Bates v. Louisiana State Penitentiary

Filing 13

REPORT AND RECOMMENDATION re 1 Petition for Writ of Habeas Corpus filed by Noble Bates: IT IS RECOMMENDED that the petition for writ of habeas corpus be denied and that Petitioner's complaint be dismissed with prejudice. Objections to R&R due by 3/12/2009. Signed by Magistrate Judge Mark Hornsby on 02/23/09. (crt,Cassanova, M)

UNITED STATES DISTRICT COURT W E S T ER N DISTRICT OF LOUISIANA S H R E V EP O R T DIVISION

N O B L E BATES VERSUS W A R D E N LOUISIANA STATE P E N IT E N T IA R Y

C I V I L ACTION NO. 06-cv-0637 J U D G E STAGG M A G I S T R A T E JUDGE HORNSBY

R E P O RT AND RECOMMENDATION I n t r o d u c t io n No ble Bates ("Petitioner") was charged with aggravated criminal damage to property a n d aggravated flight from an officer. A Caddo Parish district judge convicted Petitioner a f t e r a bench trial, and the prosecutor filed a multiple offender bill to enhance the sentences f o r the crimes. Petitioner received a life sentence. He pursued a direct appeal. State v. Bates, 8 5 9 So.2d 841 (La. App. 2d Cir. 2003), writ denied, 874 So.2d 173 (La. 2004). Petitioner t h e n filed a state post-conviction application, which was denied. He now seeks federal h a b e a s corpus relief on three grounds. It is recommended, for the reasons that follow, that t h e petition be denied. Background T h e state appellate court set forth at some length the facts that led to the convictions. Bo th Petitioner and the state refer to or adopt those facts, and there is no significant dispute a b o u t their accuracy. Accordingly, the summary of the facts set forth below is based largely upo n the state appellate court's decision.

P e t i ti o n e r was seen shoplifting at the Kroger grocery store on Benton Road in Bossier C ity. Off-duty detective Sam White approached Petitioner, who began fighting White and g r a b b i n g at the officer's firearm. Petitioner freed himself, ran out of the store, and entered his car. When Detective White tried to pull Petitioner from the car, Petitioner jerked White partially into the car. With the door swinging open, Petitioner dragged W h i t e around the store par kin g lot until White was slung off the car. White notified Bossier City Police by pressing an emergency button on his radio. Once p o l i c e arrived, Petitioner stopped his car, observed the officers for a moment, and then r am m e d into one of the police cars. A car chase ensued, beginning on Benton Road and p r o c e ed i n g onto I-20 across the Red River into Shreveport. The Shreveport Police D e p a r t m e n t picked up the pursuit through the downtown and Allendale areas. P e t i ti o n e r drove recklessly, running several stop signs and red lights. He crossed over y e ll o w lines and drove across medians. He drove up to 70 miles per hour in residential n e i g h b o r h oo d s . When Petitioner approached one Shreveport police car, he slowed down, t h e n accelerated and struck the car, causing the police car to crash into a light pole and injure two officers in the car. T h e chase continued up Milam Street and ended at the intersection of Dowling and P a t z m a n Streets, where Shreveport Police Officer Peters was standing. Peters attempted to f l a g down Petitioner. During that time, children were crossing the intersection. Peters b l o c k e d part of the intersection with his car, but he left a portion of the intersection open as

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a n avenue of escape for Petitioner, in the hope that, if Petitioner did not stop, at least he wo uld not strike any children with his car. Upon reaching Peters, Petitioner accelerated his c a r toward Peters and the children. Peters drew his weapon and fired three times, striking P e t i ti o n e r once in the leg. Petitioner drove around the corner to Clay Street, where he a b a n d o n e d his car. Police officers apprehended Petitioner after a foot chase. I n e ff e c ti v e Assistance: No Challenge to Prior Convictions T h e state presented evidence at the multiple offender hearing that Petitioner had two p r i o r felony convictions. The first was for issuing worthless checks, based on a 1987 charge. T h e second felony stemmed from a 1996 charge of possession of cocaine. Petitioner was f o u n d to be a third-felony offender and sentenced to life in prison (without benefits) for the a g g r a v a te d criminal damage to property conviction. Petitioner received another two years ( c o n c u r re n t ) for the aggravated flight from an officer conviction. P e t i ti o n e r argued in his post-conviction application, as he does in his federal petition, t h a t his counsel at the multiple offender hearing was ineffective because he did not challenge t h e prior convictions. Petitioner acknowledges the holding in Lackawanna County District A t t o r n e y v. Coss, 121 S.Ct. 1567 (2001) that habeas relief is not available to a state prisoner w h e n he challenges a current sentence on the ground that it was enhanced based on an allege dly unconstitutional prior conviction for which the prisoner is no longer in custody, u n l e s s counsel was not appointed in connection with the prior conviction. That rule may not directly limit an ineffective assistance claim if there were good grounds to challenge the prior

