Opinion
Civil Action No. 03-1928 Section: "C" (5).
July 26, 2004
ORDER AND REASONS
Before the Court are Petitioner's, Roger Comeaux's, timely objections to the Magistrate's Report and Recommendation of April 27, 2004. The Court, after considering the Petition under 28 U.S.C. § 2254 for Writ of Habeas Corpus by a Person in State Custody, the record, the applicable law, the Report and Recommendation of the United States Magistrate Judge and Plaintiff's Objections, and having conducted a de novo review of those portions of the Report and Recommendation to which objections are made as required by 28 U.S.C. § 636(b)(1), hereby approves the Report and Recommendation of the United States Magistrate Judge and adopts it as its opinion in this matter insofar as it deals with the waiver of jury trial, his multiple offender status and his ineffective assistance of counsel claim as to the failure of his lawyer to move for a judgment of acquittal. The Court grants an evidentiary hearing as to Mr. Comeaux's claim that his counsel was ineffective by having Mr. Comeaux testify at trial.
Petitioner sought an extension in which to file his objections to the magistrate's report. The Court allowed Petitioner until June 21, 2004 to file his objections. Fed. Rec. Doc. 10. Those objections, postmarked June 21, 2004, are timely. Fed. Rec. doc. 11.
Ineffective Assistance of Counsel: Claims 3 and 4
In his objection, Petitioner argues that, by virtue of the State's failure to present evidence establishing the essential elements of the crime of simple burglary, his counsel was ineffective for failing to move for an acquittal and subsequently allowing Petitioner to testify. This is a reassertion of the third and fourth claims raised in Mr. Comeaux's federal petition.The Court begins with the maxim that "it is not the province of a federal habeas court to reexamine state-court determinations on state-law questions." Estelle v. McGuire, 502 U.S. 62, 68, 112 S.Ct. 475, 480, 116 L.Ed.2d 385 (1991). Accordingly, "in conducting habeas review, a federal court is limited to deciding whether a conviction violated the Constitution, laws, or treaties of the United States." Id. In other words, this Court "can grant relief only if the [petitioner] is in custody in violation of the federal Constitution or federal laws." Neyland v. Blackburn, 785 F.2d 1283, 1292 (5th Cir. 1986). Thus, "any complaint that the Louisiana trial court failed to comply with Louisiana law . . . is a matter for resolution by the Louisiana courts," not the federal courts. Francis v. Blackburn, 1987 U.S. Dist. LEXIS 2771, 1987 WL 9268 (E.D. La. 1987). It is within those parameters that this Court's review of whether or not Petitioner's constitutional rights were violated is framed.
In Strickland v. Washington, 466 U.S. 668 (1984), the United States Supreme Court established a two-prong test for evaluating claims of ineffective assistance of counsel. A petitioner seeking relief must demonstrate that counsel's performance was deficient and that the deficient performance prejudiced his defense.See Strickland, 466 U.S. at 697.
To prevail on the deficiency prong, petitioner must demonstrate that counsel's conduct fails to meet the constitutional minimum guaranteed by the Sixth Amendment. See Styron v. Johnson, 262 F.3d 438, 450 (5th Cir. 2001), cert. denied, 534 U.S. 1163 (2002). "Counsel's performance is deficient if it falls below an objective standard of reasonableness." Little v. Johnson, 162 F.3d 855, 860 (5th Cir. 1998). Analysis of counsel's performance must take into account the reasonableness of counsel's actions in light of all the circumstances. See Strickland, 466 U.S. at 689. "[I]t is necessary to `judge . . . counsel's challenged conduct on the facts of the particular case, viewed as of the time of counsel's conduct.'" Lockhart v. Fretwell, 506 U.S. 364, 371 (1993) (quoting Strickland, 466 U.S. at 690) (emphasis added). Petitioner must overcome a strong presumption that the conduct of his trial counsel falls within a wide range of reasonable representation. See Crockett v. McCotter, 796 F.2d 787, 791 (5th Cir. 1986); Mattheson v. King, 751 F.2d 1432, 1441 (5th Cir. 1985).
In order to prove prejudice with respect to trial counsel, 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." Strickland, 466 U.S. at 694. In this context, a reasonable probability is "a probability sufficient to undermine confidence in the outcome." Id. In making a determination as to whether prejudice occurred, courts must review the record to determine "the relative role that the alleged trial errors played in the total context of [the] trial."Crockett, 796 F.2d at 793.
