Opinion
Civil Action 23-6735
07-17-2024
MAURICE ANDERSON v. STATE OF LOUISIANA, WARDEN TIM HOOPER
SECTION “I” (4)
REPORT AND RECOMMENDATION
KAREN WELLS ROBY, UNITED STATES MAGISTRATE JUDGE.
This matter was referred to a United States Magistrate Judge to conduct hearings, including an evidentiary hearing if necessary, and to submit proposed findings and recommendations pursuant to 28 U.S.C. § 636(b)(1)(B) and (C), and as applicable, Rule 8(b) of the Rules Governing Section 2254 Cases. Upon review of the entire record, the Court has determined that this matter can be disposed of without an evidentiary hearing. See 28 U.S.C. § 2254(e)(2) (2006).
The State Court Record was electronically filed by the State at Rec. Doc.16 in parts Nos. 16-1 through 1615, and Rec. Doc. 26. The records, however, found at Rec. Doc.16-13 at 36-251 and Rec. Doc.16-14 at 1-9, are not related to this case.
Under 28 U.S.C. § 2254(e)(2), an evidentiary hearing is held only when the petitioner shows that either the claim relies on a new, retroactive rule of constitutional law that was previously unavailable or a factual basis that could not have been previously discovered by the exercise of due diligence and the facts underlying the claim show by clear and convincing evidence that, but for the constitutional error, no reasonable jury would have convicted the petitioner.
I. Factual Background
The petitioner, Maurice Anderson (“Anderson”), is a convicted inmate incarcerated in the Elayn Hunt Correctional Center in St. Gabriel, Louisiana. On August 27, 2012, Anderson and codefendant Brandon Deanthony Cyprian (“Cyprian”) were charged in a three count Indictment by a Tangipahoa Parish Grand Jury. Count one charged both men with the aggravated burglary of the home belonging to W.N. Anderson was charged in count two with aggravated battery of Deputy Scott Jarreau. Count three charged Cyprian with the simple rape of I.N. Anderson entered a plea of not guilty to the charges on September 5, 2012. On April 8, 2013, count one was amended to charge Anderson with theft of more than $1500 belonging to W.N. and C.N.
Rec. Doc.16-1 at 129, Indictment, 8/27/12.
Id. Pursuant to La. Rev. Stat. Ann. § 46:1844(W)(1)(a), the state courts refer to the victims and family members by their initials because of the sex crime charged in the indictment. This Court will do the same.
Id.
Id.
Rec. Doc. 16-1 at 1, Minute Entry, 9/5/12.
Rec. Doc. 16-2 at 59, Amended Bill of Indictment, 4/8/13.
The record reflects that, on April 30, 2012, a burglary was reported at the residence of W.N. and his wife, C.N., in Loranger, Louisiana. The missing items included a 55-inch flatscreen television, an over 40-inch flat-screened television, and C.N.'s jewelry box and its contents. Also taken were several guns stored in a gun cabinet, including a Ruger mini 14, a Remington .22 model 522, a 20-gauge single barrel shotgun, a .410 shotgun, and two Ruger Black Hawk pistols.
The facts were taken from the unpublished opinion of the Louisiana First Circuit Court of Appeal on direct appeal. State v. Anderson, No. 2015-KA-1043, 2016 WL 759166, at *1-2 (La.App. 1st Cir. 2016).
W.N. initially reported that I.N., his mentally challenged 21-year-old daughter, told him that she went for a walk and the house was burglarized while she was gone. I.N. later denied saying that and indicated that she was sitting under the carport when two men, later identified as Anderson and Cyprian, arrived at the home in a black car. The two men asked about buying pit bull puppies and asked if she knew anyone who had some for sale. I.N. told them no, and the men backed the car out of the driveway. The car then suddenly pulled back under the carport. Anderson asked I.N. if he could use the bathroom, and she told him that he could use the outdoor facilities.
I.N. then went inside the house, and Anderson and Cyprian followed her without her permission. Anderson began looking around the house as he went to find the indoor bathroom. Cyprian talked with I.N. while Anderson was in the bathroom. When Anderson came back, Cyprian had Anderson act as a lookout while Cyprian took I.N. into a bedroom to have sex.
When I.N. came out of her bedroom, she noticed that items were missing. She called her mother, C.N., who in turn called W.N. He called the police and went to the house, arriving before the police. C.N. also returned home and arrived after the police.
Later that day, the police responded to a dispatch about a man in a black car attempting to sell a large flat-screened television. As Deputy Scott Jarreau joined the pursuit of the car at Hood Road, the car crossed into his lane, colliding into his unit. Deputy Jarreau's knee was injured during the collision. The black car, driven by Anderson with Cyprian as a passenger, veered into a ditch where it stopped. After a foot pursuit, Anderson was placed under arrest.
On August 19, 2013, the cases against Anderson and Cyprian were severed and the Indictment was amended again to change count one as to Cyprian to possession of stolen property. Cyprian pled guilty to possession of stolen goods and was sentenced to ten years.
Rec. Doc.16-2 at 59, Amended Indictment, 4/8/13 (handwritten notes dated 8/19/13).
See Rec. Doc.16-4 at 69, 71, 74, Trial Transcript (con't), 10/21/14.
On July 9, 2014, Anderson was granted leave to represent himself, assisted by stand-by counsel. He was tried before a jury on October 21 and 22, 2014, and found guilty of theft valued more than $1500 and simple battery. At an October 29, 2014, hearing, the state trial court denied Anderson's counsel-filed motions for new trial and for post-verdict judgment of acquittal. On October 29, 2014, the court sentenced Anderson to serve consecutive sentences of ten years in prison at hard labor for theft and six months in prison for simple battery. The court later denied the motions to reconsider the sentence filed by Anderson and his counsel. On January 7, 2015, the State filed a multiple offender bill charging Anderson as a fourth felony offender.
Rec. Doc.16-1 at 5, Minute Entry, 7/9/14.
Id. at 6-7, Trial Minutes, 10/21/14; id. at 7-8, Trial Minutes, 10/22/14; Rec. Doc.16-4 at 81-82, Jury Verdict (count one), 10/22/14; id. at 83-84, Jury Verdict (count two), 10/22/14; Rec. Doc.16-2 at 230-50, Trial Transcript, 10/21/14; Rec. Doc.16-3 at 1-145, Trial Transcript (con't), 10/21/14; Rec. Doc.16-4 at 1-80, Trial Transcript (con't), 10/21/14; id. at 85-105, Trial Transcript, 10/22/14; Rec. Doc.16-5 at 1-39, Trial Transcript, 10/22/14 (con't).
Rec. Doc.16-1 at 8, Minute Entry, 10/29/14; Rec. Doc.16-5 at 41, Motion for New Trial, 10/24/14; id. at 42, Motion for Judgment of Acquittal, 10/24/1; Rec. Doc.16-5 at 43-52, Hearing Transcript, 10/24/14.
Id. at 8, Sentencing Minutes, 11/25/14; id. at 9, Amended Sentencing Minutes, 5/18/15; Rec. Doc.16-5 at 53, Uniform Commitment Order, 11/25/14; id. at 54-58, Sentencing Transcript, 11/25/14; id. at 131, Amended Uniform Commitment Order, 5/18/15.
Rec. Doc. 16-5 at 61, Trial Court Order, 12/19/14; id., Motion for Reconsideration of Sentence, 12/10/14; id. at 64, Trial Court Order, 1/7/15; id. at 63-64, Pro Se Motion to Reconsider Sentence, 12/29/14 (dated 12/20/14).
Rec. Doc. 16-6 at 69-89, Multiple Bill, 1/7/15; Rec. Doc. 16-1 at 8, Hearing Minutes, 1/7/15.
On direct appeal, Anderson's appointed counsel argued that Anderson's right to a speedy trial under the Sixth Amendment was violated. On February 24, 2016, the Louisiana First Circuit affirmed the convictions and sentences finding the claim meritless.
See Anderson, 2016 WL 759166 at *2.
Id. at *1.
The State filed an amended multiple offender bill on May 9, 2016. After hearings held May 9 and 16, 2016, the state trial court adjudicated Anderson as a fourth felony offender. The court resentenced him as a habitual offender to serve 60 years in prison without benefit of probation or suspension of sentence. The court also denied Anderson's motion to reconsider the sentence.
Rec. Doc.16-6 at 104-124, Amended Multiple Bill, 5/9/16.
Rec. Doc.16-1 at 11, Hearing Minutes, 5/9/16; id. at 11-12, Multiple Offender Sentencing Minutes, 5/16/16; Rec. Doc.16-6 at 141-209, Hearing Transcript, 5/9/16; id. at 214-26, Multiple Offender Sentencing Transcript, 5/16/16.
Id. at 11-12, Multiple Offender Sentencing Minutes, 5/16/16; id. at 12, Minute Entry, 7/19/16 (amending the sentencing minutes); ECF 16-6 at 231, Uniform Commitment Order, 7/19/16; id. at 213, Trial Court Reasons, 5/16/16.
See State v. Anderson, No. 2016-KA-1191, 2017 WL 658782, at *1, *7-8 (La.App. 1st Cir. 2017); Rec. Doc. 16-8 at 169, La.App.1st Cir. Opinion, 2016 KA 1191, 2/17/17.
On appeal to the Louisiana First Circuit from the habitual offender sentencing, Anderson's appointed counsel filed a brief which included a request for an errors patent review, a motion to withdraw as counsel, and a statement indicating that counsel had found no non-frivolous appealable issue in connection with Anderson's habitual offender proceeding pursuant to Anders v. California, 386 U.S. 738 (1967), and related state case law. Anderson filed a pro se brief asserting the following errors: (1) the state trial court failed to specify the predicate convictions relied upon; (2) the prosecution failed to timely file the multiple bill; (3) the sentence imposed is excessive; (4) insufficient evidence supported the habitual offender adjudication; and (5) appellate counsel was ineffective for filing a brief without reviewing the transcripts of the underlying convictions.
Rec. Doc. 16-15 at 268-70, Motion to Withdraw as Counsel, 2016 KA 1191, 9/29/16; id. at 271-79, Anders Brief, 2016-KA-1191, 9/16.
Rec. Doc. 16-15 at 246-66, Pro Se Brief, 2016 KA 1191, 11/29/16.
On February 17, 2017, the Louisiana First Circuit granted counsel's motion to withdraw and affirmed the habitual offender adjudication and sentence, finding no merit in Anderson's claims. On February 1, 2018, the Louisiana Supreme Court denied Anderson's related writ application without stated reasons. The United States Supreme Court denied Anderson's petition for writ of certiorari on October 1, 2018.
Anderson, 2017 WL 658782, at *1, *7-8; Rec. Doc. 16-8 at 168-74, La.App.1st Cir. Opinion, 2016 KA 1191, 2/17/17.
State v. Anderson, 237 So.3d 512 (La. 2018); Rec. Doc. 16-8 at 127-30, La. S.Ct. Order, 2017-KO-0671, 2/2/18.
Anderson v. Louisiana, 139 S.Ct. 145 (2018); Rec. Doc. 16-8 at 192-240, Petition for Writ of Certiorari,17-9274, 6/4/18.
In the interim, on November 3, 2016, Anderson signed and submitted an application for post-conviction relief in the state trial court asserting the following grounds for relief: (1) the evidence was insufficient to support the theft conviction; (2) the state trial court erred in allowing other crimes testimony to be presented to the jury; (3) counsel provided ineffective assistance by failing to move for a mistrial when the other crimes testimony was presented by the State, including reference to the alleged rape that occurred during the theft; (4) the trial court erred when it denied the motion to suppress identification, and appellate counsel was ineffective for failing to assert this claim on appeal; (5) the court should conduct a cumulative review of these claims; and (6) trial counsel was ineffective for failing to file a motion to quash the defective amended indictment where the amended count one did not allege an intent to permanently deprive the owner of the items taken.
Rec. Doc. 16-6 at 238-52, Application for Post-Conviction Relief, 11/15/16 (dated 11/3/16); Rec. Doc. 167 at 1-22, Application for Post-Conviction Relief (con't), 11/15/16 (dated 11/3/16).
On September 21, 2017, Anderson supplemented his post-conviction application to assert two claims. He alleged in “combined claims” seven and eight that the State knowingly presented and did not correct the perjured and misleading testimony of I.N. and co-defendant Cyprian, and that his trial counsel was ineffective for failing to publish to the jury Cyprian's prior recorded contradictory statement to police.
Rec. Doc. 16-8 at 94-106, Supplement to Application, 9/27/17 (dated 9/21/17).
Id.
On November 14, 2017, the state trial court denied Anderson's application without stated reasons. The Louisiana First Circuit denied Anderson's related writ application without stated reasons on May 28, 2018. The Louisiana Supreme Court also denied Anderson's subsequent writ application on May 28, 2019, finding that Anderson's failed to prove he received ineffective assistance of counsel under Strickland v. Washington, 466 U.S. 668 (1984), and failed to meet his burden of proof on his other claims.
Rec. Doc. 16-8 at 117, Minute Entry, 11/14/17.
State v. Anderson, No. 2018-KW-0277, 2018 WL 2458856, at *1 (La.App. 1st Cir. 2018); Rec. Doc. 168 at 131, La.App.1st Cir. Order, 2018 KW 0277, 5/29/18.
State v. Anderson, 273 So.3d 1208 (La. 2019); Rec. Doc. 16-11 at 4-5, La. S.Ct. Order, 2018-KH-1168, 5/28/19.
While those matters were pending, on July 18, 2018, Anderson filed a counseled motion to correct his multiple offender sentence as illegal. Anderson filed a pro se motion to correct illegal sentence on August 24, 2018, which the state trial court denied on September 10, 2018, because it raised the same issues as those in motion filed by Anderson's counsel. On February 19, 2019, the Louisiana First Circuit denied Anderson's writ application related to his pro se motion, finding no error in the trial court's ruling.
Rec. Doc. 16-8 at 140-45, Motion to Correct Illegal Sentence, 7/18/18.
Rec. Doc. 16-9 at 16-19, Pro Se Motion to Correct Illegal Sentence, 9/6/18 (dated 8/24/18); id. at 20, Order, 9/10/18; see ECF 16-10 at 28, Memorandum in Opposition to Defendant's Motion for Resentencing under La. R.S. art. 15:529.1 or Motion to Correct Illegal Sentence, 3/11/19.
State v. Anderson, 2018 KW 1698, 2019 WL 669501 (La.App. 1st Cir. 2019); Rec. Doc. 16-9 at 63, La.App.1st Cir. Order, 2018 KW 1698, 2/19/19; Rec. Doc. 16-10 at 30-47, La.App.1st Cir. Writ Application, 11/20/18.
The state trial court held a hearing on the motion by Anderson's counsel to correct sentence on February 13, 2019 and took the mater under advisement. On March 11, 2019, the State urged denial of the motion in light of the Louisiana First Circuit's ruling. Anderson, through counsel, argued that the state trial court was without jurisdiction to hear the motion until the Louisiana Supreme Court ruled on his writ application relating to his pro se motion. The Louisiana Supreme Court, on November 25, 2019, granted Anderson's related writ application and remanded the matter to the state trial court for a new habitual offender adjudication.