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c o n v i c ti o n s that counsel did not raise in the trial proceedings, but Petitioner has chosen to limit his challenge to counsel's performance in an attempt to fit within the Coss exception. P e t i ti o n e r argues, quite conclusorily, that counsel should have objected to the omission of the p r i o r convictions on the grounds that Petitioner had only "standby counsel" that was the equ ivale nt of no counsel at all when he pleaded guilty to the earlier felonies. Defense counsel did file a general motion to quash the multiple offender bill of i n f o r m a ti o n on the grounds that Petitioner had not been properly advised of his constitutional rights before he entered his prior pleas of guilty. Tr. 479. The judge continued the multiple o f f e n d e r hearing so that counsel could obtain transcripts of those prior guilty pleas from the a r c h i v e s . Tr. 749-54. When the hearing resumed, defense counsel stated that he did obtain a copy of both transcripts, which he filed in the record. Counsel stated that he had "reviewed both transcripts and they appear to me to be constitutionally sound which would make the mo tion to quash moot." Tr. 759-60. The court has not been able to locate the actual transcripts in the record, but it is not u n c o m m o n for the state court exhibits to not be included in the record transmitted to this cour t. The minutes related to the prior charges are in the record, as they were attached to a discovery response served by the state. The minutes show that Petitioner was charged in 1 9 8 7 with issuing worthless checks. Tr. 468. The court appointed counsel at the first a p p e a r a n c e . Petitioner then appeared in court with counsel on several occasions for various p r o c e ed i n g s . The minutes show that Petitioner, "present in court with counsel," pleaded

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guilty after the court informed him of his rights per Boykin v. Alabama. Petitioner was also rep rese nted by counsel at sentencing. Tr. 472-73. Petitioner was charged in 1996 with possession of cocaine. Tr. 466. The minutes s h o w that Petitioner was appointed counsel at his first appearance. His attorney filed a mo tio n for discovery. Soon afterward, Petitioner was "present with his counsel, Laura W ing ate," when Petitioner elected to plead guilty after being informed of his constitutional rights per Boykin. Tr. 467. T o prevail on a claim of ineffective assistance of counsel, Petitioner must show both d e f i c ie n t performance and prejudice. Strickland v. Washington, 104 S.Ct. 2052 (1984). P r e j u d i c e exists only if there is a reasonable probability that, but for the error, the result of t h e trial would have been different. Id. at 2068. The state trial court and appellate court d e n i e d this claim rather summarily. Tr. 936-38, 1006. The Supreme Court of Louisiana den ied a writ application without comment. Tr. 1114. The test for habeas purposes is not whether a petitioner made the showing required u n d e r Strickland. The test is whether the state court's decision ­ that the petitioner did not m a k e the Strickland showing ­ was contrary to, or an unreasonable application of, the s t a n d a rd s provided by Strickland's clearly established federal law. Williams v. Taylor, 120 S.C t. 1495 (2000); Henderson v. Quarterman, 460 F.3d 654, 665 (5th Cir. 2006). P e t i ti o n e r has not demonstrated that his prior convictions were gained in violation of his Sixth Amendment right to counsel. The minutes discussed above show that Petitioner