Petitioner bears the burden of proof when asserting a claim for ineffective assistance of counsel. Petitioner "must demonstrate, by a preponderance of the evidence, that his counsel was ineffective." Jernigan v. Collins, 980 F.2d 292, 296 (5th Cir. 1993); see also Clark v. Johnson, 227 F.3d 273, 284 (5th Cir. 2000). If a court finds that petitioner has made an insufficient showing as to either of the two prongs of inquiry, i.e. deficient performance or actual prejudice, it may dispose of the claim without addressing the other prong.Strickland, 466 U.S. at 697.
A claim of ineffective assistance of counsel is a mixed question of law and fact. Moore v. Cockrell, 313 F.3d 880, 881 (5th Cir. 2002), cert. denied, ___ U.S. ___, 123 S.Ct. 1768 (2003). Therefore, this Court must defer to the state court on these claims unless that decision "was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States." 28 U.S.C. § 2254(d)(1). Against this analytical framework, the Court addresses Mr. Comeaux's objections.
Petitioner objects to the Magistrate Judge's Report finding that his counsel was not ineffective where he failed to move for a judgement of acquittal at the close of the State's case in chief. Louisiana law allows for the entry of a judgement of acquittal at the close of the State's case, upon motion of the defendant or by the trial court on its own motion, where the State fails to demonstrate any evidence of the crime or one of its elements. La. Code Crim. Proc. Ann. art. 778. As noted in the Magistrate Judge's Report and Recommendation, the State sufficiently identified the elements of the crime of simple burglary and presented evidence as to each element. A violation of Louisiana Revised Statute 14:62.2, simple burglary, requires that the State demonstrate the defendant (1) entered a dwelling (2) without authorization and (3) with intent to commit a felony therein. State v. Brown, 626 So.2d 851 (La.Ct.App. 2d Cir. 1991). The crux of petitioner's argument relates to the second element.
While the State's presentation of its case was not as strong as may initially appear, it remains that the State did present evidence supporting the elements of the crime in its case-in-chief. The State clearly satisfied the first and third elements, as testifying witnesses positively identified Petitioner fleeing the dwelling in question, with contraband in hand Testimony also indicated that the dwelling was "ransacked." While the State presented no direct testimony, specifically the resident-owner of the apartment burgled, implicating Petitioner's unauthorized presence, that is an insufficient basis to support a motion for acquittal. As stated above, such a motion will only succeed in the absence of any evidence of the crime or one of its elements. While direct testimony, as the trial court noted at the close of case, is the most effective way to satisfy the second element, circumstantial evidence can be used to show that an unauthorized entry occurred. State v. Torres, 470 So.2d 319, 322 (La.Ct.App. 5th Cir. 1985). Evidence of Petitioner's presence in the apartment in question, his attempted flight, and his possession of contraband, when combined, supply circumstantial evidence that Petitioner's presence was unauthorized. State v. Feraci, 499 So.2d 1218, 1219 (La.App. 4th Cir. 1986); see State v. Schlessinger, 525 So.2d 50, 54 (La.App.Ct. 3d Cir. 1988) (using circumstantial evidence to infer elements of simple burglary). Therefore, the Magistrate Judge's analysis that the State presented some evidence of each element of the crime charged such that the motion for an acquittal would fail, is correct.
The Court departs from the Report and Recommendation to the extent that is suggests Petitioner's unauthorized presence in the apartment complex generally is sufficient circumstantial evidence of unauthorized entry in the burgled apartment. See State v. Martin, 679 So.2d 557, 560 (La.App.Ct. 2d Cir. 1996) (State must prove unauthorized entry into the home burgled).
The Court comes to a different conclusion to the extent Petitioner asserts his trial counsel's assistance was ineffective by urging him to testify, unprepared, in his own behalf. As indicated above, the State presented circumstantial evidence of unauthorized entry in its case in chief such that a motion for acquittal would be unsuccessful. However, whether that circumstantial evidence, absent Petitioner's self-incriminating testimony, would be sufficient to convict is subject to debate.
Reviewing courts are required to afford deference to reasonable tactical decisions made by trial attorneys. However, where the facts dictate that certain decisions were unreasonable, deference must cede to constitutional expectations. This is such a situation. The State presented no direct evidence that Petitioner was without authorization to be in the victim's home, because the State failed to present the victim as a witness. Absent Dr. Russell's testimony, the only means of obtaining direct evidence of a lack of authorization was through the testimony of Mr. Comeaux. In light of the attendant circumstances, the Court is hard pressed to conceive of a rationale for trial counsel's actions. In effect, trial counsel placed Petitioner in the position of perjuring himself or implicating himself — neither of which seem to rise to that objective standard of reasonableness dictated by the United States Constitution. An evidentiary hearing is needed to determine if there was a tactical reason or some other legitimate justification for the defendant testifying.
