Opinion
Civil Action No. 01-172 Section "K"(4)
July 16, 2002
Before this Court are plaintiffs Objections to the Report and Recommendation (rec. doc. 10)issued by Magistrate Judge Roby in the above captioned matter. The circumstances leading up to petitioner's arrest and conviction involve two incidents which were concisely described in the Report and Recommendation:
The petitioner's robbery spree began on June 28, 1995, when he, Plaisance and Giccione [two other individuals] decided to use Plaisance as bate to lure an unsuspecting patron of Vinnie's Sports Bar to an isolated spot to rob him. On that night, Plaisance, lured Todd Louque to a secluded area. Guccione and Desalvo attacked him. Guccione and Louque first engaged in a fist fight until Desalvo pointed a gun at Louque. Desalvo threatened to kill Louque, causing him to surrender his wallet, pager, car keys, and wrist watch. Thereafter, they fled the scene in Louque's car. Louque was taken to the hospital where he was treated for injuries and gave a statement to the police.
Two days later, on June 30, 1995, the trio struck again at a lounge on the East Bank of Jefferson Parish. Plaisance was once again used as bait to lure the victim, James Clair, out of the bar and to his car. Once Plaisance and Clair reached his car, Guccione grabbed him and forced him into the rear of the car and eventually into the trunk. Desalvo then entered the car and they drove off. During several stops, Guccione opened the trunk and kicked and beat Clair until Clair eventually lost consciousness. . . Clair later identified Desalvo in a line up as one of the perpetrators. According to Desalvo, he did not participate in the Clair robbery.
On August 11, 1995, petitioner was charged in an a five count Bill of Information in Jefferson Parish with: (1) attempted second degree murder of Todd Louque ("Louque"), (2) armed robbery of Loque, (3) attempted second degree murder of James Clair ("Clair"), (4) second degree kidnaping of Clair, and (5) armed robbery of Clair. Petitioner was ultimately found guilty of: (1) armed robbery of Louque, (2) aggravated battery of Louque — a lesser included offense of second degree murder, (3) armed robbery of Clair, (4)second degree kidnaping of Clair, and (5) aggravated battery of Clair.
Petitioner was sentenced on August 13, 1997 to concurrent sentences of eight years as to each of the aggravated battery counts and 25 years without the benefit of parole, probation or suspension of sentence as to each of the armed robbery counts and the second degree kidnaping count. The State also filed a Multiple Offender Bill charging Desalvo as a fourth felony offender. Petitioner was subsequently adjudicated as a multiple offender and sentenced to life imprisonment.
His sentence was later reduced to imprisonment for a term of forty years. See State v. Desalvo, 738 So.2d 1067 (La. 1999).
Petitioner filed his post-conviction application in the trial court on October 19, 1999 alleging that (1) he had been denied the right to trial by jury, (2) he had been tried in violation of his right to be free from double jeopardy, (3) the time limits for bringing him to court had expired prior to his trial, (4) the prosecution had failed to disclose the plea bargain of Michael Ditcharo, and (5) his attorney had been "ineffective." The trial court found petitioner's arguments to be without merit. Specifically, the court reasoned that (1) petitioner had voluntarily waived his right to a jury trial, (2) he was not exposed to double jeopardy since there were two victims and each crime charged consisted of different elements, (3) the charges against him had not prescribed by the trial date because the trial commenced within two years of the filing of the Bill of Information on August 11, 1995, (4) petitioner waived his right to challenge the disclosure of the plea agreement of Michael Ditcharo because the issue was known to him at trial and should have been raised on direct appeal, and (5) there was insufficient evidence to establish that his counsel was ineffective under Strickland v. Washington, 466 U.S. 668 (1984). Both the Louisiana Fifth Circuit Court of Appeals and Louisiana Supreme Court affirmed the rationale of the trial court on December 15, 1999 and October 6, 2000 respectively.
Petitioner filed a Petition of Issuance of a Writ of Habeas Corpus with this Court on January 17, 2001 raising the same issues presented in the state courts and arguing that there was insufficient evidence to support his conviction and insufficient evidence to support his adjudication as a multiple offender. The state responded arguing that Desalvo's petition was not timely filed or, alternatively, that his claims were without merit.