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w a s represented by counsel at all relevant times. Petitioner offers nothing more than a concluso ry assertion that he had only "standby counsel," but there are no facts to support that s u g g e s t io n . Standby counsel are sometimes appointed when a defendant insists upon selfr e p r e se n t a ti o n pursuant to Faretta, but the court is willing to provide a standby counsel to a s s i s t if needed. See McKaskle v. Wiggins, 104 S.Ct. 944 (1984). There is absolutely no hint in the record that this was the situation at any prior conviction. Petitioner also makes r e f e r e n c e to Childress v. Johnson, 103 F.3d 1221 (5th Cir. 1997), which addressed some guilty pleas taken in Texas in 1946 and 1948 under a pre-Gideon practice in which counsel w a s appointed but only to execute a waiver of the right to a jury trial. The courts accepted t h o s e facts and determined that the lawyer "standing in" for Childress had provided little or n o assistance. The Fifth Circuit held that Childress was constructively denied his right to c o u n s e l on the earlier convictions, and the Court made special note of the "unusual c i r c u m s t a n c e s " of the case, including "the state court's determination that counsel in fact did not hin g" to represent Childress' interest. Id. at 1231-32. There is no similarity between the unusual facts in Childress and those in this case. Petitioner's argument should be rejected, just as the court did in Staley v. Cockrell, 2003 WL 2 1 7 8 2 1 9 8 (M.D. Tex. 2003) when a petitioner attempted to apply Childress beyond its u n i q u e facts. There is no reason to believe that appointed counsel in Petitioner's fairly recent c a s e s did not perform their roles as advocates for the defense. Petitioner's claim that counsel did virtually nothing, like the 1940's attorneys in Texas, is a speculative and conclusory claim

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with no factual support. Such claims, whether raised under Section 2254 or Section 2255, do merit a hearing or any further proceedings. U.S. v. Edwards, 442 F.3d 258 n.10 (5th Cir. 200 6); Johnson v. Scott, 68 F.3d 106, 112 (5th Cir.1995). I n e f f e ct i v e Assistance: No Objection to Evidence A t the multiple offender hearing, the state produced copies of the prior bills of i n f o r m a ti o n . Sgt. Owen M cD onn ell took a set of Petitioner's fingerprints at the hearing. He t h e n compared the prints to those on the earlier bills of information, and he testified that the prints came from the same person. Tr. 760-68. Counsel did not object to the state's a d m i s s io n of the exhibits. Tr. 767. P e t i ti o n e r now argues that counsel should have objected to the admission of the bills o f information. Petitioner suggests that counsel should have insisted that the state call a w i t n e s s from the clerk of court's office or otherwise authenticate the documents. The state tria l court and appellate court denied the claim summarily, with the appellate court noting t h a t Petitioner has not indicated why the documents should not have been admitted. T r. 1006. The record reflects that counsel was diligent in reviewing the records of the prior p r o c e e d in g s for any errors, going so far as to request and receive a continuance to retrieve docu men ts from the archives. Counsel was undoubtedly satisfied that the documents were a u t h e n ti c , so he did not waste the time of the court (not the best strategy immediately before s e n t e n c in g ) by raising a meritless objection. Of course, failure to raise meritless objections is not ineffective assistance. Clark v. Collins, 19 F.3d 959, 966 (5th Cir. 1994). Petitioner

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h a s yet to show that such an objection would have done anything but slow the hearing, with t he same result in the end. There is no basis for habeas relief with respect to this claim. It bears noting that Petitioner represents in his petition that Sgt. McDonnell was asked d u r i n g the hearing to identify Exhibit 3, which Petitioner says was a certified copy of the bill o f information for the worthless checks conviction. Petitioner states that McDonnell said he could not identify the exhibit. Exhibit 3 was the minutes related to that charge, not the bill. Exh ibit 2 was the bill of information that bore Petitioner's fingerprints, and Sgt. McDonnell t e s ti f i ed that the prints on Exhibit 2 came from the "same individual" that he fingerprinted in the courtroom. Tr. 764-65. The record indicates that Petitioner's statement is false. Ineffective Assistance: Special Charges P e t i ti o n e r was convicted of aggravated criminal damage to property, which La.R.S. 1 4 : 5 5 defines as "the intentional damaging of any ... movable; wherein it is foreseeable that h u m a n life might be endangered, by any means other than fire or explosion." Petitioner was a l s o convicted of aggravated flight from an officer, which La.R.S. 14:108.1 defines as the " i n t en t i o n a l refusal of a driver to bring a vehicle to a stop, under circumstances wherein h u m a n life is endangered," after the police have properly signaled the person for a lawful s t o p , using a siren and lights. The statute adds that circumstances where human life is e n d a n g e r e d shall be any situation where the operator of the fleeing vehicle commits at least two of the following acts: (1) Le av es the roadway or forces another vehicle to leave the roadway.

