Dixon v. Cain et al

Filing 35

RULING Adopting 28 Report and Recommendation of the U.S. Magistrate Judge. The Petitioner's application is DENIED, this proceeding is dismissed with prejudice, and in the event the Petitioner seeks to pursue an appeal, a certificate of appealability is also DENIED. Signed by Judge Shelly D. Dick on 1/23/2018. (KAH)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA

JIMMIE DARNELL DIXON

CIVIL ACTION

VERSUS
N. BURL CAIN, ET AL.

15-45-SDD-RLB
RULING

The Court has carefully considered the Application for Writ of Habeas Corpus (R.
Doc. 1), the record, the law applicable to this action, and the Report and Recommendation
of United States Magistrate Judge Richard L. Bourgeois, Jr. dated November 21, 2017.
The Plaintiff has filed an Objection (R. Doc. 29) which the Court has also considered.1
The Court approves of the reasoning set forth in the Report and Recommendation
of the Magistrate Judge and adopts the following portions as the Court’s opinion herein:
Applicable Law and Analysis
Timeliness
The State of Louisiana asserts that the petitioner’s application is untimely. In this
regard, pursuant to 28 U.S.C. § 2244(d), there is a one-year statute of limitations
applicable to federal habeas corpus claims brought by prisoners in state custody. This
limitations period begins to run on the date that the judgment becomes final through the
conclusion of direct review or through the expiration of time for seeking such review. 28
U.S.C. § 2244(d)(1)(A). As provided by the referenced statute, the time during which a

1

Due to a clerical error, the Magistrate Judge recommended that the petitioner’s application be denied as
untimely. However, the Magistrate Judge found the petitioner’s application to be timely, and after a
substantive review of the petitioner’s claims recommended that they be denied within the body of the
Report. The Magistrate Judge’s substantive review was addressed by the petitioner in his Objection.

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properly filed application for state post-conviction or other collateral review is thereafter
pending before the state courts with respect to the pertinent judgment or claim shall not
be counted toward any part of the one-year limitations period. 28 U.S.C. § 2244(d)(2).
However, the time during which there are no properly filed post-conviction or other
collateral review proceedings pending does count toward calculation of the one-year
period. To be considered “properly filed” for purposes of § 2244(d)(2), an application’s
delivery and acceptance must be in compliance with the applicable laws and rules
governing filings. Pace v. DiGuglielmo, 544 U.S. 408, 413 (2005), citing Artuz v. Bennett,
531 U.S. 4, 8 (2000). Further, a properly-filed state application is considered to be
“pending” both while it is before a state court for review and also during the interval after
a state court’s disposition while the petitioner is procedurally authorized under state law
to proceed to the next level of state court consideration. See Melancon v. Kaylo, 259
F.3d 401, 406 (5th Cir. 2001).
The State argues that the Petitioner’s conviction became final on January 22,
2009, thirty (30) days after the December 23, 2008 decision of the Louisiana First Circuit
Court of Appeal on direct appeal because the Petitioner failed to timely file his application
for supervisory review in the Louisiana Supreme Court.

This Court has previously

determined that the Petitioner’s writ application was timely filed. See R. Doc. 26.
Alternatively, the state argues that the Petitioner’s application is untimely because
he failed to timely file his application for supervisory review with the Louisiana First Circuit
Court of Appeal following the denial of his PCR application by the trial court on August
26, 2013. However, the Petitioner’s writ application was signed by the Petitioner on
September 25, 2013. See Petitioner’s exhibit “K.” The courts of this Circuit have long
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concluded that the prison mailbox rule applies to the filing of pleadings submitted to courts
by Louisiana pro se inmates. Pursuant to that rule, an inmate’s pleadings are considered
to be filed on the date that they are presented to prison officials or placed into the prison
mailing system for transmission to the Court, not on the date that they are ultimately
received or docketed by the Court. See Cooper v. Brookshire, 70 F.3d 377, 379-80 (5th
Cir. 1995); Vicks v. Griffin, 2008 WL 553186, *3 (E.D. La. Feb. 28, 2008). The inherent
basis for the rule is a recognition that, “[u]nskilled in law, unaided by counsel, and unable
to leave the prison, [a prisoner’s] control over the processing of his [pleadings] necessarily
ceases as soon as he hands it over to the only public officials to whom he has access –
the prison authorities.” Cooper v. Brookshire, supra, 70 F.3d at 379, quoting Houston v.
Lack, 487 U.S. 266, 271-72 (1988). The Cooper court also recognized that application of
the rule allows courts to sidestep such potentially difficult issues as the possible
motivation of prison officials to delay or obstruct the filing of inmates’ complaints, and
“pretermits time-consuming examinations of the circumstances behind any delay.” Id.
Thus, in the absence of evidence to the contrary, courts have generally presumed that
the date that an inmate has signed and dated his Complaint is the date that he has given
it to prison officials for mailing to the courts. See Toomer v. Cain, 2010 WL 4723365, n.
3 (E.D. La. July 30, 2010) (finding that, “[g]enerally, a court will look to the date a prisoner
signed his pleading”). In the instant case, the Plaintiff’s writ application, was signed and
dated by him on September 25, 2013. Accordingly, the Court finds that September 25,
2013, is the applicable filing date of the Plaintiff’s writ application and was therefore timely
filed.