After reviewing the facts and law surrounding this case, Magistrate Judge Roby concluded that Desalvo's petition was timely filed, but should be dismissed with prejudice for the reasons set forth in the comprehensive Report and Recommendation. Plaintiff timely objected to the magistrate's report. This Court has considered Desalvo's petition under 28 U.S.C. § 2254, as a Writ of Habeas Corpus by a Person in State Custody, and has thus reviewed, de nova, the record, the applicable law, the Report and Recommendation, and plaintiffs Objections as required by 28 U.S.C. § 636 (b)(1). Furthermore, this Court concurs with the Report and Recommendation of the United States Magistrate Judge and, for the reasons explained herein and adopts it as its opinion in this matter.
Analysis
As noted above, petitioner has raised seven arguments in his federal habeas petition. The Court's analysis will address each argument in turn.
(1) Waiver of Jury Trial
Petitioner first argues that he was denied the right to a trial by jury because the trial judge did not advise him of the consequences of his waiver or assure him that he was making a knowing and intelligent waiver of that right at the commencement of the trial. As noted in the Report and Recommendation, the record reflects the following exchange prior to defendant's trial:
THE COURT: . . . All right, for the record, let's waive the jury.
MR. SLAUGHTER: That's correct.
THE COURT: If that's what you'd wish to do?
THE COURT: Your honor, the defense is ready for trial. I'm attorney Bill Slaughter. I've discussed this case repeatedly with defendant, Carlos Desalvo, and it was my advice to him, first of all, I told him he had the option of being tried by the judge or being tried by the jury. We've discussed it repeatedly. It was my suggestion and advice to him that we be tried by' the judge, but it was his final decision. And, he's told me this morning that he concurs and wishes to be tried by the judge.
THE COURT: Is this correct?
MR. DESALVO: Yes, sir.
COURT: All right. All right. We'll recess for three minutes.
Report and Recommendation, p. 10 citing St. Rec. Vol. 1 of 3, Trial Transcript, p. 25-26, 7/14/97.
It is petitioner's position that the above colloquy was insufficient to waive his right to a trial by jury because the judge did not conduct an on the record discussion relating the consequences of the waiver. However, the jurisprudence does not support petitioner's contention.
In State v. Roberts, 796 So.2d 779 (La.App. 3 Cir. 10/3/01), a defendant challenged the waiver of his right to trial by jury. In that case, the trial judge told defendant that his attorney had "indicated that he has spoken with you about this right and that you have voluntarily waived [your jury trial right] in favor of allowing the Court to try this case as the finder of fact." When questioned whether his attorney's representation was correct, defendant answered in the affirmative. On appeal, the court noted that Louisiana Code of Criminal Procedure art. 780(A)and (B) permit a defendant in a criminal trial, except in capital cases, to waive the right to a jury trial. Further, the Court explained that while the trial judge must determine if the defendant's jury trial waiver is knowing and intelligent, "that determination does not require a Boykin-like colloquy." Roberts at 788. Given the exchange between the trial judge and defendant, the Court in Roberts upheld defendant's waiver of the jury reasoning that "the trial judge specifically advised the defendant of his right to trial by jury and recorded the defendant's decision in the record."
Similarly, in State v. Abbott, 634 So.2d 911 (La.App. 4 Cir. 2/25/94), the Court affirmed the defendant's waiver of jury trial when the trial transcript indicated that the trial judge was advised by defense counsel that defendant wanted to waive the jury and addressed the defendant personally, who confirmed that he sought to waive the jury. The Court explained that:
While the Louisiana Supreme Court has rejected an absolute rule which would require the trial judge to personally inform the defendant of his right to a jury trial, the preferred method of ensuring the right is for the trial judge to advise the defendant personally on the record of his right to a jury trial and to require the defendant to waive the right personally either in writing or by oral statement in open court on the record. (internal citations omitted).
See also State v. Jones, 537 So.2d 1244 (La.App. 4th Cir. 1989) (affirming defendant's waiver of jury trial on the record when judge advised defendant of the existence of the right to trial by jury and the differences between a judge and jury trial), State v. Brooks, 814 So.2d 72 (La.App. 1 Cir. 3/28/02) (affirming defendant's waiver of jury trial when the record indicated that the trial judge informed defendant of his right to a jury trial on two different occasions and accepted his waiver of that right on the record), and State v. Muller, 351 So.2d 756 (La.App. 3rd Cir. 1989) (noting that the Louisiana Supreme Court has upheld cases in which waiver of jury trial was made by defense counsel, rather than the defendant personally, when defendant was considered to have understood his right to a jury trial and consented to the wavier of that right).
