Brisbon v. Cain

Full title: WARREN BRISBON v. BURL CAIN, WARDEN

Court: United States District Court, E.D. Louisiana

Date published: Jan 18, 2000

Civ. No. 99-3078, Section: "C" (5) (E.D. La. Jan. 18, 2000)

Opinion

Civ. No. 99-3078, Section: "C" (5).

January 18, 2000.

REPORT AND RECOMMENDATION

UNITED STATES MAGISTRATE JUDGE

Pursuant to 28 U.S.C. § 636(b) and Local Rule 73.2E(A), presently before the Court is the application for writ of habeas corpus of petitioner, Warren Brisbon, and the State's response thereto. (Rec. docs. 1, 4). Having determined that an evidentiary hearing is not necessary, it is recommended, for the reasons that follow, that Brisbon's petition be dismissed with prejudice.

Petitioner Brisbon is a state prisoner currently incarcerated at the Louisiana State Penitentiary, Angola, Louisiana. On January 29, 1993, Brisbon pled guilty to the crime of manslaughter, as well as to being a second felony offender under LSA-R.S. 15:529.1, in the Criminal District Court for the Parish of Orleans and was thereupon sentenced to forty-two years at hard labor with credit for time served. Brisbon did not appeal his conviction or sentence which thus became final in the early portion of 1993.

On April 10, 1995, Brisbon simultaneously filed in the Louisiana Fourth Circuit Court of Appeal a motion for production of his guilty plea/sentencing transcript and an application for writ of mandamus.¹ (Vol. I, pp. 76-81). On May 17, 1995, the Fourth Circuit granted Brisbon's writ application ". . . for the sole purpose of transferring the attached motion for production of the Boykin and sentencing transcript to the trial court for consideration within sixty (60) days of this order." State v. Brisbon, No. 95-K-0800 (La.App. 4^th Cir. May 17, 1995) (unpublished order).

1 In his mandamus application, petitioner represented that he had filed a motion for production of his guilty plea/sentencing transcript in the state trial court in December of 1994 but had received no ruling thereon. (Vol. I, p. 80). A review of the state court record does not reveal that any such motion was filed in the trial court.

On March 17, 1997, the state trial judge issued a minute entry indicating that he had received the aforementioned order from the Louisiana Fourth Circuit and that he, in turn, had ordered the court reporter to provide Brisbon with the requested transcript. (Vol. I, p. 117). A separate order directed to the court reported was signed the following day. (Vol. I, p. 74). By minute entry dated June 12, 1997, the trial judge indicated that he had received a letter from Brisbon requesting that the court reporter provide him with the sought-after transcript. The minute entry goes on to state that Brisbon had previously been forwarded the transcript but that another copy was being mailed to him. (Vol. I, p. 116).

On October 7, 1997, Brisbon, through counsel, filed an application for post-conviction relief in the trial court in which he argued that his competency to stand trial had been determined under an unconstitutional standard. That application was denied on April 17, 1998. (Vol. I, pp. 59-60). Thereafter, Brisbon filed a "motion to correct an illegal sentence" in the state trial court. The filing date on that motion is not apparent but it does bear a certificate of service dated April 13, 1998. (Vol. I, pp. 38-58).² That motion was denied on October 16, 1998. (Vol. I, p. 12). Following this unfavorable ruling, Brisbon filed a writ application in the Louisiana Fourth Circuit on November 24, 1998. That application was denied on December 23, 1998. State v. Brisbon, No. 98-K-2802 (La.App. 4^th Cir. Dec. 23, 1998) (unpublished order). Brisbon's subsequent writ application to the Louisiana Supreme Court, filed on January 22, 1999, was denied on May 14, 1999. State ex rel. Brisbon v. State, ___ So.2d ___, 1999 WL 334891 (La. 1999). Brisbon signed and dated his federal habeas application on September 15, 1999. (Rec. doc. 1).

2 A second "motion to correct an illegal sentence", identical to the first but handwritten, also appears in the state court record. It bears a filing date of December 2, 1998. (Vol. I, pp. 13-34)

In the instant petition under 28 U.S.C. § 2254, Brisbon alleges that he was not properly advised of his rights under R.S. 15:529.1 prior to admitting to being a second felony offender and that his counsel had promised him that he would only receive a twenty-one year sentence. The State concedes that these claims were presented to the Louisiana Supreme Court in Brisbon's writ application to that tribunal. (Rec. doc. 4, p. 1). State court remedies have thus been exhausted. 28 U.S.C. § 2254(b)(1)(A).