See ECF 16-10 at 28, Memorandum in Opposition to Defendant's Motion for Resentencing under La. R.S. art. 15:529.1 or Motion to Correct Illegal Sentence, 3/11/19.
Id. at 28-29.
ECF 16-10 at 49-50, Reply to State's Memorandum in Opposition, 3/18/19.
State v. Anderson, 283 So.3d 488, 489 (La. 2019); Rec. Doc. 16-11 at 7-8, La. S.Ct. Order, 2019-KK-00442, 11/25/19; Rec. Doc. 16-10 at 52-119, La. S.Ct. Writ Application, 19 KK 442, 3/18/19.
On December 5, 2019, Anderson's counsel filed a motion to schedule his case for sentencing in accordance with the Louisiana Supreme Court's directive. On January 28, 2020, the State filed an amended multiple bill. Anderson filed a motion to quash.
Rec. Doc. 16-11 at 10-11, Motion to Place Matter on Calendar, 12/5/19.
Rec. Doc. 16-11 at 30-50, Information to Establish Defendant's Status as a Habitual Offender, 1/28/20.
Rec. Doc. 16-12 at 60-67, Defendant's Motion to Quash Multiple Bill, 7/15/20.
Due to the COVID-19 Pandemic and Anderson's objection to a habitual offender hearing being held via teleconference, the state trial court did not hold an evidentiary hearing until January 3, 2022. The state trial court denied Anderson's motion to quash at the hearing. On March 7, 2022, the state trial court found Anderson to be a fourth habitual offender and sentenced him to twenty years at hard labor.
Rec. Doc. 16-1 at 15-16, Minute Entry, 1/3/22; Rec. Doc. 16-14 at 232-50, Habitual Offender Hearing Transcript, 1/3/22; Rec. Doc. 16-15 at 1-59, Habitual Offender Hearing Transcript (con't), 1/3/22; Rec. Doc. 16-12 at 50-51, Motion Objecting to Habitual Offender Hearing Being Conducted Via Videoconference and Motion to Continue Hearing Until Court is Open to the Public and Mr. Anderson Can Appear in Person, 7/10/20.
Rec. Doc. 16-15 at 56, Habitual Offender Hearing Transcript (con't), 1/3/22.
Id. at 16-17, Minute Entry, 3/7/222; Rec. Doc. Rec. Doc. 16-15 at 63-76, Habitual Offender Sentencing Hearing Transcript, 3/7/22; Rec. Doc. 16-14 at 217-18, Multiple Offender Written Reasons Per La. R.S. 15:529.1D(3), 3/7/22; id. at 223, Uniform Commitment Order, 3/15/22.
On December 22, 2022, the Louisiana First Circuit Court of Appeals affirmed Anderson's sentence. On September 6, 2023, the Louisiana Supreme Court denied Anderson's related writ application without assigning reasons.
State v. Anderson, 357 So.3d 845 (La.App. 1st Cir. 2022); Rec. Doc.16-15 at 92-106, La.App.1st Cir. Opinion, 2022 KA 0587, 12/22/22.
State v. Anderson, 369 So.3d 1267 (La. 2023).
In the interim, on January 28, 2021, Anderson filed a habeas petition. On July 7, 2021, Anderson's petition was dismissed without prejudice as premature.
Rec. Doc. 16-12 at 187-250, Petition under 28 U.S.C. § 2254 for Writ of Habeas Corpus by a Person in State Custody, 1/28/21; Rec. Doc. 16-13 at 1-32, Petition under 28 U.S.C. § 2254 for Writ of Habeas Corpus by a Person in State Custody (con't), 1/28/21.
Anderson v. Vannoy, No. 21-190, 2021 WL 2822238 (E.D. La. Jul. 7, 2021).
II. Federal Habeas Petition
On November 6, 2023, Anderson filed his petition for federal habeas corpus. Anderson claims: (1)(a) insufficient evidence supports his theft conviction; and (b) ineffective assistance of appellate counsel for failing to raise the issue on appeal; (2) the trial court erred in allowing in other crimes testimony to be presented to the jury; (3) ineffective assistance of counsel in failing to request a mistrial; (4)(a) the trial court erred in denying the motion to suppress identification and (b) ineffective assistance of appellate counsel for failing to assert the issue on appeal; (5) the court should conduct a cumulative review of these claims; (6) ineffective assistance of counsel in failing to file a motion to quash the amended indictment; (7) the State knowingly presented false testimony; and (8) ineffective assistance of counsel in failing to use co-defendant Cyprian's recorded statement and a letter written by him to Anderson to attack his credibility. With regard to his habitual offender adjudication, Anderson additionally claims: (9) ineffective assistance of counsel in failing to challenge the March 29, 1999 predicate conviction as illegal and for failing to require the State to specify which predicate conviction in predicate number one was relied upon for enhancement; (10) the cleansing period for the March 29, 1999 convictions had elapsed prior to the offense in this case; (11) the May 12, 2003 conviction should not have been used to enhance his sentence because his guilty plea was involuntary; (12) the November 5, 2004 conviction should not have been used to enhance his sentence; and (13) his sentence is unconstitutionally excessive.Finally, Anderson includes a request for production of the District Attorney file as well as the statements of I.N. and Cyprian.
Rec. Doc. 5.
Rec. Doc. 5-1 at 8-41, 50-60.
Anderson utilizes the same numbering scheme that he used in his second direct appeal with regard to his habitual offender claims and refers to these claims as one, two, three, four, five. Rec. Doc. 5-1 at 61-86. For ease of reference, the Court continues the sequential numbering scheme from his first eight claims.
Id. at 61-86.
Id. at 42-50.
The State filed a response conceding that Anderson's petition is timely and his claims exhausted. The State argues that the evidence was clearly sufficient to support Anderson's theft conviction and he was not prejudiced by his appellate counsel's failure to raise the issue on appeal. The State argues that the indirect references made by witnesses about an alleged rape and that Anderson had been locked up previously did not play a highly significant role in the trial and that Anderson was not prejudiced by trial counsel's failure to move for a mistrial. The State argues that the identification procedure was not unduly suggestive, the conviction was not based solely on the identification, and counsel was not ineffective for failing to raise the issue on appeal. The State asserts that the foregoing claims are individually meritless and therefore there is nothing to cumulatively review. With regard to Anderson's other ineffective assistance of counsel claims, the State argues that the amended indictment was not defective, counsel was not deficient in failing to move to quash it, and defense counsel's cross-examination of witnesses was strategic. The State asserts that Anderson fails to show any testimony was false. The State asserts that Anderson's claims that attack the validity of predicate convictions are not subject to habeas review.. The State contends that the state courts' finding that the record supported a fourth felony adjudication was not manifestly unreasonable. It argues that Anderson's sentence was the minimum sentence under law and not excessive. Finally, the State contends that Anderson's claim relating to records is not cognizable.
Rec. Doc.17 at 4-6.
Id. at 7-12.
Id. at 12-13.
Id. at 13-17.
Id. at 17-18.
Id. at 18-20, 21-22.
Id. at 20-21.
Id. at 22-24.
Id. at 22-43.
Id. at 24-25.
Id. at 22.
Anderson did not file a reply brief.
III. General Standards of Review
The Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), Pub. L. No. 104132, 110 Stat. 1214, applies to this petition, which was filed in this Court under the mailbox rule on November 6, 2023. The threshold questions on habeas review under the amended statute are whether the petition is timely and whether the claim raised by the petitioner was adjudicated on the merits in state court; i.e., the petitioner must have exhausted state court remedies and the claims must not be in “procedural default.” Nobles v. Johnson, 127 F.3d 409, 419-20 (5th Cir. 1997) (citing 28 U.S.C. § 2254(b), (c)).
The AEDPA comprehensively revised federal habeas corpus legislation, including 28 U.S.C. § 2254, and applied to habeas petitions filed after its effective date, April 24, 1996. Flanagan v. Johnson, 154 F.3d 196, 198 (5th Cir. 1998) (citing Lindh v. Murphy, 521 U.S. 320 (1997)). The AEDPA, signed into law on that date, does not specify an effective date for its non-capital habeas corpus amendments. Absent legislative intent to the contrary, statutes become effective at the moment they are signed into law. United States v. Sherrod, 964 F.2d 1501, 1505 n.11 (5th Cir. 1992).
The Fifth Circuit has recognized that a “mailbox rule” applies to pleadings, including habeas corpus petitions filed after the effective date of the AEDPA, submitted to federal courts by prisoners acting pro se. Under this rule, the date when prison officials receive the pleading from the inmate for delivery to the court is considered the time of filing for limitations purposes. Coleman v. Johnson, 184 F.3d 398, 401 (5th Cir. 1999); Spotville v. Cain, 149 F.3d 374, 378 (5th Cir. 1998); Cooper v. Brookshire, 70 F.3d 377, 379 (5th Cir. 1995). Anderson signed his pleadings on November 6, 2023, which is the earliest date that he could have given his petition to prison officials for mailing.
IV. Standards of a Merits Review
The AEDPA standard of review is governed by § 2254(d) and the Supreme Court's decision in Williams v. Taylor, 529 U.S. 362 (2000). It provides different standards for questions of fact, questions of law, and mixed questions of fact and law.
A state court's determinations of questions of fact are presumed correct and the Court must give deference to the state court findings unless they were based on an unreasonable determination of the facts in light of the evidence presented in the state court proceeding. 28 U.S.C. § 2254(d)(2) (2006); see Hill v. Johnson, 210 F.3d 481, 485 (5th Cir. 2000). The amended statute also codifies the “presumption of correctness” that attaches to state court findings of fact and the “clear and convincing evidence” burden placed on a petitioner who attempts to overcome that presumption. 28 U.S.C. § 2254(e)(1) (2006).
A state court's determination of questions of law and mixed questions of law and fact are reviewed under § 2254(d)(1), as amended by the AEDPA. The standard provides that deference be given to the state court's decision unless the decision is “contrary to or involves an unreasonable application of clearly established federal law” as determined by the United States Supreme Court. Hill, 210 F.3d at 485. The “critical point” in determining the Supreme Court rule to be applied “is that relief is available under § 2254(d)(1)'s unreasonable-application clause if, and only if, it is so obvious that a clearly established rule applies to a given set of facts that there could be no ‘fairminded disagreement' on the question.” White v. Woodall, 572 U.S.415, 134 S.Ct. 1697, 1706-07 (2014) (citing Harrington v. Richter, 562 U.S. 86, 103 (2011)). “Thus, ‘if a habeas court must extend a rationale before it can apply to the facts at hand,' then by definition the rationale was not ‘clearly established at the time of the state-court decision.'” White, 134 S.Ct. at 1706 (quoting Yarborough v. Alvarado, 541 U.S. 652, 666 (2004)).
A state court's decision can be “contrary to” federal law if: (1) the state court arrives at a conclusion opposite to that reached by the Supreme Court on a question of law; or (2) the state court decides a case differently than the Supreme Court has on a set of materially indistinguishable facts. Williams, 529 U.S. at 405-06, 412-13; Penry v. Johnson, 532 U.S. 782, 792-93 (2001); Hill, 210 F.3d at 485. A state court's decision can involve an “unreasonable application” of federal law if it correctly identifies the governing rule but then applies it unreasonably to the facts. White, 134 S.Ct. at 1706-07; Williams, 529 U.S. at 406-08, 413; Penry, 532 U.S. at 792.
The Supreme Court in Williams did not specifically define “unreasonable” in the context of decisions involving unreasonable applications of federal law. See Williams, 529 U.S. at 410. The Court, however, noted that an unreasonable application of federal law is different from an incorrect application of federal law. Id. “‘[A] federal habeas court may not issue the writ simply because that court concludes in its independent judgment that the state-court decision applied [a Supreme Court case] incorrectly.'” Price v. Vincent, 538 U.S. 634, 641 (2003) (quoting Woodford v. Visciotti, 537 U.S. 19, 24-25 (2002)) (brackets in original); Bell v. Cone, 535 U.S. 685, 699 (2002)).
Thus, under the “unreasonable application” determination, the Court need not determine whether the state court's reasoning is sound, rather “the only question for a federal habeas court is whether the state court's determination is objectively unreasonable.” Neal v. Puckett, 286 F.3d 230, 246 (5th Cir. 2002). The burden is on the petitioner to show that the state court applied the precedent to the facts of his case in an objectively unreasonable manner. Price, 538 U.S. at 641 (quoting Woodford, 537 U.S. at 24-25); Wright v. Quarterman, 470 F.3d 581, 585 (5th Cir. 2006). In addition, review under § 2254(d)(1) is limited to the record before the state court that adjudicated the claim on the merits. Cullen v. Pinholster, 563 U.S. 170, 181 (2011).
V. Insufficient Evidence (Claim 1(a))
For ease of analysis, this Report and Recommendation addresses some of Anderson's in a different order than they were listed in his federal application.
Anderson first claims that the evidence was insufficient to support his conviction of theft of more than $1500. The State asserts that there was ample evidence to support each element of the offense beyond a reasonable doubt.
Anderson raised this issue in his application for post-conviction relief. The Louisiana Supreme Court found that he failed to satisfy his post-conviction burden of proof under La. Code Crim. P. art. 930.2.
Anderson, 273 So.3d at 1208; Rec. Doc. 16-11 at 4-5, La. S.Ct. Order, 2018-KH-1168, 5/28/19.
Claims of insufficient evidence present a mixed question of law and fact. Perez v. Cain, 529 F.3d 588, 594 (5th Cir. 2008); Maes v. Thomas, 46 F.3d 979, 988 (10th Cir. 1995). The Court must therefore give deference to the state court's findings unless the decision was contrary to or involved an unreasonable application of Supreme Court law. Miller v. Johnson, 200 F.3d 274, 281 (5th Cir. 2000).
The appropriate standard for determining the sufficiency of evidence is set forth in Jackson v. Virginia, which requires a court to determine whether, after viewing the record and the evidence in the light most favorable to the prosecution, a rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319 (1979); Perez, 529 F.3d at 594; Williams v. Cain, 408 Fed.Appx. 817, 821 (5th Cir. 2011). Louisiana law allows for a crime to be proven by both direct and circumstantial evidence.