In the case at bar, defense counsel advised the court that he had repeatedly discussed the case and the option to waive the jury trial with defendant. Defense counsel also informed the Court that defendant wished to waive his right to a trial by jury. The trial judge asked defendant if he agreed with the attorney's statements and defendant noted for the record that he did. Louisiana law does not require that the trial judge personally inform the defendant of the consequences of a waiver of a jury trial. Rather, it was sufficient for the trial judge to ascertain whether defendant has been made aware of his right to a jury trial by his counsel and ascertain his waiver of that right on the record.
(2) Double Jeopardy
As noted above, petitioner was charged with (1) attempted second degree murder of Louque, (2) armed robbery of Louque, (3) attempted second degree murder of Clair, (4) second degree kidnaping of Clair, and (5) armed robbery of Clair. Petitioner was ultimately found guilty of: (1) armed robbery of Louque, (2) aggravated battery of Louque, (3) armed robbery of Clair, (4)second degree kidnaping of Clair, and (5) aggravated battery of Clair. It is petitioner's position that his right to be free from double jeopardy was violated when: (1) he was charged with attempted second degree murder and armed robbery of Louque robbery is an element of the attempted second degree murder charge and (2) he was charged with attempted second degree murder, armed robbery, and second degree kidnaping of Clair since armed robbery is an element of the other two charges.
In Blockburger v. United States, 284, U.S. 299, 304 (1932), the Supreme Court set forth the standard to be applied when determining whether an individual's right to be free from double jeopardy was infringed. Specifically, the Court noted that:
The applicable rule is that where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one is whether each provision requires proof of a fact which the other does not. . . . If each requires proof of a fact that the other does not, the Blockburger test is satisfied, notwithstanding a substantial overlap in the proof offered to establish the crimes.
Thus, "double jeopardy concerns are not raised if each crime charged requires an element of proof the other crimes charged do not."
United States v. Fisher, 106 F.3d 622, 632 (5th Cir. 1997).
In the case at bar, Judge Roby found that petitioner's double jeopardy rights were not violated as to the crimes charged with respect to Louque because the state attempted to prove that Desalvo committed attempted second degree murder by having the specific intent to kill separate and apart from the armed robbery — so that the "specific intent to kill" element of attempted second degree murder was a distinguishable element from the armed robbery charge. Further, because Desalvo was ultimately convicted of armed robbery and aggravated battery as to Louque, Judge Roby pointed out that those offenses contained elements dissimilar to one another, i.e. (1) aggravated battery requires proof of use of force or violence upon the person of another and (2) armed robbery requires that something be taken from another person.
Pursuant to La Rev. Stat. 14:30.1, second degree murder is the killing of a human when the offender has a specific intent to kill or to inflict great bodily harm or when the offender is engaged in the perpetration or attempted perpetration of . . . armed robbery. . .
As to the Clair crimes, Judge Roby concluded that Desalvo's double jeopardy rights had not been infringed because: (1) the specific intent element of attempted second degree murder and the requirement that something be taken from the person of another to prove armed robbery were distinct elements from one another, (2) second degree kidnaping did not require that an armed robbery occur, and (3) the state proved that the battery and kidnaping continued after the robbery.
Petitioner has not raised any new arguments in his objections to the magistrate's Report and Recommendation and the Court concurs with the magistrates findings. As to the Louque charges of attempted second degree murder and armed robbery, there was no violation of Desalvo's protection from double jeopardy. As the Louisiana court explained in State v. Banks, 496 So.2d 1099 (La.App. 4th Cir. 1986):
The fact that the defendant was convicted of attempted second degree murder, which requires a showing of specific intent to kill, leaves no doubt that he was convicted under subsection (1) of R.S. 14:30.1.
[T]he evidence required to support a conviction of attempted second degree murder under subsection (1) of R.S. 14:30.1 did not include proof of armed robbery. Likewise, the conviction of armed robbery did not require proof of an intent to kill. Because each crime requires proof of an additional fact which the other does not, [the defendant's] conviction on both counts does not violate the ban against double jeopardy.
Because each charge requires distinct elements of proof, this Court concludes that the Blockburger test is satisfied and there was no error in charging Desalvo with attempted second degree murder and armed robbery.