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The Petitioner’s conviction became final on January 28, 2010, ninety days after
denial of his application for supervisory review in the Louisiana Supreme Court on March
28, 2008 in connection with his direct appeal. See Roberts v. Cockrell, 319 F.3d 690,
694 (5th Cir. 2003). Thereafter, approximately 245 days elapsed until the Petitioner filed
his PCR application on or about September 30, 2010. The Petitioner’s PCR application
remained pending until the Louisiana Supreme Court denied his writ application on
November 14, 2014. Seventy-six days elapsed between the denial of the Petitioner’s writ
application and the filing the instant petition on January 29, 2015. Therefore, only 321
days of un-tolled time elapsed during which the Petitioner did not have any properly filed
application for post-conviction or other collateral relief pending before the state courts.
As such, the Petitioner’s habeas petition was timely filed and the Court will now address
the merits of the same.
Standard of Review
The standard of review in this Court is that set forth in 28 U.S.C. § 2254(d).
Pursuant to that statute, an application for a writ of habeas corpus shall not be granted
with respect to any claim that a state court has adjudicated on the merits unless the
adjudication has “(1) resulted in a decision that was contrary to, or involved an
unreasonable application of, clearly established Federal law, as determined by the
Supreme Court of the United States; or (2) resulted in a decision that was based on an
unreasonable determination of the facts in light of the evidence presented in the State
court proceeding.” Relief is authorized if a state court has arrived at a conclusion contrary
to that reached by the Supreme Court on a question of law or if the state court has decided
a case differently than the Supreme Court on a set of materially indistinguishable facts.
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Williams v. Taylor, 529 U.S. 362, 413 (2000). Relief is also available if the state court has
identified the correct legal principle but has unreasonably applied that principle to the
facts of the Petitioner’s case or has reached a decision based on an unreasonable factual
determination. See Montoya v. Johnson, 226 F.3d 399, 404 (5th Cir. 2000). Mere error
by the state court or mere disagreement on the part of this Court with the state court
determination is not enough; the standard is one of objective reasonableness. Id. See
also Williams v. Taylor, supra, 529 U.S. at 409 (“[A] federal habeas court making the
‘unreasonable application’ inquiry should ask whether the state court’s application of
clearly established federal law was objectively unreasonable”).

State court

determinations of underlying factual issues are presumed to be correct, and the Petitioner
has the burden to rebut that presumption with clear and convincing evidence. 28 U.S.C.
§ 2254(e)(1).
Substantive Review
Claim 1: Non-Unanimous Verdict
The Petitioner claims that his conviction by a non-unanimous jury verdict violated
his Sixth Amendment right to trial by jury. Louisiana Constitution article I, § 17(A) and
Louisiana Code of Civil Procedure article 782(A) provide that cases in which punishment
is necessarily confinement at hard labor shall be tried by a jury composed of twelve jurors,
ten of whom must concur to reach a verdict. The Petitioner was tried before a twelve
person jury, and eleven jurors voted to convict the Petitioner.
The Petitioner argues that the United States Supreme Court decision in Apodaca
v. Oregon, 406 U.S. 404 (1972) holding that non-unanimous jury verdicts do not violate a