Under Louisiana law, “[t]he rule as to circumstantial evidence is assuming every fact to be proved that the evidence tends to prove, in order to convict, it must exclude every reasonable hypothesis of innocence.” La. Rev. Stat. § 15:438. However, on federal habeas corpus review, the court does not apply this state law, “reasonable hypothesis” standard, and instead must apply the Jackson and AEDPA standards of review. Gilley v. Collins, 968 F.2d 465, 468 (5th Cir. 1992) (citing Schrader v. Whitley, 904 F.2d 282, 284 (5th Cir. 1990)). To the extent Anderson relies on Louisiana's circumstantial evidence rule itself, “[t]his is not a purely separate test from the Jackson standard to be applied instead of a sufficiency of the evidence test .... Ultimately, all evidence, both direct and circumstantial, must be sufficient under Jackson to satisfy a rational juror that the defendant is guilty beyond a reasonable doubt.” State v. Porretto, 468 So.2d 1142, 1146 (La. 1985); accord State v. Williams, 693 So.2d 204, 209 (La.App. 4th Cir. 1997). The reasonable hypothesis standard under state law is “just an evidentiary guide for the jury. If a rational trier of fact reasonably rejects the defendant's hypothesis of innocence, that hypothesis fails.” State v. Maxie, 614 So.2d 1318, 1321 (La.App. 3d Cir. 1993); accord Williams, 693 So.2d at 209. The appropriate standard for this Court on habeas review remains Jackson.
The Court's consideration of the sufficiency of the evidence extends only to what was presented at trial. See McDaniel v. Brown, 558 U.S. 120, 131, 134 (2010) (recognizing that a reviewing court is to consider all of the trial evidence as a whole under Jackson); Johnson v. Cain, 347 Fed.Appx. 89, 91 (5th Cir. 2009) (quoting Jackson, 443 U.S. at 324) (Jackson standard relies “upon the record evidence adduced at the trial.”). The review of the sufficiency of the evidence, however, does not include review of the weight of the evidence or the credibility of the witnesses, because those determinations are the exclusive province of the jury. United States v. Young, 107 Fed.Appx. 442, 443 (5th Cir. 2004) (per curiam) (citing United States v. Garcia, 995 F.2d 556, 561 (5th Cir. 1993)); see also Jackson, 443 U.S. at 319 (noting that it is the jury's responsibility “to resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts”). A reviewing federal habeas court, therefore, is not authorized to substitute its interpretation of the evidence or its view of the credibility of witnesses for that of the fact-finder. Weeks v. Scott, 55 F.3d 1059, 1062 (1995) (citing Alexander v. McCotter, 775 F.2d 595, 598 (5th Cir. 1985)). All credibility choices and conflicting inferences must be resolved in favor of the verdict. Ramirez v. Dretke, 398 F.3d 691, 695 (5th Cir. 2005).
In addition, “[t]he Jackson inquiry ‘does not focus on whether the trier of fact made the correct guilt or innocence determination, but rather whether it made a rational decision to convict or acquit.'” Santellan v. Cockrell, 271 F.3d 190, 193 (5th Cir. 2001) (quoting Herrera v. Collins, 506 U.S. 390, 402 (1993)). Thus, to determine whether the commission of a crime is adequately supported by the record, the court must review the substantive elements of the crime as defined by state law. Perez, 529 F.3d at 594 (citing Jackson, 443 U.S. at 324 n.16).
Anderson was charged with and convicted of misappropriation or taking amounts to a value of one thousand five hundred dollars or more in violation of La. Rev. Stat. § 14:67(B)(1). Theft is defined in La. Rev. Stat. § 14:67(A) as follows:
A. Theft is the misappropriation or taking of anything of value which belongs to another, either without the consent of the other to the misappropriation or taking, or by means of fraudulent conduct, practices, or representations. An intent to deprive the other permanently of whatever may be the subject of the misappropriation or taking is essential.
Specific intent “is that state of mind which exists when the circumstances indicate that the offender actively desired the prescribed criminal consequences to follow his act or failure to act.” La. Rev. Stat. § 14:10(1). Under Louisiana law, intent need not be proven directly but may be inferred from the actions of the defendant and the circumstances surrounding those actions. State v. Tate, 851 So.2d 921, 930 (La. 2003) (citing State v. Brooks, 505 So.2d 714, 717 (La.1987)); State v. Sharlhorne, 554 So.2d 1317, 1321 (La.App. 1st Cir. 1989). The State also must prove the value of the stolen property. State v. Richey, 128 So.3d 1143, 1150 (La.App. 5th Cir. 2013) (citation omitted).
In support of his claim of insufficient evidence, Anderson argues that the State failed to establish the value of the television. He further argues that there was no evidence that he entered the home. He further claims that Cyprian, I.N., and Sergeant Gary Baham were not credible witnesses.
At trial, the jury heard the testimony of W.N. who testified that on April 30, 2012, he received a call from his wife that their house had been burglarized. When he got home, his daughter, I.N., told him that they had been burglarized, and he discovered that many items were missing including a 55-inch television, a 43 or 47-inch television, a Ruger Mini 14 which he valued at $750, a .410 shotgun, a Harrington Richardson, a Remington .22 model 522, a 20-gauge single barrel shotgun, two Ruger Black Hawk pistols, a case of pocket knives, his work collar brass, medicine bottles, and his wife's jewelry box and its contents which included chains, watches, rings, and wedding bands. Amongst the missing jewelry was a $1200 pendant, an $800 Whittauer watch, and $1000 pearls. W.N. made a list of missing items with the approximate values, but testified that the insurance company sent him a check for the stolen items in the amount of $2800.W.N.'s neighbor advised that he saw a black car with a Texas license plate and got a partial license plate number. The 55-inch television, the case of knives, the collar brass, and the medicine were ultimately recovered.
Rec. Doc. 16-3 at 134, Trial Transcript, 10/21/14.
Id. at 134-39.
Id. at 136.
Id. at 144.
Id. at 142.
Id. at 139, 144-45.
I.N. testified that she was sitting under the carport when two men in a black car drove up. I.N. identified Anderson as one of the two men. The men exited the car and asked her if she knew a person selling pit bull puppies. After I.N. responded in the negative, the men started to leave, but returned and Anderson asked if he could use the restroom. I.N. directed Anderson to the restroom outside. I.N. testified that when she walked into the house the two men followed, uninvited, which scared her. I.N. observed Anderson looking around the living room of the house. I.N. went into her room leaving Anderson in the living room. When she came out, she saw that the television, her father's guns, and a jewelry box were missing. I.N. called her mother to tell her that the house had been robbed. I.N. testified that she did not invite the men inside the residence nor did she permit the men to take the items. I.N. denied that she originally told her father that she had gone to her aunt's home and found that the items were missing upon her return.
Rec. Doc. 16-4 at 2-3, Trial Transcript (con't), 10/21/14.
Id. at 3.
Id.
Id. at 4.
Id.
Id. at 5, 9.
Id. at 5.
Id. at 6.
Id.
Id. at 6, 9-10.
Id. at 7, 9.
Id. at 8-9.
Sergeant Terry Lane (“Lane”) responded to the home due to a report of a burglary. He went room to room and catalogued everything that was missing. He identified a list of stolen items. Lane testified that, according to his narrative, W.N. told him that I.N. had gone next door and left a door unlocked, and that someone came in and burglarized the home in her absence.
Id. at 11.
Id. at 12.
Id. at 17.
Id. at 18.
Sergeant Gary Baham (“Baham”) went to the crime scene to photograph and collect evidence. He recalled that amongst the missing items were several guns, collar brass, and some jewelry. Baham was unable to obtain any fingerprints from the gun cabinet. Baham heard over the radio that they were looking for a black Mazda or Camry with a Texas tag. Baham was then called to the location of the suspect vehicle. Once there, Baham photographed seven pocket knives found in a black Mazda along with assorted ammunition and medicine bottles. He recalled that a television was also found in the vehicle.
Id. at 19.
Id. at 20.
Id. at 20-21, 37.
Id. at 21-22, 37.
Id. at 37.
Id. at 27, 30, 32-35.
Id. at 32-33, 35-36.
Detective Timothy Wheeler (“Wheeler”) responded to the home on April 30, 2012 to investigate a burglary. I.N. told Wheeler that two men in a black Toyota or Mazda came to the home, asked for a person by name, and that one of the men asked to use the bathroom. I.N. told Wheeler that a second person exited car, and admitted that she went into house and had sex with him. Wheeler received a call from Detective Bergeron with the Hammond Police Department that a confidential source stated a black male in a black car with a Texas tag was trying to sell a large screen television. Wheeler initiated a be on the lookout (“BOLO”) for the suspect vehicle on the radio. Thereafter, Wheeler received information that the car was located in the Old Baton Rouge Highway area near Happy Woods Road. Wheeler and Detective Heath Martin went to the scene of the vehicle. Wheeler was advised the vehicle fled, crashed into a police car, and went into a ditch. Anderson, who was driving the vehicle, fled on foot, but Lieutenant Steven Redmond ultimately caught him. According to Wheeler, Anderson was searched and collar brass insignia, which W.N. identified as belonging to him, was found on Anderson's person. After being read his Miranda rights, Anderson claimed that he purchased the television from a friend in Hammond. On May 10, 2012, I.N. identified Anderson from a photographic lineup.
Id. at 41-42.
Id. at 42-43.
Id. at 43.
Id. at 43-44.
Id.
Id. at 44.
Id. at 45.
Id.
Id.
Id. at 46.
Id. at 47.
Id. at 47-50.
Scott Jarreau (“Jarreau”) was a school resource officer for the Tangipahoa Parish Sheriff Department on April 30, 2012. He heard a call on the radio for a suspicious vehicle. Jarreau was driving on Hood Road when a black vehicle with two black males crossed into his lane and hit his vehicle. The crash disabled Jarreau's vehicle and injured his knee. The suspect vehicle veered into a ditch, and Anderson, who had been driving the vehicle, attempted to flee.Lieutenant Steven Redmond chased Anderson while Jarreau detained the passenger.
Id. at 52-53.
Id. at 53.
Id. at 54, 58-59.
Id. at 55.
Id. at 56.
Id.
Brandon Cyprian admitted that he had previous convictions for first degree robbery and burglary. He further admitted that he had pled guilty to possession of stolen property in the underlying case and was sentenced to ten years. He testified that Anderson picked him up on April 30, 2012 with the plan of going to Eunice to look at some dogs that were for sale. Cyprian recalled that they stopped at a house in Loranger, and Anderson asked a female, who was sitting in a chair under the carport, if he could use the restroom. Cyprian spoke with the female while Anderson was in the restroom. Cyprian claimed the female invited him inside the house, but testified that she did not invite Anderson inside. Cyprian, who planned to have consensual sex with the female, told Anderson to stand watch outside because Cyprian did not want the female's parents to catch him inside the house. He claimed he did not know that Anderson was going to remove anything from the home and that he only learned that Anderson did so when Cyprian returned to the car and saw the television in the backseat and a medicine bottle on the vehicle's console.
Id. at 68-69, 71.
Id. at 68-69, 73-74.
Id. at 61, 70.
Id. at 62.
Id. at 62-63.
Id. at 63.
Id. at 64-65.
Id. at 65.
According to Cyprian, Anderson dropped Cyprian off on Old Baton Rouge Highway and returned to pick him up twenty-five to thirty minutes later. Cyprian claimed that they planned to meet someone who was willing to buy the television. When Anderson noticed an undercover vehicle, Anderson began driving at a high rate of speed and ran into a police car. Anderson fled the vehicle, and Cyprian was apprehended. After Anderson was apprehended, Cyprian saw the police find a “badge” in Anderson's pocket. Cyprian testified that he knew that they did not have consent to take the items from the house. Cyprian denied that a person other than Anderson was with him at the residence in Loranger.
Id. at 65-66.
Id. at 66-67.
Id. at 67-68.
Id. at 68.
Id. at 68.
Id.
Id. at 75.
Lieutenant Steven Redmond (“Redmond”) was on duty in an unmarked vehicle when he heard a BOLO for a suspect vehicle over the radio. As he was only a few miles away from the location where the vehicle was believed to be, he proceeded to the location, but the vehicle had already left the area. Redmond drove up Hood Road and saw a vehicle that matched the description given over the radio. Redmond followed the vehicle. Once he saw a marked unit, he activated his overhead warning lights. The suspect vehicle then drove onto the grass and through a stop light. Redmond activated his siren and pursued the vehicle at upwards of 70 miles per hour. The suspect vehicle crossed over into the oncoming traffic lane and hit a marked unit causing the suspect vehicle to slide into a ditch. The driver, Anderson, exited through the vehicle window and fled around the back of a nearby house. Redmond pursued him and ultimately took him into custody. A search of Anderson's person revealed a gold EP collar brass that belonged to W.N.
Id. at 97-98.
Id.
Id. at 98.
Id.
Id. at 99.
Id.
Id. at 99.
Id. at 100-02.
Id. at 100.
Id.
Id. at 101.
Based on the verdict, the jury obviously found that the State's evidence and testimony were credible. These are functions that the law assigns to the jury, which resolved Anderson's assertions against him. Jackson limits this court's review to the evidence before the trier of fact and does not allow this court to reassess the weight and credibility of the evidence. See Jackson, 443 U.S. at 319 (finding that such matters are left to the factfinder). Specifically, determination of the credibility of a witness is within the province of the jury and is not to be disturbed on habeas review. Passman v. Blackburn, 652 F.2d 559, 569 (5th Cir. 1981) (that the jury chose to believe a witness whose credibility was challenged is not a question of constitutional dimensions); Holderfield v. Jones, 903 F.Supp. 1011, 1018 (5th Cir. 1995) (citing United States v. Hatch, 926 F.2d 387, 399 (5th Cir. 1991)) (the habeas court should defer to the jury's resolution of credibility determinations and justifiable inferences of fact). Thus, the jury's resolve was reasonable and supported by the evidence and testimony.
Viewing the evidence in the light most favorable to the prosecution, there was more than sufficient evidence upon which a rational trier of fact could have found the essential elements of theft of over $1500. Because the state courts' rejection of Anderson's insufficient evidence claim is not an unreasonable application of Supreme Court precedent to the facts of this case, his claim is without merit and does not warrant federal habeas relief.
VI. Other Crimes Evidence (Claim 2)
Anderson next claims that the Trial Court erred in allowing other crimes testimony to be presented to the jury. He specifically points to testimony of a possible rape and Cyprian's testimony that Anderson had been “locked up.”
The State argues that neither unsolicited nor indirect reference was an explicit reference to other crimes committed by Anderson. The State further argues that the testimony did not play a crucial, critical, or highly significant role in the trial.
Anderson raised this claim in his application for post-conviction relief. The Louisiana Supreme Court found that he had not met his burden of proof, citing La. Code Crim. P. art. 930.2.
Anderson, 273 So.3d at 1208; Rec. Doc. 16-11 at 4-5, La. S.Ct. Order, 2018-KH-1168, 5/28/19.