As to the Clair crimes, the Court similarly finds that the Blockburger standard has been met because each crime charged contains an element of proof distinguishable from the others. For example, (1) only the charge for attempted second degree murder required proof of a specific intent to kill, (2) proof of second degree kidnaping required, among other elements, some proof of seizing, carrying, enticing, persuading, imprisoning or forcibly secreting any person from one place to another — an element not needed to establish either of the other charges, and (3) the armed robbery charge required that something be taken from the person of another — an element not needed to establish either of the other charges.
(3) Speedy Trial
Defendant contends that his right to a fair trial was violated when he was taken to trial more than two years after July 1, 1995 — the date he was arrested in connection with the present charges. Petitioner's argument is without merit.
Louisiana Code of Criminal Procedure art. 578 provides that no trial shall be commended in a non-capital felony offense after two years from the date of the institution of the prosecution. Under Louisiana law, a prosecution is "instituted" when the grand jury indictment is returned or the Bill of Information is filed. See State v. Gladden, 260 La. 735 (La. 1972) and State v. Watts, 738 So.2d 628 (La App. 5th Cir. 5/19/99).
In the case at bar, the Bill of Information against petitioner was filed on August 11, 1995. Therefore, institution of his trial on July 14, 1997 was within the two year period allowed under Louisiana law.
(4) Ditcharo's Plea Agreement
Petitioner contends that at trial, the prosecution failed to disclose the plea agreement with a state witness, Michael Ditcharo, made in exchange for Ditcharo's trial testimony against petitioner. In petitioner's 1999 Post-Conviction Application, the trial court rejected the same argument reasoning that it had been waived when petitioner did not raise it on direct appeal.
Before this Court petitioner argues that: (1) the fact that he did not challenge the admissibility of Ditcharo's plea agreement on direct appeal was the result of his "ineffective assistance of counsel" and (2) pursuant to La C. Crim. P. Art. 930.4(F) the trial court was required to order Desalvo to explain why he had not challenged the admissibility of Ditcharo's plea agreement on direct appeal before dismissing petitioner's argument and, if it determined Desalvo's failure was excusable, it would have been required to consider the merits of petitioner's claim. Thus, Desalvo contends that had the trial court complied with the dictates of Art. 930.4(F), he would have been able to articulate to the judge that he had not raised this argument on direct appeal because of his attorney's ineffective representation.
Art. 930.4 states, in pertinent part, (A) Unless required in the interest of justice, any claim for relief which was fully litigated in an appeal from the proceedings leading to the judgment of conviction and sentence shall not be considered. (B) If the application alleges a claim of which the petitioner had knowledge and inexcusably failed to raise in the proceedings leading to conviction, the court may deny relief. (F) If the court considers dismissing an application for failure of the petitioner to raise the claim in the proceedings leading to the conviction, failure to urge the claim on appeal, or failure to include the claim in a prior application, the court shall order the petitioner to state reasons for his failure. IF THE COURT FINDS THAT THE FAILURE WAS EXCUSABLE. IT SHALL CONSIDER THE MERITS OF THE CLAIM. (emphasis added).
In the Report and Recommendation, Judge Roby notes that "[g]enerally, a federal court will not review a question of federal law decided by a state court if the decision of that state court rests on a state law ground that is both independent of the merits of the federal claim and adequate to support that judgment." Citing, inter alia, Coleman v. Thompson, 501 U.S. 722 (1991). Further, "this type of procedural default will bar federal court review of a claim raised in a habeas petition when the last state court to render judgment is independent of federal law and rests on a state procedural bar." Citing Ylst v. Nunnmaker, 501 U.S. 797 (1991).
In the case at bar, the Report concluded that the last reasoned state court opinion barred review of the claim based on Desalvo's procedural default as provided under La. Code Crim. P. Art. 930.4. Because that article acted as an independent and adequate state ground to preclude a claim, Judge Roby found that Desalvo was barred from federal habeas review of the state court's judgment. However, the Report conceded that petitioner could be excepted from this procedural bar with proof of (1) cause for his default and (2) prejudice resulting therefrom or (3) by demonstrating that this Court's failure to review the claims would result in a "fundamental miscarriage of justice."
As noted in the Report, to establish "cause" for his procedural default Desalvo must establish that there was some "objective factor external to the defense that impeded his attorney from including this claim on appeal in compliance with the state procedural rule. Further, "the mere fact that counsel failed to recognize the factual or legal basis for a claim or failed to raise the claim despite recognizing it, does not constitute cause for procedural default." Applying those standards, the Report and Recommendation concluded that petitioner failed to establish "cause" and therefore did not confront the issue of whether petitioner suffered any prejudice as a result of the procedural default.