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defendant’s constitutional rights, has been called into question by Apprendi v. New
Jersey, 530 U.S. 466 (2000). The Petitioner’s argument is without merit.
Since deciding Apodaca, the United States Supreme Court has repeatedly
declined to grant certiorari to reconsider the constitutionality of non-unanimous verdicts
in state proceedings. See, e.g., Barbour v. Louisiana, 562 U.S. 1217 (2011); Herrera v.
Oregon, 562 U.S. 1135 (2011); and Jackson v. Louisiana, 134 S.Ct. 1950 (2014).
Furthermore, as explained by the court in State v. Jones, 13-367 (La. App. 5 Cir.
12/27/13), 131 So.3d 1065,
“The issue before the court in Apprendi was whether the defendant
could be sentenced to additional incarceration upon a finding of guilt
of an additional element of the crime by a judge after discharge of
the jury, and by proof less than beyond a reasonable doubt. Clearly
the New Jersey statute in Apprendi was unconstitutional, but the
unconstitutionality had nothing to do with non-unanimous verdicts,
which were not at issue in Apprendi. The insignificant reference to
the requirement of a unanimous verdict was simply because New
Jersey’s Constitution requires unanimous verdicts, and therefore a
verdict on the additional element of the crime used to enhance the
possible penalty also had to be decided by a unanimous jury, and
not by the presiding judge.”2
As such, the law of Apodaca remains settled. The Petitioner can claim no violation
of federal law from his conviction by a non-unanimous verdict.
Claim 2: Sufficiency of the Evidence
The Petitioner asserts that the evidence was insufficient for a rational jury to
conclude that he failed to prove he was insane at the time of the offense. In a federal
habeas corpus proceeding, the Supreme Court’s decision in Jackson v. Virginia, 443 U.S.

2

In support of his claim, the petitioner also cites Jones v. United States, 526 U.S. 227 (1999) and Ring v.
Arizona, 536 U.S. 584 (2002); however, these cases also did not address the constitutionality of nonunanimous jury verdicts.

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307 (1979) provides the standard for testing the sufficiency of the evidence. The question
“is whether, after viewing the evidence in the light most favorable to the prosecution, any
rational trier of fact could have found the essential elements of the crime beyond a
reasonable doubt.” Id. at 319.
In Louisiana, a criminal defendant is presumed to be sane and responsible for his
actions.

See Louisiana Revised Statute 14:432, and State v. Peters, 94-0283 (La.