To the extent Anderson raises this issue as a violation of state law, his claim must fail. Habeas corpus review is limited to questions of constitutional dimension, and federal courts generally do not review the admissibility of evidence under state law. Jones v. Cain, 600 F.3d 527, 536 (5th Cir. 2010); Lampton v. Cain, 268 Fed.Appx. 367, 368 (5th Cir. 2008) (citing Jernigan v. Collins, 980 F.2d 292, 298 (5th Cir. 1992)). States are free to implement procedures regarding the admission of evidence, provided that those procedures do not infringe on a constitutional guarantee. Riggins v. Nevada, 504 U.S. 127, 147 (1992); Burgett v. Texas, 389 U.S. 109 (1967). Therefore, federal courts do not sit to review the propriety of state court evidentiary rulings, unless the proceedings violate due process such that the violation renders the criminal proceeding fundamentally unfair. Riggins, 504 U.S. at 147 (quoting Lisenba v. People of State of California, 314 U.S. 219, 236-37 (1941)); see Swarthout, 562 U.S. at 219 (federal habeas review does not lie for errors of or in applying state law); see also United States v. Derden, 978 F.2d 1453, 1458 (5th Cir. 1992) (errors of state law, including evidentiary errors, are not cognizable in habeas corpus, as such, and only rise to constitutional dimension if they so infuse the trial with unfairness as to deny due process such that they more likely than not caused a suspect verdict); Peters, 942 F.2d at 940 (habeas review is proper only to determine whether a state trial judge's error is so extreme as to render the trial fundamentally unfair or violate an explicit constitutional right).
The question of due process in the criminal proceeding presents a mixed question of law and fact. Dickson v. Sullivan, 849 F.2d 403, 405-06 (9th Cir. 1988). Under the applicable standard of review, this Court therefore must determine if the state courts' decision is contrary to or involved an unreasonable application of Supreme Court precedent.
In Lisenba, the Supreme Court stated that the denial of due process “is the failure to observe that fundamental fairness essential to the very concept of justice. In order to declare a denial of it we must find that the absence of that fairness fatally infected the trial; the acts complained of must be of such quality as necessarily prevents a fair trial.” 314 U.S. at 236. In keeping with this principle, the United States Fifth Circuit Court of Appeals has held that the admission of prejudicial evidence is fundamentally unfair so as to justify federal habeas corpus relief only if it is “material in the sense of a crucial, critical, highly significant factor.” Hills v. Henderson, 529 F.2d 397, 401 (5th Cir. 1976) (quotation omitted); Givens v. Cockrell, 265 F.3d 302 (5th Cir. 2001); Porter v. Estelle, 709 F.2d 944, 957 (5th Cir. 1983).
In this case, Anderson fails to establish that the references to an alleged rape and him being previously “locked up” was prejudicial to his defense or misled the jury into an improper verdict. Nor it cannot be said that the evidence played a crucial, critical, and highly significant role in Anderson's conviction. A reading of the trial transcript shows that, on direct examination, Sergeant Lane testified that Sergeant Hyde, after speaking with I.N., told him “there may have been an alleged rape.” Defense counsel objected and asked to approach the bench. At the bench, defense counsel argued that there was no rape alleged and requested a cautionary instruction, although an instruction was never given. Defense counsel also requested that the prosecution advise its witnesses to “stay away from it.” The matter was never mentioned again. Further, there was no insinuation that Anderson was involved in a rape. Rather, the testimony of Cyprian, who testified that he had consensual sex with I.N., suggests that any allegation of rape would have related to Cyprian and not Anderson.
Rec. Doc. 16-4 at 12 (con't), Trial Transcript, 10/21/14.
Id.
Id. at 15.
Id. at 13.
Id. at 64-65.
As for Cyprian's unsolicited remark, on direct examination, the prosecution asked Cyprian how long he had known Anderson. Cyprian replied, “Not long. I say, roughly, it might be 30 days. It wasn't really that long. I knew of him, but I never knew him because he had been locked up prior. I heard of Maurice. I never knew him, though. I never --.” The prosecution interrupted and asked Cyprian where they were headed on April 30, 2012. Cyprian never explained and was not asked about the reason that Anderson was “locked up.” There is nothing to indicate that his statement that Anderson had been “locked up prior” was a significant factor in reaching the verdict.
Id. at 61.
Id. at 13.
Id.
Further, there was compelling evidence of Anderson's guilt of theft of more than $1500 including: (1) I.N.'s testimony identifying Anderson as one of the two men present at the residence prior to theft; (2) Cyprian's testimony identifying Anderson as the person who took the items from the residence; (3) the fact that stolen items were found in the vehicle Anderson was driving and on his person shortly after the crime was reported; and (4) the fact that Anderson attempted to flee the scene after the accident.
Under Louisiana law, an attempt to avoid apprehension indicates consciousness of guilt. State v. Gray, 218 So.3d 40, 47 (La. 2017).
Under these circumstances, the brief, unsolicited testimony about an alleged rape and that Anderson had been previously “locked up” did not result in a denial of fundamental fairness. The denial of relief on this claim was not contrary to or an unreasonable application of Supreme Court precedent. Anderson's claim is therefore without merit.
VII. Motion To Suppress Identification (Claim 4(a))
Anderson claims that the Trial Court erred in denying the motion to suppress identification as the identification procedure was impermissibly suggestive. The State responds that the identification procedure was not unduly suggestive. It further argues that Anderson's conviction was not solely based on I.N.'s identification of Anderson, and that Cyprian also identified Anderson, who was found to be in possession of W.N.'s belongings.
Defense counsel filed a motion to suppress identification on January 31, 2013. The Trial Court held a hearing on February 26, 2013, after which it denied the motion. Anderson did not raise the denial of the motion to suppress as an issue on appeal. Rather, Anderson raised this claim in his application for post-conviction relief. The Louisiana Supreme Court found that he had not met his burden of proof, citing La. Code Crim. P. art. 930.2.
Rec. Doc. 16-2 at 45-46, Motion to Suppress Identification, 1/31/13.
Rec. Doc. 16-1 at 2, Minute Entry, 2/26/13; Rec. Doc. 26 at 1-65, Hearing Transcript, 2/26/13.
Anderson, 273 So.3d at 1208; Rec. Doc. 16-11 at 4-5, La. S.Ct. Order, 2018-KH-1168, 5/28/19.
The United States Supreme Court has stated that “reliability is the linchpin in determining the admissibility of identification testimony” under the Due Process Clause. Manson v. Brathwaite, 432 U.S. 98, 114 (1977); see also United States v. Moody, 564 F.3d 754, 762 (5th Cir. 2009). A two-step analysis is employed asking first, whether the identification procedure was impermissibly suggestive and second, whether under the totality of the circumstances, the suggestiveness leads to a substantial likelihood of irreparable misidentification. Coleman v. Quarterman, 456 F.3d 537, 544 (5th Cir. 2006) (quotations omitted). Generally, in determining whether a photographic identification was impermissibly suggestive, a court need only evaluate the photo array itself and the facts surrounding its presentation. United States v. Kimbrough, 481 F.2d 421, 424 (5th Cir. 1973) (citing United States v. Sutherland, 428 F.2d 1152, 1156 (5th Cir. 1970)). If the identification procedure was not impermissibly suggestive the inquiry ends. Livingston v. Johnson, 107 F.3d 297, 309 (5th Cir.1997). If a pretrial identification procedure is impermissibly suggestive, a reviewing court must look to the totality of the circumstances to determine whether the identification is reliable. Neil v. Biggers, 409 U.S. 188, 199-20 (1972).
Five factors apply in assessing the reliability of an identification: (1) the witness' opportunity to view the perpetrator at the time of the crime; (2) the witness' degree of attention; (3) the accuracy of the witness' description of the perpetrator; (4) the witness' level of certainty concerning the identification; and (5) the time between the crime and the confrontation. Brathwaite, 432 U.S. at 114-15.
This analysis involves a mixed question of law and fact. Livingston v. Johnson, 107 F.3d 297, 309 (5th Cir. 1997). This Court must therefore determine whether the state courts' denial of the claim was contrary to, or an unreasonable application of, clearly established federal law. 28 U.S.C. § 2254(d)(1); Coleman v. Quarterman, 456 F.3d 537, 544 (5th Cir. 2006); Walker v. Vannoy, No. 15-6809, 2016 WL 7485675, at *11 (E.D. La. Sept. 9, 2016), adopted, 2016 WL 7476334 (E.D. La. Dec. 29, 2016). Anderson has not made the required showing.
Anderson claims that the photographs used were unduly suggestive and that the police's conduct in administering the photographic lineup was improper. Initially, he suggests that I.N. should have been brought to the scene of his arrest for identification purposes. He claims only two of the six photographs in the array were of light-skinned males. He further claims that I.N. was pressured to select a photograph because she was told the suspect's photograph was included amongst those in the lineup. He also claims that I.N.'s identification was unreliable.
At the suppression hearing, Detective Wheeler testified that, on May 10, 2012, I.N. participated in a photographic lineup put together by Detective Jenkins. Also present at the time were Detective Suter, I.N.'s mother, and her aunt. Wheeler told I.N. that they had some suspects and that the photographic lineups were “constructed with the suspects in them.” While he told I.N. that the suspects were amongst the photographs, he did not suggest to her which photographs to pick. When shown one photo array, I.N. pointed to a photograph of Anderson and said “that's him,” and indicated that he was the driver. Wheeler had her initial the photograph she selected. Wheeler and Detective Suter also signed the photographs as witnesses. Wheeler testified that I.N.'s identification of Anderson and Cyprian was made freely and voluntarily. When questioned about I.N.'s initial description of the suspects, Wheeler explained that, when they initially responded, I.N. described the driver as a black male wearing flannel pajama pants and the passenger as a tall black man with tattoos on his chest. She did not, however, describe the suspects' skin tone, eye color or hair length.
Rec. Doc. 26 at 17-18, Hearing Transcript, 2/26/13.
Id. at 19, 26.
Id. at 19.
Id. at 20-21, 24, 27-28.
Id. at 20-21. I.N. was shown a second photo array and identified the photograph of the co-defendant as the person she had sex with. Id.
Id.
Id. at 21.
Id. at 22.
Id. at 30-31.
Id. at 30-32.
The Trial Court found that the fact that Wheeler told I.N. that the suspect's photograph was amongst the photographs in the lineup was inconsequential because the nature of a photographic lineup suggests that the suspect's photograph is included in it. The Trial Court acknowledged that only two of the six photographs in the array were of light-skinned black males. The Trial Court, in denying the motion to suppress, explained:
Id. at 35.
Id. at 35-36.
Had the victim identified the assailant as a dark-skinned black male or a light-skinned black male and there were only two light skinned then obviously it would reduce the chances of 50/50 in a lineup and it might be unduly suggestive. But the handler had no idea who to put together in that regard based upon the description. You know, her description just said a black male. So that runs the gamut of a lot of different skin colors, hairstyles, et cetera.
So the real question is: Did the people who put together the lineup unduly suggest by only including two light-skinned individuals. And how could they knew based upon what the victim had said? So there is no connection there between the description given and the actual construct of the photo lineup. In that regard it cannot be unduly suggestive.
The other factor to consider is exactly how the lineup was conducted, whether or not he pointed out a picture and said, kinda hinted, to choose a certain person. No evidence of that.
So any discrepancies do not rise to any kind of constitutional due process level such that they are unduly suggestive. For those reasons the motion to suppress the lineup is denied.
Id. at 36-37.
Initially, to the extent that Anderson suggests that I.N. should have been brought to the crash scene to see if she could identify him, it must be noted that “show up” identifications are generally considered impermissibly suggestive. See United States v. Shaw, 894 F.2d 689, 692 (5th Cir. 1990); United States v. Lang, No. 06-30124, 2007 WL 1725548, at *10 (5th Cir. 2007) (“Although we have not held ‘show-up' identifications of this type to be per se suggestive, there is certainly room for concern.”); Montez v. Thaler, No. 2:09-CV-051, 2012 WL 487094, at *7 (N.D. Tex. Jan. 27, 2012) (“The Fifth Circuit has not held the use of “show-up” identifications is per se suggestive, but such identifications are usually considered unduly suggestive.”), adopted, 2012 WL 489156 (N.D. Tex. Feb. 15, 2012).
Second, as the Trial Court found, it is inconsequential that Wheeler told I.N. that the suspect's photograph was included in the photo array. The mere fact that the victim was told that a suspect was in the lineup does not render the photographic lineup unduly suggestive. United States v. Smith, 148 Fed.Appx. 867, 874 (11th Cir. 2005) (citation omitted) (“a lineup was not suggestive where the witnesses were told that the suspect was in the lineup.”); see United States v. Porter, 29 Fed.Appx. 232, 237 (6th Cir. 2002) (officer's comment to witness that the array included the man suspected of the crime was not unduly suggestive because “he did not suggest which of the six photos showed that man” and did not suggest that the witness select a particular photo); Jamison v. Collins, 100 F.Supp.2d 647, 745 (S.D. Ohio May 10, 2000), aff'd, 291 F.3d 380 (6th Cir. 2002); accord White v. Burt, Case No. 17-cv-13567, 2018 WL 3586377, at *6 (E.D. Mich. Jul. 26, 2018). Here, Detective Wheeler did not give any hints or suggestions or coach I.N. as to which photograph to select.
Id. at 20-21.
Third, there is no evidence that I.N. was pressured or coerced to identify someone in the photo array. Rather, Detective Wheeler testified that I.N.'s identification was made freely and voluntarily, and that he did not feel like I.N. thought she had to select someone.
Id. at 22, 28.
Fourth, the photograph array consisted of six photographs. While Anderson argues only one other photograph pictured a black man with the same light-skinned complexion as him, he does not explain how the characteristics of the individuals in the photographs influenced I.N. to select him as the perpetrator. Further, the Trial Court noted that, while only two of the photographs depicted light-skinned black men (one of which was Anderson), I.N.'s initial description of the suspects was that they were black men, with no mention of skin tone or hair style. Further, variations in skin tone amongst the men pictured do not render the photographic lineup unduly suggestive. United States v. Hood, No. 1:17-CR-421-SCJ-LTW, 2018 WL 7286179, at *8 (N.D.Ga. Oct. 25, 2018) (citations omitted) (photo array was not suggestive where defendant's photograph was the only one depicting a man with a medium brown complexion and the others depicted men with light or dark brown complexions), adopted, 2019 WL 169144 (N.D.Ga. Jan. 11, 2019).
Id. at 36.
Thus, the state courts reasonably determined that the identification procedure used in Anderson's case was not unduly suggestive.
Even if the photographic lineup was unduly suggestive, it did not lead to a substantial likelihood of misidentification. I.N. was able to view Anderson while he was in close proximity to her. Detective Wheeler testified there was no hesitation in I.N.'s identification of Anderson. Further, there was no extensive length of time between the crime and the identification. The crime was committed on April 30, 2012, and I.N. made photographic identification of Anderson on May 10, 2012. This is not so long as to demonstrate a likelihood of unreliability. Cronnon v. Alabama, 587 F.2d 246 (5th Cir. 1979) (two-month delay after murder for witness to make first identification from photographic line-up was not unduly suggestive where no prior or incorrect identification was made demonstrating witness' reliability) (citing Neil, 409 U.S. at 201).
Rec. Doc. 16-4 at 3-5, Trial Transcript (con't), 10/21/14.
Id. at 49.
Id. at 41, 47, 51.
