 10 Petitioner did not file a writ application with the United States Supreme
Court.11
On September 21, 2012, Petitioner, through new counsel, filed an application for
post-conviction relief with the state court asserting three ineffective assistance of counsel
grounds for relief. 12 The state trial court found one of the claims of ineffective assistance
of counsel to be barred from post-conviction review, citing La. Code Crim. P. art. 930.3. 13
The trial court held evidentiary hearings on the remaining two claims. 14 On November 19,
2015, the trial court denied relief on the remaining claims, finding them to be meritless
under Strickland v. Washington, 466 U.S. 668 (1984). 15 On April 12, 2016, the Louisiana

record includes numerous references to a multiple bill and related hearings. The record, however, does not
include a copy of the multiple bill or a minute entry or order related to any resentencing related to the
multiple bill.
7 St. Rec. Vol. 4 of 5, Trial Court Order, 10/22/10; 4th Cir. Order, 2010-KA-1020, 9/17/10; St. Rec. Vol. 3 of
5, Motion for Post-Verdict Judgment of Acquittal, 4/6/10.
8 State v. Andrews, 61 So.3d 121, 121 (La. App. 4th Cir. 2011); St. Rec. Vol. 4 of 5, 4th Cir. Opinion, 2010KA-1020, 2/16/11.
9 St. Rec. Vol. 1 of 5, Sentencing Minutes, 4/21/11.
10 State v. Andrews, 69 So.3d 1156 (La. 2011); St. Rec. Vol. 5 of 5, La. S. Ct. Order, 2011-KO-0458, 9/23/11;
La. S. Ct. Writ Application, 11-KO-0458, 3/4/11; St. Rec. Vol. 4 of 5, La. S. Ct. Letter, 2011-KO-458, 3/4/11.
11 R. Doc. 14 at 4.
12 St. Rec. Vol. 3 of 5, Application for Post-Conviction Relief, 9/21/12.
13 St. Rec. Vol. 3 of 5, Trial Court Ruling, 3/19/13; State’s Objections, 2/28/13; St. Rec. Vol. 1 of 5, Minute
Entry, 3/19/13.
14 St. Rec. Vol. 1 of 5, Minute Entry, 11/8/13; Minute Entry, 8/22/14; St. Rec. Vol. 2 of 5, State’s Opposition,
9/19/14; Hearing Transcript, 11/8/13; Hearing Transcript, 8/22/14.
15 St. Rec. Vol. 2 of 5, Trial Court Ruling, 11/19/15; St. Rec. Vol. 1 of 5, Minute Entry, 11/19/15.

2

Fourth Circuit denied Petitioner’s writ application. 16 The Louisiana Supreme Court also
denied Petitioner’s subsequent writ application on October 27, 2017, pursuant to
Strickland. 17
On December 5, 2017, Petitioner, through counsel, filed the instant federal petition
for habeas corpus relief in which he asserts he was denied effective assistance of counsel
because his pretrial counsel 18 failed to file a motion to suppress evidence, namely the mail
seized from Petitioner’s girlfriend’s former residence without a warrant or consent. 19 The
State filed a response in opposition to Petitioner’s federal petition. 20 The State concedes
the timeliness of the petition 21 and asserts Petitioner’s claim is without merit. 22
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. 23 As to the portions of the report that are not objected to, the Court
needs only review those portions to determine whether they are clearly erroneous or
contrary to law. 24

St. Rec. Vol. 5 of 5, 4th Cir. Order, 2016-K-0055, 4/12/16; 4th Cir. Writ Application, 2016-K-0055,
1/14/16.
17 State v. Andrews, 228 So.3d 201 (La. 2017); St. Rec. Vol. 5 of 5, La. S. Ct. Order, 2016-KP-0876, 10/27/16;
La. S. Ct. Writ Application, 16-KP-876, 5/10/16.
18 Petitioner’s pretrial counsel withdrew before trial. R. Doc. 14 at 13. Petitioner is currently represented by
other counsel.
19 R. Doc. 1 at 6.
20 R. Doc. 12.
21 The State concedes timeliness and outlines the efforts Petitioner made to exhaust state court review of his
claim. R. Doc. 12. As Chief Magistrate Judge Roby found, “[t]he record does not reflect that [Petitioner’s]
claim is in procedural default.” R. Doc. 14 at 6. Accordingly, the Court will proceed to substantive review of
Petitioner’s claim.
22 R. Doc. 12.
23 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.”).
24 Id.
16

3

Under the Anti-Terrorism and Effective Death Penalty Act of 1996 (“AEDPA”), a
state court's purely factual determinations are presumed to be correct and a federal court
will give deference to the state court's decision unless it “was based on an unreasonable
determination of the facts in light of the evidence presented in the State court
proceeding.” 25 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 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 The AEDPA requires that a federal court “accord the state trial
court substantial deference.” 28
II.