10/17/94), 643 So.2d 1222, 1225. The defendant may rebut this presumption based on
a preponderance of the evidence. See Louisiana Code of Civil Procedure article 652 and
State v. Silman, 95-0154 (La. 11/27/95), 663 So.2d 27, 32. “Legal insanity is proved if
the circumstances indicate that a mental disease or mental defect rendered the offender
incapable of distinguishing between right and wrong with reference to the conduct in
question.” Peters, 643 So.2d at 1225. In light of Louisiana law on the issue of insanity,
the question under the Jackson sufficiency standard is whether, viewing the evidence in
the light most favorable to the state, any rational trier of fact could have found beyond a
reasonable doubt that the Petitioner did not prove by a preponderance of the evidence
that he was insane at the time of the offense. Id.
The state appellate court invoked the Jackson standard in the Petitioner’s direct
appeal. The Court now must determine whether that court’s application of that standard
was objectively unreasonable.
At trial, Drs. Deland, Zimmerman, and Blanche, witnesses for the defense, opined
that the Petitioner suffered from post traumatic stress disorder (“PTSD”) due to his military
service in Iraq, and due to the symptoms of the disease, was unable to distinguish right
from wrong at the time of the offense. Dr. Hoppe, a witness for the State, opined that the
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Petitioner did not necessarily suffer from PTSD, and that the Petitioner had recounted to
him that he typically played Nintendo and watched television in Iraq as his desk job
consisted primarily of answering a phone. During his first deployment, the Petitioner’s
only involvement with combat was hearing gunfire inside a mosque. During his second
deployment, the Petitioner reported that he was shot at. As such, Dr. Hoppe questioned
whether the Petitioner’s combat experiences met the guidelines for PTSD. Dr. Hoppe
opined that the Petitioner did not have a break with reality. Rather, the Petitioner was
angry and vengeful due to his obsession with S.D.
While the testimony of an expert cannot be arbitrarily ignored, material variations
between expert themselves create an issue of credibility for the jury to decide what weight
is to be given to the expert testimony, with due consideration being given to the fact that
the trier of fact has the opportunity to observe the witness. See Mims v. U.S., 375 F.2d
135, 14-144 (5th Cir. 1967). As noted by the appellate court, Dr. Hoppe’s testimony was
contrary to that of Drs. Deland, Zimmerman, and Blanche, and the jury apparently
credited this testimony, and the testimony of other state witnesses concerning the
Petitioner’s actions at the time of the offense, which the jury was free to do. A jury’s
finding of facts will be overturned only when necessary to preserve the “fundamental
protection of due process of law.” Jackson, 443 U.S. at 319. No such protection is
warranted in the instant matter.
Claim 3: Ineffective Assistance of Counsel
The Petitioner asserts that his counsel was ineffective for failing to request a sanity
commission and failing to object to a jury instruction. A habeas Petitioner who asserts
that he was provided with ineffective assistance of counsel must affirmatively
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demonstrate (1) that his counsel’s performance was “deficient”, i.e., that counsel made
errors so serious that counsel was not functioning as the “counsel” guaranteed the
defendant by the Sixth Amendment; and (2) that the deficient performance prejudiced his
defense, i.e., that counsel’s errors were so serious as to deprive the defendant of a fair
trial, a trial in which the result is reliable. Strickland v. Washington, 466 U.S. 668, 687
(1984). The Petitioner must make both showings in order to obtain habeas relief based
upon the alleged ineffective assistance of counsel. Id.
To satisfy the deficiency prong of the Strickland standard, the Petitioner must
demonstrate that his counsel’s representation fell below an objective standard of
reasonableness as measured by prevailing professional standards. See, e.g., Martin v.
McCotter, 796 F.2d 813, 816 (5th Cir. 1986). The reviewing court must indulge a strong
presumption that counsel’s conduct fell within the wide range of reasonable professional
competence and that, under the circumstances, the challenged action might be
considered sound trial strategy. See, e.g., Bridge v. Lynaugh, 838 F.2d 770, 773 (5th Cir.
1988). This Court, therefore, must make every effort to eliminate the distorting effects of
hindsight and to evaluate the conduct from counsel’s perspective at the time of trial.
Martin v. McCotter, supra, 796 F.2d at 817. Great deference is given to counsel’s
exercise of professional judgment. Bridge v. Lynaugh, supra, 838 F.2d at 773; Martin v.
McCotter, supra, 796 F.2d at 816.
If the Petitioner satisfies the first prong of the Strickland test, his petition
nonetheless must affirmatively demonstrate prejudice resulting from the alleged errors.
Earvin v. Lynaugh, 860 F.2d 623, 627 (5th Cir. 1988). To satisfy the prejudice prong of
the Strickland test, it is not sufficient for the Petitioner to show that the alleged errors had
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some conceivable effect on the outcome of the proceeding. Strickland v. Washington,
supra, 466 U.S. at 693. Rather, the Petitioner must show a reasonable probability that,
but for counsel’s alleged errors, the result of the proceeding would have been different.
Martin v. McCotter, supra, 796 F.2d at 816. The habeas Petitioner need not show that
his counsel’s alleged errors “more likely than not” altered the outcome of the case; he
must instead show a probability that the errors are “sufficient to undermine confidence in
the outcome.” Id. at 816-17. Both the Strickland standard for ineffective assistance of
counsel and the standard for federal habeas review of state court decisions under 28