Murray v. Carrier, 477 U.S. 478, 488 (1986).
Report and Recommendation, p. 21 citing Murray, at 486.
The Report also concluded that petitioner did not establish that this Court's refusal to entertain his claim would result in a "fundamental miscarriage of justice" because there had been no "colorable showing of factual innocence" through new or existing evidence sufficient to create reasonable doubt as to petitioner's guilt or innocence.
Through his objection, petitioner's again argues that: (1) the state procedural bar prohibiting this Court from hearing his claim should not operate when the state has "failed to comply with its own Codal Provisions" and (2) La. C. Crim. P. Art. 930.4(F) required the trial court to order petitioner to state the reasons for his failure to raise this argument on direct appeal.
While this Court does not disagree with the magistrate's reasoning, it denies the petitioner's claim on a different basis. The Court's consideration of petitioner's argument is two-fold. First, the Court notes that the prosecution is required to disclose any "material evidence" affecting the credibility of a witness. Giglio v. United States, 405 U.S. 150 (1972). Evidence is "material" if there is a "reasonable probability that, had the evidence been disclosed to the defense, the result at trial would have been different. United States v. Bagley, 473 U.S. 667 (1985). Further, the potential of the undisclosed evidence should be weighed in light of the whole record. United States v. Agurs, 427 U.S. 97 (1976).
Under the standard announced in Giglio, courts have held that the state is required to disclose the existence of a plea agreement between the State and one of its witnesses. As was explicitly noted in Brown v. Wainwright, 785 F.2d 1457 (11th Cir. 1986), "[t]he government has a duty to disclose evidence of any understanding or agreement as to prosecution of a key government witness In Burkhalter v. State, 493 S.W.2d 214 (Tex. Crim App.), the court similarly held that the prosecution's non-disclosure of an immunity agreement with the witness's attorney violated the defendant's due process rights. And, in Beintema v. Everett, 2001 WL 639512 (D. Wyo. 2001), the court explained:
The Court notes that petitioner's contention that he was not made aware of Ditcharo's plea agreement appears disingenuous when juxtaposed with the arguments put forth in his complaint regarding his attorney's "ineffective assistance of counsel" for failure to cross examine Ditcharo on the details of the plea agreement.
Citing Haber v. Wainwright, 756 F.2d 1520 (11th Cir. 1985); Williams v. Brown, 609 F.2d 216 (5th Cir. 1980) and U.S. v. Tashman, 478 F.2d 129 (5th Cir. 1973).
This is the explicit lesson set forth in Giglio v. Unites States and Naupe v. Illinois. Where a prosecution depends almost entirely on the testimony of one witness, without whom there would be no indictment or evidence to carry the case to the jury, the reliability and credibility of that witness is an important issue and may well be determinative of guilt or innocence of the defendant. Evidence of any understanding or agreement as to a future prosecution would be relevant to the credibility of that witness and the jury is entitled to know of it. (internal citations omitted).
Despite the inconsistencies in petitioner's arguments, the court assumes that the State did not make Desalvo aware of its agreement with Ditcharo. However, this Court finds that petitioner has failed to prove how that evidence was "material" to his defense. In light of the whole record, even had petitioner known of the plea agreement, this Court can not conclude that the result at trial would have been different as petitioner incriminated himself in the Louque crimes during his testimony. Thus, Ditcharo's testimony was not the only evidence used to establish petitioner's guilt. Further, the record indicates that Ditcharo testified during trial that he had been charged with and pleaded guilty to possession of stolen property in connection with this case. Therefore, the judge was not led to believe that Ditcharo was an individual of impeccable character that should be believed in lieu of petitioner.