Ineffective Assistance of Counsel
In Strickland v. Washington, the Supreme Court established a two-pronged test

for evaluating claims of ineffective assistance of counsel. Specifically, a petitioner seeking
relief must demonstrate both: (1) counsel's performance was deficient and (2) the
deficient performance prejudiced his defense. 29 A petitioner bears the burden of proof on
such a claim and “must demonstrate, by a preponderance of the evidence, that his counsel
was ineffective.” 30 “[A] court must indulge a strong presumption that counsel's conduct

28 U.S.C. § 2254(d)(2)
Id. § 2254(d)(1).
27 Williams v. Taylor, 529 U.S. 362, 405–06 (2000).
28 Brumfield v. Cain, 135 S. Ct. 2269 (2015).
29 Strickland v. Washington, 466 U.S. 668, 697 (1984).
30 Jernigan v. Collins, 980 F.2d 292, 296 (5th Cir. 1993); see also Clark v. Johnson, 227 F.3d 273, 284 (5th
Cir. 2000).
25

26

4

falls within the wide range of reasonable professional assistance; that is, the defendant
must overcome the presumption that, under the circumstances, the challenged action
“might be considered sound trial strategy.” 31
To prevail on the deficiency prong of the Strickland test, a petitioner must
demonstrate that counsel's conduct fails to meet the constitutional minimum guaranteed
by the Sixth Amendment. 32 “Counsel's performance is deficient if it falls below an
objective standard of reasonableness.” 33 Analysis of counsel's performance must consider
the reasonableness of counsel's actions in light of all the circumstances. 34 “[I]t is
necessary to ‘judge . . . counsel's challenged conduct on the facts of the particular case,
viewed as of the time of counsel's conduct.’” 35 A petitioner must overcome a strong
presumption that the conduct of his counsel falls within a wide range of reasonable
representation. 36
To prevail on the prejudice prong of the Strickland test, 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.” 37 In this context, a reasonable
probability is “a probability sufficient to undermine confidence in the outcome.” 38 In
making a determination as to whether prejudice occurred, courts must review the record
to determine “the relative role that the alleged trial errors played in the total context of
[the] trial.” 39 If a court finds that a petitioner has made an insufficient showing as to either
Strickland, 466 U.S. at 689.
See Styron v. Johnson, 262 F.3d 438, 450 (5th Cir. 2001).
33 Little v. Johnson, 162 F.3d 855, 860 (5th Cir. 1998).
34 See Strickland, 466 U.S. at 689.
35 Lockhart v. Fretwell, 506 U.S. 364, 371 (1993) (quoting Strickland, 466 U.S. at 690).
36 See Crockett v. McCotter, 796 F.2d 787, 791 (5th Cir. 1986); Mattheson v. King, 751 F.2d 1432, 1441 (5th
Cir. 1985).
37 Strickland, 466 U.S. at 694.
38 Id.
39 Crockett, 796 F.2d at 793.
31