U.S.C. § 2254(d)(1) are highly deferential, and when the two apply in tandem, the review
by federal courts is “doubly deferential.” Knowles v. Mirzayance, 556 U.S. 111, 123
(2009). The above showing is one that the Petitioner cannot make in the instant case.
Claim 3(a): Failure to Request a Competency Hearing
and Claim 3(b): Failure to Present a Defense
The Petitioner alleges that his trial counsel was ineffective for failing to request a
sanity commission to assess his capacity to understand the proceedings since the
Petitioner had been prescribed medications for depression, anxiety, and to aid in sleeping
at the time of trial. The Petitioner presents no evidence that he was actually incompetent
to stand trial. Rather he merely points to the testimony of Dr. Blanche regarding his
mental illness to suggest incompetency during trial. However, Dr. Blanche’s testimony is
devoid of any information as to whether the Petitioner had “sufficient present ability to
consult with his lawyer with a reasonable degree of rational understanding – and whether
he has a rational as well as factual understanding of the proceedings against him.” Dusky
v. United States, 362 U.S. 402 (1960). There is nothing in the record to indicate the
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Petitioner’s demeanor before counsel or the Court was ever questionable. Accordingly,
the failure of the Petitioner’s trial counsel to file a frivolous request for examination by a
sanity commission was neither deficient nor prejudicial. See Mays v. Stephens, 757 F.3d
211, 216 (5th Cir. 2014). Petitioner’s assertion that counsel failed to present a defense
simply repeats this same argument and is therefore rejected for the same reasons set
forth above.
Claim 3(c): Failure to Object
The Petitioner asserts that his trial counsel was ineffective for failing to object to
an erroneous jury instruction. An attorney’s failure to object does not constitute deficient
representation unless there is a sound basis for the objection. Emery v. Johnson, 139
F.3d 191, 198 (5th Cir. 1997). Stated differently, a futile or “meritless objection cannot be
grounds for a finding of deficient performance.” Id.
The Petitioner alleges that the trial court instructed the jury as follows:
“[I]f you find that the state proved beyond a reasonable doubt that
the defendant did commit the offense charged or a responsive verdict
and that the defendant established beyond a preponderance of the
evidence that he was unable to distinguish right from wrong with
respect to the conduct in question at the time of the offense, then
your verdict must be guilty by reason of insanity.”
The Petitioner asserts that his trial counsel should have objected to the jury
instruction since “guilty by reason of insanity” is not a proper responsive verdict. A review
of the record reveals, however, that the trial court actually instructed the jury as follows:
“In this case the defendant has entered a plea of not guilty and not
guilty by reason of insanity. Because of such a plea, you must
determine whether defendant committed the offense charged or an
offense responsive thereto. Unless you find beyond a reasonable
doubt that the defendant committed the offense charged or an
offense responsive thereto, you must find the defendant not guilty. If
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you find beyond a reasonable doubt that the defendant committed
the offense charged or an offense responsive thereto, then you must
determine whether he was insane at the time the offense was
committed…If the circumstances indicate that because of a mental
disease or defect the defendant was incapable of distinguishing
between right and wrong with reference to the conduct in question,
the defendant must be found not guilty by reason of insanity.”
As noted by the Petitioner, pursuant to Louisiana Code of Criminal Procedure
article 816, “not guilty by reason of insanity” is a responsive verdict when a defendant has
pled insanity. Accordingly, there was no sound basis for an objection by the Petitioner’s
trial counsel and the Petitioner’s claim is without merit.
Should the Petitioner pursue an appeal, a certificate of appealability should also
be denied. An appeal may not be taken to the court of appeals from a final order in a
habeas corpus proceeding “unless a circuit justice or judge issues a certificate of
appealability.” 28 U.S.C. § 2253(c)(1)(A). Although the Petitioner has not yet filed a
Notice of Appeal herein, the Court may address whether he would be entitled to a
certificate of appealability. See Alexander v. Johnson, 211 F.3d 895, 898 (5th Cir. 2000).
A certificate of appealability may issue only if a habeas Petitioner has made a substantial
showing of the denial of a constitutional right. 28 U.S.C. § 2253(c)(2). In cases where
the Court has rejected a Petitioner’s constitutional claims on procedural grounds, a
Petitioner must demonstrate that “jurists of reason would find it debatable whether the
petition states a valid claim of a denial of constitutional right and that jurists of reason
would find it debatable whether the district court was correct in its procedural ruling.” Ruiz
v. Quarterman, 460 F.3d 638, 642 (5th Cir. 2006) (emphasis in original). In the instant
case, the Court finds that reasonable jurists would not debate the denial of the Petitioner’s
§ 2254 application or the correctness of the procedural ruling.

Accordingly, it is

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appropriate that, in the event that the Petitioner seeks to pursue an appeal in this case, a
certificate of appealability should be denied.
Accordingly, the Petitioner’s application is DENIED, this proceeding is dismissed
with prejudice, and in the event the Petitioner seeks to pursue an appeal, a certificate of
appealability is also DENIED.
IT IS SO ORDERED.
Signed in Baton Rouge, Louisiana on January 23, 2018.

S

JUDGE SHELLY D. DICK
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA

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