Because Brisbon's conviction became final before the effective date of the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), Pub.L. No. 104-132, 110 Stat. 1214 (1996) (effective April 24, 1996), he had one year, or until April 24, 1997, to file his habeas petition in this Court, Flanagan v. Johnson, 154 F.3d 196, 202 (5^th Cir. 1998), excluding any time that ". . . aproperly filed application for State post-conviction or other collateral review with respect to the pertinent judgment or claim . . . [was] pending . . ." in the state courts. 28 U.S.C. § 2244(d)(2) (emphasis added); Brisbane v. Beshears, 161 F.3d 1, 1998 WL 609926 (4^th Cir. 1998); Gray v. Waters, 26 F. Supp.2d 771 (D. Md. 1998), appeal dismissed, 178 F.3d 1283, 1999 WL 270370 (4^th Cir. 1999). See also Sonnier v. Johnson, 161 F.3d 941, 944-45 (5^th Cir. 1998); Neslo v. Cain, 156 F.3d 182 (5^th Cir. 1998) (table)

As noted in the procedural history set forth above, the only matter Brisbon arguably had pending before the state courts between April 24, 1996, the effective date of the AEDPA, and April 24, 1997, the expiration of the one-year grace period allowed by Flanagan, was a motion for production of hisBoykin/sentencing transcript that he had filed directly with the Louisiana Fourth Circuit as opposed to the trial court. Because such a motion is preliminary in nature and does not directly call into question the validity of a defendant's conviction or sentence, the Court does not believe that it qualifies as an ". . . application for State post-conviction or other collateral review with respect to the pertinent judgment or claim . . ." so as to suspend the running of the one-year statute of limitations under § 2244(d)(2).

Nor does the Court believe that the pendency of Brisbon's motion for production of documents warrants that the one-year limitation period be equitably tolled during that time. "The doctrine of equitable tolling preserves a plaintiff's claims when strict application of the statute of limitations would be inequitable." Davis v. Johnson, 158 F.3d 806, 810 (5^th Cir. 1998), cert. denied, ___ U.S. ___, 119 S.Ct. 1474 (1999) (citation and internal quotation marks omitted). "'Equitable tolling applies principally where the plaintiff is actively misled by the defendant about the cause of action or is prevented in some extraordinary way from asserting his rights.'" Coleman v. Johnson, 184 F.3d 398, 402 (5^th Cir. 1999) (quoting Rashidi v. American President Lines, 96 F.3d 124, 128 (5^th Cir. 1996)). Brisbon was present in open court when he pled guilty and was sentenced on January 29, 1993. He was an active participant in the plea colloquy which he now challenges as insufficient. It should also have been apparent to Brisbon when his punishment was meted out that his sentence was twice the length of that which his attorney had allegedly promised him. The transcript of the proceeding was not necessary to advance the claims upon which he now seeks federal habeas relief. Brisbon's petition is untimely and should be dismissed as such.

Alternatively, review of Brisbon's claims is barred by the procedural default doctrine. When faced with the claims that Brisbon urges in his habeas petition, the Louisiana Supreme Court, the last state court to be presented with said claims, ruled as follows:

[d]enied. La. C.Cr.P. art. 930.8; State ex rel. Glover v. State, 93-2330 (La. 9/5/95), 660 So.2d 1189; La.C.Cr.P. art. 930.3; State ex rel. Melinie v. State, 93-1380 (La. 1/12/96), 665 So.2d 1172.

State ex rel. Brisbon v. State, ___ So.2d ___, 1999 WL 334891 (La. 1999)

With limited exceptions not relevant here, Article 930.8 provides that no application for post-conviction relief shall be considered by the state courts if it is filed more than three years after the judgment of conviction and sentence of a defendant have become final. The Louisiana Supreme Court has determined that Article 930.8 passes constitutional muster, State ex rel. Glover v. State, 660 So.2d 1189 (La. 1995), and the Fifth Circuit Court of Appeals has held that Article 930.8 constitutes an independent and adequate state procedural rule that is regularly applied by the state courts. Glover v. Cain, 128 F.3d 900, 902 (5^th Cir. 1997).

Federal habeas review of a constitutional claim is barred by the procedural default doctrine if the last state court to review the claim clearly and expressly states that its judgment rests on a procedural bar. Harris v. Reed, 489 U.S. 255, 261, 109 S.Ct. 1038, 1042 (1989). The Louisiana Supreme Court has done precisely that, citing Article 930.8 and the Glover decision in denying Brisbon's most recent writ application to that tribunal. An exception to this rule exists if the prisoner can demonstrate cause for the procedural default and actual prejudice as a result of the alleged constitutional violation, or if he demonstrates that the failure to entertain the claims will result in a fundamental miscarriage of justice. Coleman v. Thompson, 501 U.S. 722, 750, 111 S.Ct. 2546, 2565 (1991).

Brisbon makes no showing of cause for failing to bring the claims asserted herein to the state courts prior to the expiration of the time period set forth in Article 930.8. Without a showing of cause, the Court need not consider the element of prejudice. See Murray v. Carrier, F477 U.S. 478, 494-95, 106 S.Ct. 2639, 2649 (1986). Moreover, because Brisbon does not assert his actual innocence, he has not demonstrated that a fundamental miscarriage of justice will occur if his claims are not considered. Glover, 128 F.3d at 904.