32

5

of the two prongs of inquiry, i.e., deficient performance or actual prejudice, it may dispose
of the ineffective assistance claim without addressing the other prong. 40
The Supreme Court has clarified that, in applying Strickland on habeas review,
“[t]he question is whether an attorney’s representation amounted to incompetence under
‘prevailing professional norms,’ not whether it deviated from best practices or most
common custom.” 41 Accordingly, a high level of deference is owed to a state court’s
findings under Strickland in light of AEDPA standards of review: “[t]he standards created
by Strickland and §2254(d) are both highly deferential, and when the two apply in
tandem, review is doubly so.” 42 Because scrutiny of counsel’s performance under §
2254(d) is “doubly deferential,” 43 federal courts must take a “highly deferential” look at
counsel’s performance under the Strickland standard through the “deferential lens of §
2254(d).” 44
Petitioner asserts he received ineffective assistance of counsel during his state court
trial, arguing as follows:
A motion to supress [sic] evidence was never filed by trial counsel. Trial counsel failed
to preserve a significant issue by not objecting to evidence being produced. In this case,
a New Orleans police officer conducted a search, without consent or a warrant, of
occupied non-abandoned property, where the defendant resided, of a residence in
Jefferson Parish (which was outside of the Orleans parish officer’s jurisdiction, and
seized U.S. Mail, which is a crime on its own. This is ineffective assistance as the police
officer had no legal right to enter the property, and had trial counsel been effective this
issue would have been litigated and led to a different outcome. 45,46
Petitioner previously asserted these arguments in his state court application for post-

Strickland, 466 U.S. at 697.
Harrington v. Richter, 562 U.S. 86, 103 (2011).
42 Id. at 105 (internal quotations marks and citations omitted).
43 Cullen v. Pinholster, 563 U.S. 170, 190 (2011) (quoting Knowles v. Mirzayance, 556 U.S. 111, 112 (2009)).
44 Id. (citing Strickland, 466 U.S. at 689, and quoting Knowles, 556 U.S. at 121 n.2).
45 R. Doc. 1 at 6.
46 The magistrate judge notes the item was not itself “mail” but a notice the U.S. Postal Service had
attempted to deliver mail to Petitioner. R. Doc. 14 at 14-15.
40
41

6

conviction relief. For the sake of clarity, the Court summarizes the pertinent state court pretrial proceedings concerning the mail receipt. On July 9, 2009, at the hearing held before
Petitioner’s trial, the following occurred:
1) The investigating officer testified 47:
a. after the victim was released from the hospital, he showed them the
house where he met Petitioner 48;
b. the officers learned from the landlord that the tenants had recently
moved out, and the electricity was turned off, and the house appeared
abandoned 49;
c. the lessee had been Geralyn McGee, who owned the cell phone the
victim used to call Petitioner 50;
d. the officers also saw a mail delivery notice from the postal service stuck
to the door and addressed to Charles Andrews, which they did not seize
right away, but rather at a later time while the residence was still
unoccupied. 51
2) Petitioner’s pretrial counsel questioned the investigating officer about the
house and the mail delivery notice that was retrieved, how he obtained the
address of the residence, and the identity of the person who owned the cell
phone number used to link the house to Petitioner 52;
3) At the conclusion of the hearing, the trial court held that no motion to suppress

47 Similar

testimony was given by the officer during trial. St. Rec. Vol. 4 of 5, Trial Transcript, p. 50-52, 3/1718/10.
48 St. Rec. Vol. 4 of 5, Hearing Transcript, p. 7, 7/9/09.
49 St. Rec. Vol. 4 of 5, Hearing Transcript, pp. 8, 9, 7/9/09.
50 St. Rec. Vol. 4 of 5, Hearing Transcript, pp. 7, 9, 7/9/09.
51 St. Rec. Vol. 4 of 5, Hearing Transcript, pp. 8, 20, 7/9/09.
52 St. Rec. Vol. 4 of 5, Hearing Transcript, pp. 20-23, 7/9/09.

7

evidence would lie. 53
After the evidentiary hearings, the trial court held the following:
1) When police arrived at the address obtained through information provided by
the victim, the residence appeared abandoned and the electricity was
disconnected;
2) The landlord confirmed to police that the tenant, Petitioner’s girlfriend, had
previously moved out;
3) Petitioner had no right of privacy at his girlfriend’s former residence, especially
considering that neither the girlfriend nor Petitioner lived at the residence
when the police seized the mail receipt;
4) The mail receipt was found in plain view and there were no grounds shown for
its suppression;
5) Petitioner failed to prove that his counsel acted deficiently or that the outcome
of the trial would have been different had counsel filed a motion to suppress,
as required under Strickland. 54
Following this, the Louisiana Supreme Court also found that Petitioner failed to meet his
burden of proof under Strickland. 55
On post-conviction review, Petitioner challenged his pretrial counsel’s performance
for not filing a motion to suppress. At the post-conviction evidentiary hearing, the following
occurred:
1) Petitioner’s pretrial counsel was questioned about the pretrial hearing and the
questions he asked during that hearing to the investigating officer, with specific focus
on the abandoned residence and the mail delivery notice. 56
2) Petitioner’s pretrial counsel testified:
a. his main focus at the time was on the suppression of the identification made by