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(2) (3) (4)

C o l l i d es with another vehicle. E x cee d s the posted speed limit by at least twenty-five miles per hour. T r a v e l s against the flow of traffic.

P e t i ti o n e r argued in his post-conviction application that counsel was ineffective b e c a u s e he did not move the court for a "special written charge" that would have acquitted P e t i ti o n e r of aggravated criminal damage to property. Petitioner says counsel should have a s k e d the court to charge itself (in the bench trial) that, due to the circumstances of the case a n d the evidence presented, Petitioner was guilty of only aggravated flight from an officer. T r. 888. The state appellate court, the last court to address the issue, wrote that Petitioner " h a s not shown how the trial counsel erred in failing to seek that special charge to the court o r , if it was an error, how the outcome of the trial would have been different." Tr. 1006. T here were no written charges in this bench trial. It appears that Petitioner is arguing t h a t his counsel should have been able to convince the court that the facts or law did not perm it a conviction for aggravated criminal damage to property. With respect to the facts, P e t i ti o n e r says that it was his intention to avoid arrest for shoplifting, not to damage property. T h e state appellate court considered a sufficiency of the evidence argument on direct appeal t h a t presented this issue. It noted that Officer Cole testified that Petitioner intentionally r a m m e d , at an accelerated speed, the police car in which two officers were riding. Those two officers also testified about the collision and their injuries. Thus, there was sufficient e v i d e n c e to support the conviction. State v. Bates, 859 So.2d at 845. That conclusion is well

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s u p p o r t ed , so there is no basis to find that counsel was ineffective for not being able to argue his way around those rather devastating facts. Petitioner does not use the term double jeopardy in his federal argument, but his a r g u m e n t does touch on a double jeopardy issue that counsel raised in a post-trial motion. C o u n s e l argued that the two convictions were based on the same transaction, the collision with the police car. The state appellate court noted that causing a collision is one of the four a g g r a v a ti n g factors for a conviction of aggravated flight from an officer, but there was proof t h a t Petitioner committed all four aggravating elements so that proof of the collision was not n e c e s s a ry to support the conviction. Each of the relevant statutes included an element that t h e other did not, so both the federal test under Blockburger v. U.S., 52 S.Ct. 180 (1932) and t h e Louisiana law "same evidence" test were satisfied. State v. Bates, 859 So.2d at 848-49. P e t i ti o n e r has not directly attacked that conclusion, and he certainly has not demonstrated t h a t counsel was ineffective in this regard because counsel did pursue the issue, albeit uns ucc essf ully. Accordingly; I T IS RECOMMENDED that the petition for writ of habeas corpus be denied and t h a t Petitioner's complaint be dismissed with prejudice. O b j e c t io n s U n d e r the provisions of 28 U.S.C. § 636(b)(1)(C) and Fed. R. Civ. P. 72(b), parties a g g r i e v ed by this recommendation have ten (10) business days from service of this report and

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recom men dati o n to file specific, written objections with the Clerk of Court, unless an e x t e n s io n of time is granted under Fed. R. Civ. P. 6(b). A party may respond to another party's objections within ten (10) days after being served with a copy thereof. Counsel are d i r e c te d to furnish a courtesy copy of any objections or responses to the District Judge at the t i m e of filing. A party's failure to file written objections to the proposed findings, conclusions and r e c o m m e n d a t i o n set forth above, within 10 days after being served with a copy, shall bar that pa rty, except upon grounds of plain error, from attacking on appeal the unobjected-to p r o p o s e d factual findings and legal conclusions accepted by the district court. See Douglass v . U.S.A.A., 79 F.3d 1415 (5th Cir. 1996) (en banc). THUS DONE AND SIGNED in Shreveport, Louisiana, this 23rd day of February, 200 9.

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