Considering the foregoing, Anderson has not established that the identification process was suggestive or under a totality of the circumstances that the identification was unreliable. Accordingly, the state courts' determination rejecting Anderson's claim that the trial court should have suppressed the suggestive identification was not unreasonable. Given the deferential standards mandated by the AEDPA, Anderson's claim concerning the identification should be denied.
VIII. False Testimony (Claim 7)
Anderson claims that the prosecution knowingly presented the perjured and misleading testimony of I.N. and Cyprian in violation of his right to due process. Specifically, Anderson claims that both witnesses lied when they testified that Anderson was present at the residence and that the prosecution knew the testimony was false. He relies on I.N.'s original statement that she had left the residence and found the items missing when she returned as well as Cyprian's original statement during which he allegedly claimed that he had no knowledge of the crimes. Anderson further claims that Cyprian testified falsely when he claimed he did not have a verbal plea agreement to falsely testify against Anderson in exchange for the prosecution's dismissal of the multiple bill.
Anderson raised this claim in his application for post-conviction relief. The Louisiana Supreme Court found he failed to meet his burden of proof under La. Code Crim. P. art 930.2.
Anderson, 273 So.3d at 1208; Rec. Doc. 16-11 at 4-5, La. S.Ct. Order, 2018-KH-1168, 5/28/19.
A state denies a defendant due process when it knowingly uses perjured testimony at trial or allows untrue testimony to go uncorrected. Giglio v. United States, 405 U.S. 150, 766, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972); Napue v. Illinois, 360 U.S. 264, 269, 79 S.Ct. 1173, 3 L.Ed.2d 1217 (1959); Faulder v. Johnson, 81 F.3d 515, 519 (5th Cir. 1996). In order to obtain relief, the defendant must show that: (1) the testimony was actually false, (2) the State knew the testimony was false, and (3) the testimony was material. Duncan v. Cockrell, 70 Fed.Appx. 741, 744-45 (5th Cir. 2003); Kirkpatrick v. Whitley, 992 F.2d 491, 497 (5th Cir. 1993). False testimony is “material” only if there is any reasonable likelihood that it could have affected the jury's verdict. Duncan, 70 Fed.Appx. at 744 (citing Nobles, 127 F.3d at 415).
A claim of prosecutorial misconduct, including use of perjured testimony, presents a mixed question of law and fact. Brazley, 2002 WL 760471, at *4 n.4 (citing United States v. Emueqbunam, 268 F.3d 377, 403-04 (6th Cir. 2001)); Jones v. Gibson, 206 F.3d 946, 958 (10th Cir. 2000); United States v. Noriega, 117 F.3d 1206, 1218 (11th Cir. 1997); Thompson v. Cain, 161 F.3d 802, 808 (5th Cir. 1998). This court must determine whether the state courts' denial of relief was contrary to or an unreasonable application of federal law.
Here, it is clear Anderson has not met his burden of proving that the testimony of I.N. and Cyprian was actually false, and that the prosecution knew it to be false and allowed it to go uncorrected. At most, there is evidence that I.N.'s testimony that Anderson was present at the residence differed from I.N.'s alleged statement to her father that she had gone down the street and that she found that items were missing upon her return. There is no evidence relating to the contents of Cyprian's statement at the time of his arrest nor is there any evidence in the record that Cyprian received a deal other than what he stated during his testimony. Regardless, courts have held that conflicting or inconsistent testimony is insufficient to establish perjury. Kutzner v. Johnson, 242 F.3d 605, 609 (5th Cir. 2001) (citing Koch v. Puckett, 907 F.2d 524, 531 (5th Cir. 1990)). Thus, merely because the testimony of I.N. and Cyprian at trial differed from their previous statements does not establish that the testimony was actually false.
Furthermore, Anderson's counsel had the opportunity to question the witnesses at trial to determine the veracity of their testimony, and defense counsel made the jury aware of the alleged falsity of their testimony. Defense counsel pointed out that I.N. initially claimed that she had gone down the street and found the items missing upon her return. Defense counsel attacked I.N.'s identification of Anderson from a six-pack photographic array as well as her identification of Anderson at trial. During his cross-examination of Cyprian and in an attempt to attack his credibility, defense counsel questioned him about his Cyprian's prior record, his guilty plea and sentence, and the sentence he could face as a habitual offender.
Rec. Doc. 16-5 at 6, Trial Transcript, 4/22/14.
Id. at 7.
Rec. Doc. 16-4 at 71-74, Trial Transcript (con't), 10/21/14.
The testimony in this case presents nothing more than the kind of credibility conflict and dispute over the appropriate weight to be afforded to it that frequently occurs at trial and which is the jury's function to resolve. Anderson's arguments fall far short of establishing that the State knowingly used uncorrected, false testimony at his trial.
Anderson has failed to establish that the State violated his constitutional rights through the presentation of any false testimony from I.N. and Cyprian. The state courts' denial of relief of this claim was not contrary to or an unreasonable application of federal law. Thus, Anderson is not entitled to relief on this claim.
IX. Ineffective Assistance of Counsel (Claims 1(b), 3, 4(b), 6 & 8)
In claim 1(b), Anderson asserts that his appellate counsel was ineffective in failing to raise on appeal sufficiency of the evidence. In claim 3, Anderson asserts his trial counsel was ineffective in failing to move for a mistrial. In claim 4(b), Anderson argues that his appellate counsel was ineffective in failing to argue on appeal that the trial court erred in denying the motion to suppress identification. In claim 6, Anderson asserts his trial counsel was ineffective in failing to file a motion to quash the defective amended indictment. In claim 8, Anderson asserts that his counsel was ineffective in failing to utilize Cyprian's recorded statement and a letter he wrote to Anderson to impeach his direct testimony.
Anderson raised these claims in his application for post-conviction relief. The Louisiana Supreme Court found that Anderson's failed to prove he received ineffective assistance of counsel under Strickland.
Anderson, 273 So.3d at 1208; Rec. Doc. 16-11 at 4-5, La. S.Ct. Order, 2018-KH-1168, 5/28/19.
The issue of ineffective assistance of counsel is a mixed question of law and fact. Clark v. Thaler, 673 F.3d 410, 416 (5th Cir. 2012); Woodfox v. Cain, 609 F.3d 774, 789 (5th Cir. 2010). The question for this Court is whether the state courts' denial of relief was contrary to, or an unreasonable application of, federal law as determined by the Supreme Court.
In Strickland v. Washington, 466 U.S. 668 (1984), the Supreme Court established a two-part test for evaluating claims of ineffective assistance of counsel in which the petitioner must prove deficient performance and prejudice therefrom. Strickland, 466 U.S. at 687. The petitioner has the burden of proving ineffective assistance of counsel by a preponderance of the evidence. Montoya v. Johnson, 226 F.3d 399, 408 (5th Cir. 2000); Jernigan v. Collins, 980 F.2d 292, 296 (1992). In deciding ineffective assistance claims, a court need not address both prongs of the conjunctive Strickland standard but may dispose of such a claim based solely on a petitioner's failure to meet either prong of the test. Amos v. Scott, 61 F.3d 333, 348 (1995).
To prevail on the deficiency prong, a petitioner must demonstrate that counsel's conduct failed to meet the constitutional minimum guaranteed by the Sixth Amendment. See Styron v. Johnson, 262 F.3d 438, 450 (5th Cir. 2001). “The defendant must show that counsel's representation fell below an objective standard of reasonableness.” Strickland, 466 U.S. at 68788. The analysis of counsel's performance must take into account the reasonableness of counsel's actions under prevailing professional norms and in light of all of the circumstances. See Strickland, 466 U.S. at 689; Carty v. Thaler, 583 F.3d 244, 258 (5th Cir. 2009). The reviewing court must “judge ... counsel's challenged conduct on the facts of the particular case, viewed as of the time of counsel's conduct.” Roe v. Flores-Ortega, 528 U.S. 470, 477 (2000) (quoting Strickland, 466 U.S. at 690). Petitioner must overcome a strong presumption that the conduct of his counsel falls within a wide range of reasonable representation. Harrington, 562 U.S. at 104 (citing Strickland, 466 U.S. at 689). “[I]t is all too easy to conclude that a particular act or omission of counsel was unreasonable in the harsh light of hindsight.” Bell, 535 U.S. at 702 (citing Strickland, 466 U.S. at 689). As a result, federal habeas courts presume that trial strategy is objectively reasonable unless clearly proven otherwise. Strickland, 466 U.S. at 689; Johnson v. Dretke, 394 F.3d 332, 337 (5th Cir. 2004) (counsel's “‘conscious and informed decision on trial tactics and strategy cannot be the basis for constitutionally ineffective assistance of counsel unless it is so ill chosen that it permeates the entire trial with obvious unfairness.'”) (quoting United States v. Jones, 287 F.3d 325, 331 (5th Cir. 2002)); Geiger v. Cain, 540 F.3d 303, 309 (5th Cir. 2008).
In order to prove prejudice, 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.” Bell, 535 U.S. at 695 (quoting Strickland, 466 U.S. at 694); United States v. Kimler, 167 F.3d 889, 893 (5th Cir. 1999). Furthermore, “[t]he petitioner must ‘affirmatively prove,' [and] not just allege, prejudice.” Day v. Quarterman, 566 F.3d 527, 536 (5th Cir. 2009) (quoting Strickland, 466 U.S. at 693). In this context, “a reasonable probability is a probability sufficient to undermine confidence in the outcome.” Cullen, 563 U.S. at 189 (quoting Strickland, 466 U.S. at. 694). This standard requires a “substantial,” not just “conceivable,” likelihood of a different result. Harrington, 562 U.S. at 112. Thus, conclusory allegations of ineffective assistance of counsel, with no showing of effect on the proceedings, do not raise a constitutional issue sufficient to support federal habeas relief. Miller, 200 F.3d at 282 (citing Ross v. Estelle, 694 F.2d 1008, 1012 (5th Cir. 1983)).
On habeas review, the United States Supreme Court has clarified that, in applying Strickland, “[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.” Harrington, 562 U.S. at 105 (citing Strickland, 466 U.S. at 690). The Harrington Court went on to recognize the high level of deference owed to a state court's findings under Strickland in light of AEDPA standards of review:
The standards created by Strickland and § 2254(d) are both highly deferential, and when the two apply in tandem, review is doubly so. The Strickland standard is a general one, so the range of reasonable applications is substantial. Federal habeas courts must guard against the danger of equating unreasonableness under Strickland with unreasonableness under § 2254(d). When § 2254(d) applies, the question is not whether counsel's actions were reasonable. The question is whether there is any reasonable argument that counsel satisfied Strickland's deferential standard.Id. at 105 (citations and quotation marks omitted).
Thus, scrutiny of counsel's performance under § 2254(d) therefore is “doubly deferential.” Cullen, 563 U.S. at 190 (quoting Knowles v. Mirzayance, 556 U.S. 111, 112, 129 S.Ct. 1411, 173 L.Ed.2d 251 (2009)). The federal courts must take a “highly deferential” look at counsel's performance under the Strickland standard through the “deferential lens of § 2254(d).” Id. (citing Strickland, 466 U.S. at 689, and quoting Knowles, 556 U.S. at 121 n.2).
A. Move for a Mistrial (Claim 3)
Anderson claims that his trial counsel was ineffective in failing to move for a mistrial when the State elicited other crimes evidence. Anderson points to Cyprian's testimony that Anderson had been “locked up” as well as Lane's testimony about an alleged rape. He also faults counsel for failing to object to Cyprian's testimony that Anderson had been locked up. The States responds that Anderson fails to show prejudice.
The record reflects that when Lane testified that Sergeant Hyde told him after he spoke with I.N. that there may have been “an alleged rape,” defense counsel immediately objected and a bench conference was held. Defense counsel stated that, “No, I'm not saying it's a mistrial,” and “[t]his is not an action for mistrial,” but requested a cautionary instruction. Defense counsel requested that the prosecution advise its witnesses accordingly. Ultimately, the Trial Court never gave a cautionary instruction and testimony resumed. Later, Cyprian, when explaining how long he had known Anderson before the crime, explained that Anderson “had been locked up prior.” Defense counsel did not object to that testimony. The prosecution, however, interrupted Cyprian and redirected him by asking where they were headed on April 30, 2012.
Rec. Doc. 16-4 at 12-15, Trial Transcript, 4/21/14.
Id. at 13-14.
Id. at 15.
Id.
Id. at 61.
See id.
Id.
To the extent that Anderson is arguing that counsel was ineffective for failing to move for mistrial based on these two statements, that claim has no merit. A decision as to whether to move for a mistrial is one of trial strategy. Geiger v. Cain, 540 F.3d 303, 309 (5th Cir. 2008) (“It is oft-recognized that the decision not to seek a mistrial is frequently a strategic one.”); see Hatch v. Lambert, 215 Fed.Appx. 614, 615 (9th Cir. 2006); Brooks v. Cain, No. 06-1869, 2009 WL 3088323, at *17 (E.D. La. Sept. 21, 2009); Franklin v. Thompson, No. 07-543, 2007 WL 3046642, at *12 (E.D. La. Oct. 17, 2007). The United States Fifth Circuit Court of Appeal has noted that counsel's “conscious and informed” strategic decision not to seek a mistrial “cannot be the basis for constitutionally ineffective assistance unless it is so ill chosen that it permeates the entire trial with obvious unfairness.” Ward v. Dretke, 420 F.3d 479, 491 (5th Cir. 2005) (quoting Martinez v. Dretke, 404 F.3d 878, 885 (5th Cir. 2005) (internal quotations omitted)). In making that decision, counsel is “required to balance the harm caused by the [improper conduct] against the legitimate possibility that a new trial would present less propitious prospects for his client.” Id.
Moreover, it is clear that the strategic decisions of counsel are accorded a large measure of deference. Indeed, as noted supra, the United States Supreme Court expressly held in Strickland: “Judicial scrutiny of counsel's performance must be highly deferential [A] court must indulge a strong presumption that counsel's conduct 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.” 466 U.S. at 689 (quotation marks omitted).
Mistrials do not always benefit the defense. For example, when a mistrial is declared and the case must be tried again from scratch, there is always a risk that in the new trial the State might bolster and present its case more effectively. Faced with such considerations, counsel, who knows his case and was present for the trial, is generally in the best position to weigh the relative benefits of proceeding to a verdict against attempting to force a retrial by moving for mistrial. Accordingly, a habeas court, whose knowledge of a case is limited to a cold record, should second-guess trial counsel's decisions on such matters only in the most egregious circumstances.
Anderson faults his counsel for failing to specifically move for a mandatory mistrial under La. Code Crim. P. art 770. Article 770 provides for a mandatory mistrial when a remark or comment is made in the presence of the jury by the judge, district attorney, or a court official and the remark refers to another crime committed or alleged to have been committed by the defendant as to which evidence is not admissible. La. Code. Crim. P. art. 770. Generally, article 770 does not apply to state witnesses because they are not “court officials.” State v. Pierce, 80 So.3d 1267, 1271 (La.App. 5th Cir. 2011). However, application of article 770 is triggered when the prosecutor deliberately elicits testimony from a witness that impermissibly references another crime. Id. (citing State v. Lagarde, 960 So.2d 1105, 1113 (La.App. 5th Cir. 2007), writ denied, 980 So.2d 684 (La. 2008)).