On the merits, Brisbon's claims falter as well. He first argues that he was not advised of his rights under R.S. 15:529.1 prior to admitting to the allegations contained in the multiple offender bill of information. Brisbon's guilty pleas to the manslaughter charge and to the multiple offender bill of information were part of a negotiated agreement with the State. Prior to the rearraignment, Brisbon executed a "Waiver of Rights — Plea of Guilty Multiple Offender — LA.R.S. 15:529.1" form in which he acknowledge receipt, review of, and an understanding of the allegations contained in the multiple offender bill of information. Official state court records like the guilty plea form are entitled to a presumption of regularity and are accorded great weight in a federal habeas proceeding.Carter v. Collins, 918 F.2d 1198, 1202-03 n. 4 (5^th Cir. 1990);Bonvillain v. Blackburn, 780 F.2d 1248, 1252 (5^th Cir.), cert. denied, 476 U.S. 1143, 106 S.Ct. 2253 (1986). The guilty plea form also reflects Brisbon's awareness of the forty-two year sentence, the maximum allowed, that not only could but would be imposed upon his admission to the recidivism charge. A defendant who is aware of the maximum term of imprisonment he faces is aware of the consequences of his plea, thus rendering it voluntary and intelligent. Hobbs v. Blackburn, 752 F.2d 1079, 1082 (5^th Cir.), cert. denied, 474 U.S. 838, 106 S.Ct. 117 (1985).

At the January 29, 1993 rearraignment, the trial judge also duly advised Brisbon that by admitting to being a multiple offender he was waiving his right to remain silent, to have court-appointed counsel, and to compulsory process. Under oath, Brisbon acknowledged an understanding of those rights. Such sworn and solemn declarations in open court carry a strong presumption of verity. Blackledge v. Allison, 431 U.S. 63, 74, 97 S.Ct. 1621, 1629 (1977); Moya v. Smith, 696 F.2d 329, 332 (5^th Cir. 1983) Sentence enhancement proceedings not being determinative of guilt or innocence, an accused does not possess the full range of due process and other constitutional rights attendant to such an adjudication. Buckley v. Butler, 825 F.2d 895, 902-03 (5^th Cir. 1987), cert. denied, 486 U.S. 1009, 108 S.Ct. 1738 (1988). Under the totality of circumstances, Brisbon's admission to the multiple offender bill of information was voluntary and intelligent and, therefore, constitutionally sufficient. See Holloway v. Lynaugh, 838 F.2d 792, 793 (5^th Cir.), cert. denied, 488 U.S. 838, 109 S.Ct. 104 (1988); Joseph v. Butler, 838 F.2d 786, 789-91 (5^th Cir. 1988); Buckley, 825 F.2d at 902-04. Finally, a state's failure to follow its own sentencing procedures is not reviewable through federal habeas proceedings.Joseph, 838 F.2d at 789 n. 2; Haynes v. Butler, 825 F.2d 921, 924 (5^th Cir. 1987), cert. denied 484 U.S. 1014, 108 S.Ct. 717 (1988); Jones v. Estelle, 622 F.2d 124, 126 (5^th Cir.), cert.denied, 449 U.S. 996, 101 S.Ct. 537 (1980).

Brisbon also alleges that his counsel was ineffective for allegedly promising him that he would receive a twenty-one year sentence and by failing to investigate the predicate conviction recited in the multiple offender bill of information. In order to prevail on a claim of an unkept plea bargain, a ". . . petitioner must prove '(1) exactly what the terms of the alleged promise were; (2) exactly when, where, and by whom such a promise was made; and (3) the precise identity of an eyewitness to the promise.'" Self v. Blackburn, 751 F.2d 789, 793 (5^th Cir. 1985) (quoting Hayes v. Maggio, 699 F.2d 198, 203 (5^th Cir. 1983)). Brisbon makes no such showing here. The Court also notes that Brisbon originally faced a sentence of life imprisonment which was reduced to forty-two years as a result of counsel's efforts. That being the case, there is no reasonable probability that Brisbon would have rejected the plea agreement and gone to trial had counsel performed the investigation petitioner suggests. See Hill v. Lockhart, 474 U.S. 52, 106 S.Ct. 366 (1985). And the Court having previously determined that Brisbon's admission to the sentence enhancement charge was voluntary and intelligent under the totality of the circumstances, any complaints he may have had regarding the validity of the predicate conviction were waived. Johnson v. Puckett, 930 F.2d 445, 449-50 (5^th Cir.),cert. denied, 502 U.S. 890, 112 S.Ct. 252 (1991); Ellis v. Lynaugh, 883 F.2d 363, 366 (5^th Cir. 1989).

RECOMMENDATION

For the foregoing reasons, it is recommended that the application for federal habeas corpus relief of Warren Brisbon be dismissed with prejudice.

A party's failure to file written objections to the proposed findings, conclusions, and recommendation contained in a magistrate judge's report and recommendation within 10 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 Services Auto. Assoc., 79 F.3d 1415 (5th Cir. 1996) (en banc).

New Orleans, Louisiana, this 18th day of January, 2000.

MINUTE ENTRY BARBIER, J. January 18, 2000