St. Rec. Vol. 4 of 5, Hearing Transcript, p. 37, 7/9/09.
St. Rec. Vol. 2 of 5, Trial Court Ruling, 11/19/15; St. Rec. Vol. 1 of 5, Minute Entry, 11/19/15.
55 State v. Andrews, 228 So.3d 201 (La. 2017); St. Rec. Vol. 5 of 5, La. S. Ct. Order, 2016-KP-0876, 10/27/16;
La. S. Ct. Writ Application, 16-KP-876, 5/10/16.
56 St. Rec. Vol. 2 of 5, Hearing Transcript, 11/8/13.
53

54

8

the victim, which was done before the mail notice was seized 57;
b. he recalled having overall concerns with the investigation and development of
Petitioner as a suspect, but nothing in particular with the mail notice 58;
c. the record showed the detective did speak with the owner of the property and
Petitioner and his girlfriend no longer lived in the residence when the detective
was on the property 59;
d. he enrolled in the case after pretrial motions had concluded and did not file any
further pretrial motions. 60
After the post-conviction evidentiary hearings, the trial court held Petitioner failed to
establish he had any privacy rights at the abandoned residence or in the mail delivery notice
stuck in the door of the abandoned residence and, as a result, Petitioner’s pretrial counsel had
no grounds to challenge the taking of that mail notice in a motion to suppress. 61
Petitioner has failed to demonstrate the state courts’ decision was contrary to or an
unreasonable application of Strickland. Applying the Strickland standards, the record
demonstrates Petitioner’s pretrial counsel made a strategic decision to push forward on the
motion to suppress the identification made by the victim and, after hearing the testimony of
the officer at the pretrial hearing, made a sound, strategic choice to argue the motion to
suppress the identification and not to pursue a motion to suppress the mail delivery notice.
Even if Petitioner’s pretrial counsel thought he should have filed more motions in retrospect,
Strickland requires courts to judge counsel's challenged conduct “viewed as of the time of
counsel's conduct.’” 62 As Petitioner’s pretrial counsel testified, the pretrial testimony by the

St. Rec. Vol. 2 of 5, Hearing Transcript, 8/22/14.
Id.
59 Id.
60 Id.
61 St. Rec. Vol. 2 of 5, Trial Court Ruling, 11/19/15.
62 Lockhart, 506 U.S. at 371 (quoting Strickland, 466 U.S. at 690).
57

58

9

detective revealed nothing that would have called for suppression of the mail delivery notice
taken from the empty residence. 63 Chief Magistrate Judge Roby found, and this Court agrees:
“[a]s determined by the state courts, the record discloses no basis for [Petitioner’s] counsel to
have filed a motion to suppress in this case.” 64 Because counsel is not ineffective for failing to
“‘make futile motions or objections,’”65 Petitioner is unable to overcome a strong presumption
that the conduct of his pretrial counsel falls within a wide range of reasonable
representation. 66 Petitioner has failed to establish the state courts’ denial of relief on this issue
was contrary to or an unreasonable application of Strickland, and accordingly Petitioner is
not entitled to relief on this issue.
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. 67

CONCLUSION
IT IS ORDERED that Petitioner Charles Andrews’s petition for issuance of a writ
of habeas corpus under 28 U.S.C. § 2254 be and hereby is DISMISSED WITH
PREJUDICE.
New Orleans, Louisiana, this 12th day of August, 2019.
_____________________ _______
SUSIE MORGAN
UNITED STATES DISTRICT JUDGE

St. Rec. Vol. 2 of 5, Hearing Transcript, 8/22/14.
R. Doc. 14 at 15.
65 Johnson v. Cockrell, 306 F.3d 249, 255 (5th Cir. 2002) (quoting Koch v. Puckett, 907 F.2d 524, 527 (5th
Cir. 1990)).
66 See Crockett, 796 F.2d at 791; Mattheson, 751 F.2d at 1441.
67 R. Doc. 14.
63

64

10