Mistrial under article 771 is discretionary when a witness makes an irrelevant remark that might prejudice the defendant. La. Code Crim. P. art. 771. Under article 771, the trial court may admonish the jury upon motion of the defendant or declare a mistrial if an admonishment is not sufficient. Id. A mistrial under article 771 should be granted only where the prejudicial remarks of the witness make it impossible for the defendant to obtain a fair trial. Id.
Here, Anderson has not demonstrated a reasonable probability that the state trial court would have resorted to the drastic option of a mistrial. “A witness's voluntary, unresponsive testimony which implicates a defendant in other crimes does not require a mistrial, at least where the form of the prosecutor's question does not indicate bad faith.” State v. Ledet, 792 So.2d 160, 175 (La.App. 5th Cir. 2001), (citing State v. Jackson, 767 So.2d 833 (La.App. 5th Cir. 2000)). Initially, Lane's testimony that Hyde told him that there may have been an “alleged rape” did not implicate Anderson. Rather, as previously explained, the evidence indicated that it was Cyprian, and not Anderson, who had sex with I.N. Further, there is no evidence that the prosecutor was deliberately attempting to elicit testimony of “other crimes” or bad acts when she asked Lane what he did after walking the rooms and cataloging the missing items nor when she asked Cyprian how long he had known Anderson. Both responses went beyond the scope of the questions and were inadvertent. No further mention was made of a rape or of Anderson being previously incarcerated. These two brief remarks were not so prejudicial that it made it impossible for Anderson to obtain a fair trial.
Anderson has not shown a reasonable probability that the outcome of the trial would have been different had counsel sought a mistrial. Having failed to show that counsel's choice to proceed with trial rather than seek a mistrial prejudiced him, Anderson is not entitled to relief as to this claim.
B. Motion to Quash (Claim 6)
Anderson next contends that his counsel was ineffective in failing to move to quash the amended indictment where it failed to allege that he had the intent to deprive the owners permanently of that which was taken. The State responds that the amended indictment was not so facially deficient to void the jurisdiction of the state court.
Louisiana law expressly authorizes the use of specific “short form” charging documents with respect to certain offenses. La. Code Crim. P. art. 465. For a theft charge, a “short form” charging document suffices if it states that the accused “committed theft of (state property stolen) of the value of ____ dollars.” La. Code Crim. P. art. 465(A)(44).
Article 465 further provides: “The indictment, in addition to the necessary averments of the appropriate specific form hereinbefore set forth, may also include a statement of additional facts pertaining to the offense charged. If this is done it shall not affect the sufficiency of the specific indictment form authorized by this article.” La. Code Crim. P. art. 465(B).
Here, the amended bill of indictment followed that form, charging that, “In violation of La. R.S.14:67 Maurice Anderson did on or about 4/30/12 commit theft of more than $1,500 belonging to [W.N. & C.N.]” Additionally, amongst the discovery provided to the defense was the arrest report which included a detailed list of the property stolen including medications of C.N., pocket knives, ammunition, a 55 inch television, a 32 inch television, and various firearms and jewelry.Furthermore, at a hearing on August 5, 2014, the Trial Court advised Anderson that he was “charged with theft in excess of $1500. A theft is the taking of anything of value that belongs to someone else with the intent to deprive the owner permanently of that which was taken. And when the value is over $1500 the possible penalty is up to a $10,000 fine and up to 10 years hard time in a state penitentiary. Do you understand that?” Anderson responded in the affirmative.
Rec. Doc. 16-2 at 59, Amended Indictment, 4/8/13.
Rec. Doc. 16-1 at 175-78, 180-81, Tangipahoa Parish S.O Report, 7/17/12.
Rec. Doc. 16-2 at 170, Hearing Transcript, 8/5/14.
Id.
The foregoing record demonstrates that Anderson was fully notified of the offense charged and he understood the nature of the offense. Anderson fails to show that his counsel was deficient in failing to file a motion to quash the amended indictment or any resulting prejudice.
The state courts' decision rejecting this ineffective assistance of counsel claim was not contrary to or involving an unreasonable application of clearly established federal law, as determined by the Supreme Court of the United States. Anderson is not entitled to relief as to this claim.
C. Impeach Cyprian's Testimony (Claim 8)
Anderson next claims that his trial counsel was ineffective in failing to impeach Cyprian with his recorded statement and a letter Cyprian sent Anderson. The State responds that the decision was a strategic one and that Anderson fails to demonstrate prejudice.
The method and scope of cross examination is a type of trial strategy for which counsel is granted reasonable latitude. See United States v. Octave, No. 12-205, 2015 WL 6620117, at *6 (E.D. La. Oct. 30, 2015) (citing Pape v. Thaler, 645 F.3d 281, 291 (5th Cir. 2011)). The federal courts have made clear that “[t]he decision whether to cross-examine a witness, and if so, how vigorously to challenge the witness' testimony, requires a quintessential exercise of professional judgment.” Ford v. Cockrell, 315 F.Supp.2d 831, 859 (W.D. Tex. Apr. 27, 2004), aff'd, 135 Fed.Appx. 769 (5th Cir. 2005); accord Lewis v. Cain, No. 09-2848, 2009 WL 3367055, at *8 (E.D. La. Oct. 16, 2009), aff'd, 444 Fed.Appx. 835 (5th Cir. 2011); Williams v. Cain, Nos. 06-0224 and Nos. 06-0344, 2009 WL 1269282, at *11 (E.D. La. May 7, 2009), aff'd, 359 Fed.Appx. 462 (5th Cir. 2009); Parker v. Cain, 445 F.Supp.2d 685, 710 (E.D. La. Aug. 9, 2006). There is a strong presumption that counsel has exercised his professional judgment reasonably.
Anderson points to an unsigned letter purportedly sent to him by Cyprian on September 26, 2013, which states:
Yo cuz what's up? Man I'ma get str-8 to the point. Look I just came back from court today, which is the 25th. I was suppose to be going to pretrial on that other “burglary,” but nothing was even brought up about it, they called your name, but you wasn't in there, only I was. I'm writing you to let you know that they are trying to ((multiple bill)) me, my lawyer to me that they want to multillbill me on the procession charge, they want me to catch tha stand on you (Image Omitted) But I turned it down, my lawyer told me if I don't they gone multillbill me, and give me double an it's flat time, so I'm writing you to let you know, Bro you need to send me that case law, you know the one you was talking me that they was out of time, on tha that they made me cop at on? Man you need to send that to me ASAP, so that I can give it to my lawyer and have tha charge dismiss, so that they want multilbill me, man I go to court next month, so I need to mail me that case law ASAP!!!
Rec. Doc. 16-8 at 114, Unsigned Letter; id. at 113, Postmarked Envelope, 9/26/13.
Cyprian's initial statement to law enforcement after his arrest is not a part of the record.
While defense counsel did not utilize Cyprian's recorded statement to police or the letter, the record reflects that defense counsel extensively cross-examined Cyprian in an attempt to undermine his credibility. Defense counsel elicited testimony that Cyprian had two prior convictions. Cyprian admitted that he could possibly face a life sentence as a habitual offender. Cyprian further admitted that he pled guilty to possession of stolen property and was sentenced to ten years, but that he expected to serve four and a half years of the sentence.Cyprian also admitted that, while he told Anderson that he may know someone who would buy the television, he did not actually know anyone who would be willing to buy it.
Rec. Doc. 16-4 at 71, Trial Transcript (con't), 4/21/14.
Id. at 71-72.
Id. at 71-73.
Id. at 74.
During closing argument, defense counsel attacked the credibility of Cyprian. Defense counsel argued that Cyprian was “given a sweetheart deal” and that the jury should not “believe a word he says” given the fact that he faced life imprisonment if he did not testify against Anderson.
Rec. Doc. 16-5 at 6-7, 9, Trial Transcript, 4/22/14.
Id. at 6, 8.
It is clear from the record that defense counsel attempted to discredit the State's case through cross-examination in an effort to raise doubt about the reliability of the testimony and in support of Anderson's defense. The testimony was presented to the jury, which as the trier of fact, weighed and considered the testimony. The fact that the jury did not believe the defense does not render counsel's performance constitutionally deficient. See Martinez v. Dretke, 99 Fed.Appx. 538, 543 (5th Cir. 2004) (“[A]n unsuccessful strategy does not necessarily indicate constitutionally deficient counsel.”). “[I]t is all too easy for a court, examining counsel's defense after it has proved unsuccessful, to conclude that a particular act or omission of counsel was unreasonable.” Strickland, 466 U.S. at 689 (citations omitted).
Anderson has failed to establish that the denial of relief by the state courts on this ground was contrary to or an unreasonable application of Strickland. He is not entitled to relief on this claim.
D. Appellate Counsel (Claims 1(b), 4(b))
Anderson claims that his appellate counsel was ineffective in failing to raise on appeal claims of insufficient evidence and that the Trial Court erred in denying the motion to suppress identification. The State responds that the state courts did not misapply Strickland.
Criminal defendants are entitled to effective assistance of counsel in their first appeal of right. Evitts v. Lucey, 469 U.S. 387, 394 (1985). The Strickland standard for judging performance of counsel also applies to claims of ineffective appellate counsel. Smith v. Robbins, 528 U.S. 259, 285 (2000); Goodwin v. Johnson, 132 F.3d 162, 170 (5th Cir. 1997). To prevail on a claim that appellate counsel was constitutionally ineffective, a petitioner must show that his appellate counsel unreasonably failed to discover and assert a nonfrivolous issue and establish a reasonable probability that he would have prevailed on this issue on appeal but for his counsel's deficient representation. Briseno v. Cockrell, 274 F.3d 204, 207 (5th Cir. 2001); Smith, 528 U.S. at 28586.
Effective appellate counsel are not required to assert every nonfrivolous available ground for appeal. Green, 160 F.3d at 1043 (citing Evitts, 469 U.S. at 394). On the contrary, the United States Supreme Court has long recognized that appellate counsel filing a merits brief need not and should not argue every nonfrivolous claim; instead, appellate counsel may legitimately select from among them in the exercise of professional judgment to maximize the likelihood of success on appeal. Jones v. Barnes, 463 U.S. 745, 751-52 (1983). Appellate counsel has the discretion to exclude even a nonfrivolous issue if that issue was unlikely to prevail. See Anderson v. Quarterman, 204 Fed.Appx. 402, 410 (5th Cir. 2006) (“The issues that Anderson argues his counsel should have raised on direct appeal ... lack merit. As such, failure to raise these issues did not prejudice Anderson.”); Penson v. Ohio, 488 U.S. 75, 83-84 (1988) (noting that courts have refused to find counsel ineffective when the proposed appellate issues are meritless); Kossie v. Thaler, 423 Fed.Appx. 434, 437 (5th Cir. 2011) (recognizing the Supreme Court's basic rule that the presumption that appellate counsel was effective will be overcome only when the claims not asserted are stronger than those that were in fact raised). Thus, because one of appellate counsel's important duties is to focus on those arguments that are most likely to succeed, counsel will not be found constitutionally ineffective for failure to assert every conceivable issue. Smith, 528 U.S. at 288; Jones, 463 U.S. at 754.
Rather, “[e]xperienced advocates since time beyond memory have emphasized the importance of winnowing out weaker arguments on appeal and focusing on one central issue if possible, or at most on a few key issues.” Jones v. Barnes, 463 U.S. 745, 751-52 (1983). Far from evidencing ineffectiveness, an appellant counsel's restraint often benefits her client because “a brief that raises every colorable issue runs the risk of burying good arguments ... in a verbal mound made up of strong and weak contentions.” Id. at 753. As a result, the test to be applied in assessing such a claim is whether the issue ignored by appellate counsel was “clearly stronger” than the issues actually presented on appeal. See, e.g., Diaz v. Quarterman, 228 Fed.Appx. 417, 427 (5th Cir. 2007); accord Smith v. Robbins, 528 U.S. 259, 288 (2000).
Anderson's counsel was not required to raise every possible claim appearing on the record. Anderson's appellate counsel on initial appeal raised a single claim, that is that the trial court erred in denying the motion to quash the bill of information based on untimely commencement of trial. In a March 1, 2016 letter to Anderson, Anderson's appellate counsel explained to Anderson the reason he did not raise insufficient evidence:
In the letter you asked why I did not raise the issue of insufficient evidence. I did not raise the issue because we would not have prevailed on that issue. The appellate court does not address the credibility of witnesses and views the evidence in the light most favorable to the state. Brandon Cyprian testified that he went with you to the residence where the burglary occurred in a black car and that when he came out of the house items from the house were in the car. He also testified that when the police tried to stop you, he was in the car, and you and he were going to sell a TV that had been removed from the house. This testimony alone is sufficient evidence to support the conviction. It was my professional opinion that your best issue was the speedy trial issue, and I did not want to weaken that argument with a frivolous one.
Rec. Doc. 16-7 at 33, Letter from Appellate Counsel to Anderson, 3/1/16.
Although the claim raised by appellate counsel was ultimately found to be without merit, Anderson has not shown that his claims of insufficient evidence and the denial of the motion to suppress identification were clearly stronger or that there is a reasonable probability that the appellate court would have vacated the trial court judgment if only the proposed claims had been asserted.
As explained above, sufficient evidence supports the jury's verdict finding Anderson guilty beyond a reasonable doubt, and the identification procedure was not unduly suggestive. Thus, such claims on appeal would not have been successful. Failure to raise a meritless claim on appeal is not deficient performance. See Anderson v. Quarterman, 204 Fed.Appx. 402, 410 (“The issues that Anderson argues his counsel should have raised on direct appeal ... lack merit. As such, failure to raise these issues did not prejudice Anderson.”); Penson v. Ohio, 488 U.S. 75, 83-84 (1988) (noting that courts have refused to find counsel ineffective when the proposed appellate issues are meritless); see also, Kossie v. Thaler, 423 Fed.Appx. 434, 437 (5th Cir. 2011) (recognizing the Supreme Court's basic rule that the presumption that appellate counsel was effective will be overcome only when the claims not asserted are stronger than those that were in fact raised). .
The state courts' denial of relief under Strickland was not contrary to or clearly in violation of established law. Anderson is not entitled to relief as to this claim.
X. Cumulative Review (Claim 5)
Anderson contends that the court should consider the cumulative effects of the errors and grant him federal habeas relief. The State responds that each of Anderson's foregoing claims are individually meritless, and, thus, there is nothing to cumulate.
Anderson raised this claim in his application for post-conviction relief. The Louisiana Supreme Court found that he had not met his burden of proof, citing La. Code Crim. P. art. 930.2.