With respect to the second Strickland prong — prejudice — the trial judge, acting as the finder of fact, indicated significant problems with the State's case in the absence of Petitioner's testimony. He stated:
The inhabited dwelling has to be the apartment. Ordinarily, it would be the burden of the State to bring the person who, in this case, Dr. Russel, who is in charge of that [inhabited dwelling] to say that he did not give the Defendant any authority to enter. The State didn't do that, but here we have the next best thing, we have the Defendant testifying that he did not have any authority, if he would have claimed that he did, the State would have a problem, but he acknowledged that he did not have any authority to enter that apartment. So, that element being established it's just up to the Court to determine whether or not in fact the State has proven that he did enter that apartment with the intent to commit a felony or theft therein. As noted by the Magistrate Judge, the element of lack of authorization can be satisfied by circumstantial evidence. See State v. Tran, 709 So.2d 311, 317 (La App. Ct. 5th Cir. 1998) (broken window indicative of lack of authorization); but see State v. Jacobs, 572 So.2d 1140, 1143-44 (La.App.Ct. 1st Cir. 1990) (finding circumstantial evidence insufficient to prove lack of authorization). The Court notes, however, that in most such cases, the circumstantial evidence supported the victim's direct testimony of lack of authorization and did not stand alone. See State v. Dunn, 708 So.2d 512, 517 (La.App.Ct. 2d Cir. 1998) (circumstantial evidence enhanced victim's testimony on lack of authorization); State v. Christy, 593 So.2d 1322, 1324 (La.App.Ct. 1st Cir. 1991) (dismissing count where victim not located and did not testify); State v. Lowe, 521 So.2d 454, 456 (La.Ct.App. 4th Cir. 1988) (circumstantial evidence supporting lack of authorization).
State Rec., vol. 1 of 2, State v. Comeaux, Trial Transcript, July 28, 1999, at 36-37.
Given that the trial judge was the factfinder and given that he stated on the record that, absent Petitioner's testimony, the State would have had a "problem" proving its case, the Court finds that prejudice under Strickland has been established.
Sufficiency of the Charging Instrument
Finally, the Court notes that for the first time in his objections Petitioner apparently attacks the sufficiency of the accusatory instrument in this case. On the day of trial, the State amended the bill of information from Petitioner "committed simple burglary of an inhabited dwelling located at 1029 So. Peter St., belonging to Dr. Howard Russell" and added the language "and inhabited by Kurt Werling." While the sufficiency of the bill of information, if truly flawed, would raise issues of due process, this amendment, as the trial court aptly noted, added mere surplusage. The amendment neither altered the charge nor relieved the State of any element it was required to prove. A Petitioner's failure to properly raise the sufficiency of the charging instrument in a procedurally proper manner in the state courts precludes review of those claims in a federal habeas petition, especially at this late stage. See Bagwell v. Dretke, No. 2004 WL 1465399, at *3-*4 (5th Cir. 2004) (discussing procedural default, exhaustion and raising of claims). As such, Petitioner's alleged error in this regard is before this Court in a procedurally improper manner; moreover, even if it were properly before the Court, the issue raised would not form a basis for habeas relief as any error indicated was harmless.
State Rec., supp. vol. I of II, State v. Comeaux, Bill of Information.
Accordingly,
IT IS ORDERED that an evidentiary hearing will be held to address Petitioner's claim of ineffective assistance of counsel regarding Petitioner's trial testimony, as framed above.
IT IS FURTHER ORDERED that the Federal Public Defender is conditionally appointed to represent Petitioner, Roger Comeaux, in this habeas proceeding.
By separate order, a copy of an application for determination of indigency is being sent to petitioner. Upon receipt, the Court will determine whether the Federal Public Defender should be appointed to represent Mr. Comeaux in this proceeding.
IT IS FURTHER ORDERED that a status conference be held in this matter on the 18th day of August, 2004, at 1:00 p.m. before United States United States District Judge Helen G. Berrigan, Room 556, United States Courthouse, 500 Poydras Street, New Orleans, Louisiana.
IT IS FURTHER ORDERED that an evidentiary hearing be held in this matter on the 8th day of September, 2004, at 9:00 a.m. before United States United States District Judge Helen G. Berrigan, Courtroom 552, United States Courthouse, 500 Poydras Street, New Orleans, Louisiana.