Anderson, 273 So.3d at 1208; Rec. Doc. 16-11 at 4-5, La. S.Ct. Order, 2018-KH-1168, 5/28/19.
Due process standards require this court to consider “whether there exists a liberty or property interest of which a person has been deprived, and if so, we ask whether the procedures followed by the State were constitutionally sufficient.” Swarthout v. Cooke, 562 U.S. 216, 219 (2011) (citing Ky. Dept. of Corr. v. Thompson, 490 U.S. 454, 460 (1989)). Due process requires, therefore, that the court grant habeas relief only when the cumulative errors of the state court make the underlying proceeding fundamentally unfair. Neyland v. Blackburn, 785 F.2d 1283, 1292 (5th Cir. 1986).
The Supreme Court has recognized that the cumulative effect of established errors, though not individually worthy, could be collectively significant under the due process standard. Kyles v. Whitley, 514 U.S. 419, 436-37 (1995). Cumulative error “provides relief only when the constitutional errors committed in the state trial court so fatally infected the trial that they violated the trial's fundamental fairness.” (internal quotations omitted) Carty v. Quarterman, 345 Fed.Appx. 897, 909 (5th Cir. 2009) (quoting Spence v. Johnson, 80 F.3d 989, 1000 (5th Cir. 1996)). To provide relief on federal habeas review, cumulative errors must have “more likely than not caused a suspect verdict.” (citation omitted) Carty, 345 Fed.Appx. at 909.
For the reasons discussed above, Anderson has identified no constitutional error by the state courts arising from his state criminal proceedings or the state court rulings on the effective assistance of his counsel. See Turner v. Quarterman, 481 F.3d 292, 301 (5th Cir. 2007) (“[W]here individual allegations of error are not of constitutional stature or are not errors, there is ‘nothing to cumulate.' ”) Even if his trial counsel's performance was deficient, Anderson has not shown that any error created a prejudicial effect on the verdict. Id. at 301 (meritless claims or claims that are not prejudicial cannot be cumulated regardless of the total number raised) (citing Derden v. McNeel, 978 F.2d 1453, 1454, 1461 (5th Cir. 1992)). When individual contentions of ineffective assistance are meritless, that result cannot be changed simply by asserting the same claims collectively. “[I]neffective assistance of counsel cannot be created from the accumulation of acceptable decisions and actions.” United States v. Hall, 455 F.3d 508, 520 (5th Cir. 2006) (citing Miller, 200 F.3d at 286 n.6); Sholes v. Cain, 370 Fed.Appx. 531, 535 (5th Cir. 2010); Mullen v. Blackburn, 808 F.2d 1143, 1147 (5th Cir. 1987) (with respect to cumulation of meritless claims, “Twenty times zero equals zero.”).
Without some showing of a constitutional error, there can be no deleterious cumulative effect for this court to consider. Turner, 481 F.3d at 301 (“where individual allegations of error are not of constitutional stature or are not errors, there is ‘nothing to cumulate.'”); Martinez-Perez v. Dretke, 172 Fed.Appx. 76, 83 (5th Cir. 2006) (“Obviously, if there was no error ... there was no cumulative error.” (emphasis in original)); see also United States v. Fields, 761 F.3d 443, 483 (5th Cir. 2014) (where no error by lower court was established, there was no cumulative error).
The state courts' denial of relief was not contrary to or an unreasonable application of Supreme Court precedent. Anderson is not entitled to relief as to this claim.
XI. Habitual Offender Claims (Claims 9-13)
In claim 9, Anderson argues that his counsel was ineffective at the habitual offender hearing for failing to challenge the March 29, 1999 predicate conviction for unauthorized entry of an inhabited dwelling. He claims that the sentence for that conviction was excessive. He further claims that his counsel was ineffective in failing to require the State to specify which March 29, 1999 conviction was utilized as a predicate conviction. In claim 10, Anderson contends that his present offense occurred more than five years after he had served his sentence relating to the March 29, 1999 convictions. Additionally, he argues that the Trial Court erred in admitting an unauthenticated and uncertified computer printout to establish dates and that he was deprived of the fifteen-day opportunity to research and prepare an objection.
In claim 11, Anderson argues that the May 12, 2003 predicate conviction should not have been utilized as his guilty plea was not knowingly and intelligently made. He further claims that he received ineffective assistance of counsel at the May 12, 2003 hearing. In claim 12, Anderson claims that the November 5, 2004 predicate conviction should not have been used to enhance his conviction because it has been cleansed and because he received ineffective assistance of counsel at his guilty plea. Finally, in claim 13, Anderson claims that his sentence of twenty years is unconstitutionally excessive.
The January 28, 2020 multiple bill, as amended, alleged that Anderson was a fourth felony offender based on three predicate convictions: (1) March 29, 1999 convictions of simple burglary of an inhabited dwelling (case number 79726), unauthorized entry of an inhabited dwelling (case number 83332), and simple burglary (case number 87213); (2) a May 12, 2003 conviction for possession or introduction of contraband into a penal institution (case number 85028); and (3) a November 4, 2004 conviction for possession or introduction of contraband into a penal institution (case number 87690). The Trial Court held a hearing on January 3, 2022, and after hearing the testimony of witnesses and arguments of the parties, denied Anderson's motion to quash. On March 7, 2022, the Trial Court adjudicated Anderson a fourth felony offender and sentenced him to twenty years imprisonment.
Rec. Doc. 16-11 at 30-31, Information to Establish Defendant's Status as a Habitual Offender, 1/28/20; see Rec. Doc. 16-14 at 244-45, Habitual Offender Hearing Transcript, 1/3/22 (noting conviction date was amended from 2/13/03 to 5/12/03).
Rec. Doc. 16-14 at 232-50, Habitual Offender Hearing Transcript, 1/3/22; Rec. Doc. 16-15 at 1-61, Habitual Offender Hearing Transcript (con't), 1/3/22.
Rec. Doc. 16-15 at 63-74, Habitual Offender Sentencing Hearing Transcript, 3/7/22.
Anderson raised these claims in his second direct appeal. In the last reasoned opinion, the Louisiana First Circuit found that Anderson's claim of ineffective assistance of counsel at sentencing had no merit. See Wilson v. Sellers, 138 S.Ct. 1188, 1192 (2018) (“We hold that the federal court should ‘look through' the unexplained decision to the last related state-court decision that does provide a relevant rationale ... then presume that the unexplained decision adopted the same reasoning.”). The court found that less than five years had elapsed from the closure dates of the predicate convictions to the date of the commission of the current offense. The court found that Anderson's attacks of predicate convictions two and three were meritless. Finally, the court found that sentence imposed was not unconstitutionally excessive.
Anderson, 357 So.3d at 854-56; Rec. Doc.16-15 at 101-04, La.App.1st Cir. Opinion, 2022 KA 0587, 12/22/22.
Id. at 854-57; Rec. Doc.16-15 at 104-05, La.App.1st Cir. Opinion, 2022 KA 0587, 12/22/22.
Id. at 857; Rec. Doc.16-15 at 105-06, La.App.1st Cir. Opinion, 2022 KA 0587, 12/22/22.
Id. at 851-54; Rec. Doc.16-15 at 96-100, La.App.1st Cir. Opinion, 2022 KA 0587, 12/22/22.
A. Ineffective Assistance of Counsel at Habitual Offender Hearing (Claim 9)
Anderson claims his counsel was ineffective at the habitual offender hearing for failing to object to the use of the March 29, 1999 conviction in case number 83332 for unauthorized entry of an inhabited dwelling as a predicate conviction because the sentence was excessive. It appears that he claims that he received an illegal nine-year sentence for that offense. He further argues that his counsel was ineffective for not requiring the State to specifically which of the three March 29, 1999 convictions was utilized as a predicate conviction.
La. Rev. Stat. art. 14:62.3 provides that “[w]hoever commits the crime of unauthorized entry of an inhabited dwelling shall be fined not more than one thousand dollars or imprisoned with or without hard labor for not more than six years, or both.” Anderson received a six-year sentence for that offense. As the Louisiana First Circuit Court of Appeal explained, Anderson “arrives at the nine-year sentence by combining the non-suspended portion of the sentence in docket number 83332, with the non-suspended portion of the sentence in another offense, which the court ruled would be served concurrently, and then adding a five-year term of probation.”As his six-year sentence fell within the statutory limitation, there was no basis for counsel to object. Counsel is not ineffective for failing to raise a meritless issue. Kimler, 167 F.3d at 893 (“An attorney's failure to raise a meritless argument ... 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.”).
Rec. Doc. 16-15 at 1, Habitual Offender Hearing Transcript (con't), 1/3/22; Rec. Doc. 16-11 at 37, Minute Entry, No. 83332, 3/29/99.
Anderson, 357 So.3d at 855; Rec. Doc. 16-15 at 103, La.App.1st Cir. Opinion, 2022 KA 0587, 12/22/22.
Anderson also faults his counsel for failing to require the State to specify on which of his March 29, 1999 convictions it relied for purposes of the enhancement. However, it is clear from the habitual offender petition that predicate conviction number one consisted of all three March 29, 1999 convictions. The Trial Court counted the three March 29, 1999 convictions as a single conviction as required by Louisiana law. See La. Rev. Stat. art. 15:529.1(B) (“[m]ultiple convictions obtained on the same day prior to October 19, 2004, shall be counted as one conviction for the purpose of [the habitual offender law.]”). As a result, defense counsel was not ineffective in failing to require the State to specify which March 29, 1999 conviction it relied upon nor has Anderson shown any resulting prejudice.
Rec. Doc. 16-11 Information to Establish Defendant's Status as a Habitual Offender, 1/28/20.
Rec. Doc. 16-14 at 217, Multiple Offender Written Reasons per La. R.S. 15:529D(3), 3/7/22.
Anderson has failed to establish that the denial of relief by the state courts on this ground was contrary to or an unreasonable application of Strickland. He is not entitled to relief on this claim.
B. March 29, 1999 Predicate Conviction (Claim 10)
Anderson next argues that the State failed to prove that the five-year cleansing period had not elapsed between the March 29, 1999 convictions and the instant offense. He appears to argue that he was released from the March 29, 1999 sentences on February 7, 2004. In conjunction with this claim, Anderson argues that the state district court erred in allowing the State to rely on an unauthenticated and uncertified computer printout to establish the full term closure dates and that he was deprived of a fifteen-day opportunity to research and prepare a proper objection under Louisiana law. The State responds that the state courts' decision was not manifestly unreasonable.
Initially, at the habitual offender hearing, John Rohner of Probation and Parole testified that he reviewed Anderson's Department of Corrections (“DOC”) file. Rohner, over the objection of defense counsel, referred to a computer printout of Anderson's DOC records, which were official records, to refresh his recollection. To the extent that Anderson alleges that the Trial Court violated state law in allowing Rohner to use the documents to refresh his recollection and in failing to grant Anderson additional time to prepare, his claim is not cognizable. Jones, 600 F.3d at 536; Lampton, 268 Fed.Appx. at 368; Haynes v. Butler, 825 F.2d 921, 924 (5th Cir. 1987) (“state's failure to follow its own sentencing procedures is not reviewable by federal habeas corpus.”). Without a demonstrated constitutional error by the state court, Anderson is not entitled to federal habeas review or relief.
Rec. Doc. 16-15 at 31, Habitual Offender Hearing Transcript (con't), 1/3/22.
Id. at 32-41.
Anderson also claims that the State violated the cleansing period by using a prior conviction which occurred more than five years prior to the instant conviction. During the relevant time period, the statute mandating an enhanced sentence for a multiple offender provided in pertinent part that:
[T]he current offense shall not be counted as, respectively, a second, third, fourth, or higher offense if more than five years have elapsed between the date of the commission of the current offense or offenses and the expiration of the correctional supervision, or term of imprisonment if the offender is not placed on supervision following imprisonment, for the previous conviction or convictions, or between the expiration of the correctional supervision, or term of imprisonment if the offender is not placed on supervision following imprisonment, for each preceding conviction or convictions alleged in the multiple offender bill and the date of the commission of the following offense or offenses.La. Rev. Stat.§ 15:529.1(C)(1). Under Louisiana law, “the expiration of a previous sentence is determined by the date of the actual discharge from supervision by the Department of Corrections.” State ex rel. Wilson v. Maggio, 422 So.2d 1121, 1123 (La. 1982); State v. Washington, 927 So.2d 271, 272 (La. 2006); State v. Meadows, 247 So.3d 1018, 1024 (La.App. 2d Cir. 2018) (citation omitted).
In this case, John Rohner, a supervisor of the Probation and Parole Office, testified that he reviewed the Department of Corrections record related to Anderson. Rohner testified that, according to the Department of Corrections records, there was a full term closure of Anderson's March 29, 1999 convictions on September 1, 2010. Anderson committed the instant offense on April 30, 2012, less than five years after Anderson's release from the sentences imposed on March 29, 1999. As a result the cleaning period did not elapse prior to Anderson's commission of the offense in this case, and the use of the conviction was appropriate.
Rec. Doc. 16-15 at 31-32, Habitual Offender Hearing Transcript (con't), 1/3/22.
Id. at 33-34, 36.
Rec. Doc. 16-2 at 59, Amended Bill of Indictment, 4/8/13.
Anderson is not entitled to federal habeas relief as to this claim.
C. May 12, 2003 Predicate Conviction (Claim 11)
Anderson claims that his May 12, 2003 conviction could not be utilized as a predicate conviction because his plea was not knowingly and voluntarily entered. Specifically, he claims that he was not advised by the sentencing court of the right to post-conviction relief and the possibility that the conviction could be later used against him in a habitual offender proceeding. He also claims that he received ineffective assistance of counsel at his May 12, 2003 guilty plea because his counsel allowed him to enter his guilty plea in a group colloquy.
As argued by the State, Anderson is actually challenging the validity of this predicate conviction. For this claim, he is not entitled to federal habeas review. Specifically, Anderson's claim related to his May 12, 2003 predicate conviction is barred by Lackawanna County District Attorney v. Cross, 532 U.S. 394 (2001). In Lackawanna, the United States Supreme Court stated:
[W]e hold that once a state conviction is no longer open to direct or collateral attack in its own right because the defendant failed to pursue those remedies while they were available (or because the defendant did so unsuccessfully), the conviction may be regarded as conclusively valid. If that conviction is later used to enhance a criminal sentence, the defendant generally may not challenge the enhanced sentence through a petition under § 2254 on the ground that the prior conviction was unconstitutionally obtained.Id. at 403-04 (citation omitted). Because Anderson's May 12, 2003 predicate conviction is no longer open to direct or collateral attack, Lackawanna prohibits him from challenging his current enhanced sentence in this proceeding on the ground that the predicate conviction was illegal. See Silvo v. Cain, No. 09-3692, 2009 WL 3151166, at *2 (E.D. La. Sept. 30, 2009); Johnson v. Hubert, No. 08-688, 2008 WL 1746727, at *3 (E.D. La. Apr. 11, 2008).
The state courts' denial of relief was not contrary to or an unreasonable application of Supreme Court precedent. Anderson is not entitled to relief as to this claim.
D. November 5, 2004 Predicate Conviction (Claim 12)
Anderson next argues that the State could not use his November 5, 2004 conviction to enhance his sentence. His claim is two-fold. He asserts that he received ineffective assistance of counsel at the mass guilty plea of the predicate conviction and that he was not informed of the collateral consequences of pleading guilty. As a result, Anderson alleges that the plea was not knowingly and voluntarily entered. He further claims that the predicate conviction did not fall within the cleansing period.
The State is correct that, to the extent that Anderson attempts to attack the validity of his November 5, 2004 conviction, he is not entitled to relief. Lackawanna, 532 U.S. at 403-04.
Further, Anderson fails to show that the cleansing period related to this predicate conviction elapsed prior to the offense in this case. According to the habitual offender petition, Anderson was convicted of possession or introduction of contraband into a penal institution in case number 87690 on November 4, 2004. Rohner testified that the full-term closure date for case number 87690 was September 1, 2010. Anderson committed the instant offense on April 30, 2012, less than two years later.
Rec. Doc. 16-11 at 31, Information to Establish Defendant's Status as a Habitual Offender, 1/28/20.
Rec. Doc. 16-15 at 36-37, Habitual Offender Hearing Transcript (con't), 1/3/22.
Rec. Doc. 16-2 at 59, Amended Bill of Indictment, 4/8/13.
For these reasons, Anderson is not entitled to habeas relief for this claim.
E. Excessive Sentence (Claim 13)
Anderson's final claim is that his twenty-year sentence is excessive. The State responds that Anderson's sentence was the minimum required under Louisiana law based on his status as a fourth felony offender and that Anderson's claim is without merit.
In the last reasoned opinion, the Louisiana First Circuit Court of Appeal found that “[t]he sentence imposed was not grossly disproportionate to the severity of the offense and, therefore, was not unconstitutionally excessive.”
Anderson, 357 So.3d at 854; Rec. Doc.16-15 at 100, La.App.1st Cir. Opinion, 2022 KA 0587, 12/22/22.
To the extent Anderson challenges the state trial courts' compliance with Louisiana's sentencing laws and the Louisiana Constitution, his claim is not the cognizable under federal habeas review. Smith v. Cain, 253 F.3d 700, 2001 WL 498441, at *1 (5th Cir. 2001). These alleged errors cannot be remedied in a federal habeas corpus proceeding. See, e.g., Butler v. Cain, 327 Fed.Appx. 455, 457 (5th Cir. 2009); Haynes v. Butler, 825 F.2d 921, 924 (5th Cir. 1987) (“... a state's failure to follow its own sentencing procedures is not reviewable by federal habeas corpus....[T]his Court will not review the state court's findings regarding the constitutionality of petitioner's sentence under state law.”).
Instead, federal courts afford broad discretion to a state trial court's sentencing decision that falls within state statutory limits. Haynes, 825 F.2d at 923-24; see also Turner v. Cain, 199 F.3d 437, 1999 WL 1067559, at *3 (5th Cir. 1999) (Table, Text in Westlaw) (because sentence was within Louisiana statutory limits and within trial court's discretion, petitioner failed to state cognizable habeas claim for excessive sentence)). When a state sentence is within the statutory limits, a federal habeas court will not upset the terms of the sentence unless it is shown to be grossly disproportionate to the gravity of the offense. See Harmelin v. Michigan, 501 U.S. 957, 993-95, 111 S.Ct. 2680, 115 L.Ed.2d 836 (1991); Solem v. Helm, 463 U.S. 277, 290-91 & n.17, 103 S.Ct. 3001, 77 L.Ed.2d 637 (1983). “[W]hen a threshold comparison of the crime committed to the sentence imposed leads to an inference of ‘gross disproportionality,'” a court then considers (a) the sentences imposed on other criminals in the same jurisdiction; and (b) the sentences imposed for commission of the same offense in other jurisdictions. Smallwood v. Johnson, 73 F.3d 1343, 1346-47 (5th Cir. 1996); McGruder v. Puckett, 954 F.2d 313, 316 (5th Cir. 1992).
If the sentence is not “grossly disproportionate,” in the first instance, the inquiry is finished. United States v. Gonzales, 121 F.3d 928 (5th Cir. 1997). As the Supreme Court has noted, outside the context of capital punishment, successful proportionality challenges are “exceedingly rare,” and constitutional violations are sustained in only “extreme” or “extraordinary” cases. Ewing v. California, 538 U.S. 11, 23-30, 123 S.Ct. 1179, 155 L.Ed.2d 108 (2003) (citations omitted); Lockyer v. Andrade, 538 U.S. 63, 123 S.Ct. 1166, 155 L.Ed.2d 144 (2003) (rejecting a proportionality challenge where the defendant was sentenced to two consecutive terms of 25 years to life for two felony counts of petty theft for stealing $150.00 worth of videotapes).
For purposes of federal habeas review under the AEDPA standard, an excessive sentence claim presents a question of law. Chatman v. Miller, No. 05-1481, 2005 WL 3588637, at *5 (E.D. La. Nov. 9, 2005); Davis v. Cain, 44 F.Supp.2d 792, 798 (E.D. La. Mar. 3, 1999); Jones v. Kaylo, No. 99-0567, 1999 WL 544680, at *1 (E.D. La. July 26, 1999). The Court must determine whether the state courts' denial of relief was contrary to or an unreasonable application of Supreme Court law.
Anderson's situation does not qualify as an extraordinary case where the sentence is unconstitutionally disproportionate to the crime. Under Louisiana law at the time, the prison sentence for theft when the misappropriation of taking amounts to a value of $1500 or more was a term of imprisonment of not more than ten years. La. Rev. Stat. § 14:67(B)(1). The Louisiana habitual offender law provides in relevant part that, if the fourth or subsequent felony is such that upon a first conviction the offender would be punishable by imprisonment for any term less than his natural life, the person shall be imprisoned for not less than twenty years nor more than twice the longest possible sentence prescribed for a first conviction. La. Rev. Stat. § 15:529.1(A)(4)(a). Additionally, a fourth felony offender who has no prior felony defined as a crime of violence or as a sex offense “shall be imprisoned for not less than twenty years nor more than twice the longest possible sentence prescribed for a first conviction. If twice the possible sentence prescribed for a first conviction is less than twenty years, the person shall be imprisoned for twenty years.” La. Rev. Stat. § 15:529.1(A)(4)(b).
The Trial Court sentenced Anderson to a term of twenty years in prison. Anderson's sentence clearly was the mandatory statutory sentence set by the Louisiana legislature for the crime he committed. Generally, a sentence within the limits imposed by statute is neither excessive not cruel and unusual under the Eighth Amendment. This is so because substantial deference is accorded to the legislature as it, and not the courts, possess the broad authority to determine the types and limits of punishments for crimes. Hamdalla v. Vannoy, No. 18-3348, 2018 WL 11295985 at *20 (E.D. La. October 12, 2018), adopted, 2021 WL 949681 (E.D. La. Mar. 12, 2021).
At sentencing, the Trial Court found that the penalty for a fourth felony offender convicted of theft of over $1500 was twenty years and further found that the sentence was not excessive or grossly out of proportion to the severity of the crime. The Louisiana First Circuit Court of Appeal found that Anderson had now shown by clear and convincing evidence that the mandatory sentence grossly disproportionate to his offense, and explained that “rather than being exceptional, he is exactly the kind of repeat offender for whom the mandatory minimum sentence was enacted.” The court, in finding that a sentence of 20 years was proportionate and warranted for this crime, explained that: (1) since 1987 Anderson had been convicted of at least twelve felony offenses and fifteen misdemeanor offenses; (2) the state trial court had found that Anderson showed no remorse for any of the offenses he committed; and (3) none of the felony convictions were deemed crimes of violence.
Rec. Doc. 16-15 at 70-71, Habitual Offender Sentencing Transcript, 3/7/22.
Anderson, 357 So.3d at 853; Rec. Doc.16-15 at 99-100, La.App.1st Cir. Opinion, 2022 KA 0587, 12/22/22.
Id. at 853-84; Rec. Doc.16-15 at 100, La.App.1st Cir. Opinion, 2022 KA 0587, 12/22/22.
Finally, a survey of the limited number of Louisiana cases in the public domain establishes that Anderson's sentence was not out of line with sentences imposed upon similarly situated defendants. State v. Moyers, 167 So.3d 740 (La.App. 1st Cir. 2014) (twenty-year sentence for fourth felony offender convicted of theft); State v. Hatcher, No. 2014 KA 1364, 2015 WL 1033698 (La.App. 1st Cir. 2015) (twenty-year sentence for fourth felony offender convicted of theft).
This case simply does not qualify as a rare situation in which the difference between the crime and the sentence was unconstitutionally disproportionate. Anderson fails to demonstrate that the adjudication of his excessive sentence claim was contrary to or involved an unreasonable application of clearly established Supreme Court law. Accordingly, he is not entitled to relief on the excessive sentence claim.
XII. Request for Documents
Anderson claims that he has shown a particularized need for the District Attorney file, including the statements of I.N. and Cyrpian. The State responds that this claim is on cognizable on habeas review.
Rec. Doc. 5-1 at 42-50.
A review of the record demonstrates that Anderson filed a motion for production of documents which was denied by the state trial court. The Louisiana First Circuit denied his related writ application finding he had not shown a particularized need for the documents. In connection with his state post-conviction application, Anderson requested that he be provided with the audio/video recording of I.N.'s May 10, 2012 statement, all recorded statements by Cyprian, and the D.A. file. That request apparently was denied. The Louisiana First Circuit denied Anderson's related writ application finding that his request for production of documents was moot in light of the denial of Anderson's application for post-conviction relief. On November 13, 2020, Anderson sent a “second request” to the District Attorney's Office seeking a copy of the District Attorney file. The state trial court found that the State was exempt from answering the request for the D.A.'s file. It does not appear that Anderson sought review of that order.
This motion cannot be located in the state court record.
State v. Anderson, No. 2017 KW 0977, 2017 WL 3888843 (La.App. 1st Cir. 2017) Rec. Doc. 16-9 at 24, La.App.1st Cir. Order, 2017 KW 0977, 9/5/17.
Rec. Doc. 16-8 at 94-106, Supplement to Pending Application for Post-Conviction Relief Filed into this Honorable Court's Record November 15, 2016, 9/27/17 (signed 9/21/17).
Rec. Doc. 16-8 at 115, Tangipahoa Parish Clerk of Court Letter, 10/3/17; id. at 117, Minute Entry, 11/14/17.
State v. Anderson, No. 2017 KW 1373, 2017 WL 6618819 (La.App. 1st Cir. 2017); Rec. Doc. 16-8 at 126, La. 1st Cir. Order, 2017 KW 1373, 12/28/17.
Rec. Doc. 16-12 at 180-81, Second Request, undated; see id. at 178-79, State's Answer to Defendant's “Second Request,” 11/18/20. The State explained that it had not received a first request. Id. at 178, State's Answer to Defendant's “Second Request,” 11/18/20.
Rec. Doc. 16-12 at 179, Order 11/17/20.
Anderson does not present a cognizable issue for federal habeas review based on his perceived rights under state law. It is well settled that “it is not the province of a federal habeas court to reexamine state-court determinations on state-law questions.” Estelle, 502 U.S. at 67-68; see also Swarthout v. Cooke, 562 U.S. 216, 219 (2011) (federal habeas review does not lie for errors of state law). A federal court does “not sit as [a] ‘super' state supreme court in a habeas corpus proceeding to review errors under state law.” Wilkerson v. Whitley, 16 F.3d 64, 67 (5th Cir. 1994) (citation and quotation omitted).
Under federal law, on direct appeal, an indigent criminal has an absolute right to a trial transcript, or an alternative device that fulfills the same function. Griffin v. Illinois, 351 U.S. 12, 18-20 (1956). There is no question that the trial transcript was in fact provided to petitioner's appellate counsel, which Anderson does not deny. There is, however, no general due-process right of access to state-court records on collateral review in criminal proceedings. See, e.g., United States v. MacCollom, 426 U.S. 317, 323-24 (1976) (no constitutional right to transcripts on collateral review of a conviction; a federal petitioner on collateral review must demonstrate that his claims are not frivolous and that transcripts are needed to prove his claims before he is entitled to a free copy of pertinent transcripts); Deem v. Devasto, 140 Fed.Appx. 574, 575 (5th Cir. 2005); Cook v. Cain, No. 15-1882, 2015 WL 6702290, at *2 (E.D. La. Nov. 3, 2015).
It is well-established that a habeas petitioner is not entitled to records free of charge for the purpose of conducting a “fishing expedition”, hoping to uncover evidence to support his application for habeas relief. See generally Jackson v. Estelle, 672 F.2d 505, 506 (5th Cir. 1982). On collateral review, the burden is on the petitioner to positively demonstrate that there is a particularized need for the requested documents and transcripts and that the request is not frivolous. MacCollom, 426 U.S. at 326; Smith v. Beto, 472 F.2d 164, 165 (5th Cir. 1973) (affirming the lower court's finding that there was no constitutional violation where the petitioner's attorney had access to the state court record and trial transcripts on direct appeal and where “the petitioner did not need a transcript in order to establish his contention that he was denied effective counsel at his state trial”). In the absence of a showing of a “particularized need” for such discovery, petitioner is not entitled to habeas corpus relief. See Robinson v. Cain, No. 05-5478, 2011 WL 890973 at *8 (E.D. La. Feb. 7, 2011) (Chasez, M.J.), adopted, 2011 WL 901193 (E.D. La. Mar. 14, 2011)(Zainey, J.) (citing Pittsburgh Plate Glass Co., v. United States, 360 U.S. 395, 399-01 s(1959) (because defendant failed to meet burden of showing “particularized need”, trial court did not err in refusing to disclose grand jury testimony)).
Based on the unsubstantiated nature of Anderson's ineffective assistance of counsel and other claims, all of which are meritless, he has not met his burden of showing particularized need for the records. He is not entitled to relief as to this claim.
XIII. Recommendation
For the foregoing reasons, it is RECOMMENDED that Maurice Anderson's petition for the issuance of a writ of habeas corpus filed pursuant to 28 U.S.C. § 2254 be DISMISSED WITH PREJUDICE.
A party's failure to file written objections to the proposed findings, conclusions, and recommendation in a magistrate judge's report and recommendation within fourteen (14) days after being served with a copy shall bar that party, except upon grounds of plain error, from attacking on appeal the unobjected-to proposed factual findings and legal conclusions accepted by the district court, provided that the party has been served with notice that such consequences will result from a failure to object. Douglass v. United Servs. Auto. Ass'n, 79 F.3d 1415, 1430 (5th Cir. 1996).
Douglass referenced the previously applicable ten-day period for the filing of objections. Effective December 1, 2009, 28 U.S.C. § 636(b)(1) was amended to extend the period to fourteen days.