Second, in accordance with La. C. Crim. P. Art. 930.4(F), the trial court should have required petitioner to explain why he did not raise his complaint regarding Ditcharo's plea agreement on direct appeal before dismissing his post-conviction application. Had the trial judge complied with that article, petitioner would have argued that his trial counsel was ineffective and should be considered excusable neglect. However, this Court concludes that the trial court's failure to follow the directives of Art. 930.4(F) was harmless error — as petitioner could not have established that his counsel was ineffective. As was thoroughly discussed in the magistrate's report, Desalvo's attorney did not render ineffective assistance of counsel when it failed to question Ditcharo as to his plea agreement because: (1) the trial judge was fully aware of the plea agreement and this was a judge trial, (2) Ditcharo testified that he was charged with an pleaded guilty to possession of stolen property, (3) Desalvo gave incriminating statements after his arrest which implicated him in the Louque crimes so Ditcharo's testimony was not entirely fatal to his defense, and (4) on habeas review scrutiny of counsel's performance must be highly deferential and the court should presume that strategic or tactical decisions made after an adequate investigation are objectively reasonable. For these reasons, the trial court's failure to comply with La C. Crim. P. Art. 930.4(F) was harmless error.
Petitioner argued counsel's failure to question Ditcharo was deficient and prejudicial because had "the jury known a deal had been made and had counsel been able to impeach his credibility, there is a reasonable probability that a different result would have occurred. However, petitioner's argument is unpersuasive as this was not a jury case.
(5) ineffective Assistance of Counsel
As noted in the magistrate's Report, petitioner contends that his counsel was ineffective for several reasons including his: (1) failure to request a continuance when the prosecutor amended the Bill of Information, (2) failure to file a Motion to Quash the Bill of Information on the basis that there the State lacked probable cause to charge him, (3) failure to file a Motion to Quash because he was not charged or arraigned on his involvement in the Clair crime until after the two year trial limitation had expired, (4) failure to cross-examine Michael Ditcharo concerning the agreement, (5) failure to move to sever the Louque case from the Clair case and (6) failure to file a Motion to Quash since the charges amounted to double jeopardy.
Judge Roby noted that petitioner had raised, and lost, the same arguments in his Post Conviction Application through the state courts because was unable to satisfy the test set forth in Strickland v. Washington, 466 U.S. 668 (1984) to determine whether a litigant has had "ineffective assistance of counsel" — which requires proof of (1) deficient conduct by defendant's counsel and (2) prejudice to the defendant. After reviewing each of petitioner's arguments in light of Strickland, Judge Roby similarly concluded that petitioner had not proved that (1) his attorney was deficient in any manner or that (2) his defense had been prejudiced as a result of his attorney's representation.
In his objections to the Report and Recommendation, petitioner does not provide any new evidence or arguments in support of his position. The Court is not required to conduct a de novo review of the entire record when a petitioner provides only a conclusory objection to the magistrate's findings. Therefore, petitioner's objections as to his ineffective assistance of counsel argument must be dismissed. Battle v. United States Parole Comm'n, 834 F.2d 419, 421 (5th Cir. 1987) (holding in part that a Court need not conduct a de novo review when objections are frivolous, conclusive, or general in nature).
(6) Insufficient Evidence to Support the Convictions
In this claim, petitioner contends that there was insufficient evidence to convict him of armed robbery of Louque because there was no credible evidence that a gun was used in that crime. Further, petitioner contends that there was insufficient evidence to prove his presence during the Clair robbery and kidnaping because he had presented the Court with an alibi as to his whereabouts during that crime.
In the Report and Recommendation, Judge Roby applied the standard set forth in Jackson v. Virginia, 443 U.S. 307 (1979) and determined that when "viewing the entire 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 had been proven beyond a reasonable doubt." Specifically, the Report notes that upon direct appeal, the Louisiana Fifth Circuit concluded that:
When viewed in the light most favorable to the prosecution . . . the evidence as sufficient for the trial judge to conclude that Desalvo held a pistol on Louque and the he (Desalvo) was with Guccione and not at his sister's residence when Clair was attacked. From the trial judge's viewpoint, Louque and Clair were more reliable witnesses than Desalvo, who has an extensive record of felony arrests and convictions, and his alibi witnesses, one of whom was a drug addict according to Desalvo.
For those reasons, Judge Roby concluded that the requirements of Jackson had been satisfied because a rational trier of fact could have concluded that petitioner had a gun during the Louque robbery and was present during the Clair crimes.
In his objections to the Report and Recommendation, petitioner does not provide any new evidence or arguments in support of his position. The Court is not required to conduct a de novo review of the entire record when a petitioner provides only a conclusory objection to the magistrate's findings. Therefore, petitioner's objections as to the sufficiency of the evidence used to convict him at trial must be dismissed. Battle v. United States Parole Comm'n, 834 F.2d 419, 421 (5th Cir. 1987) (holding in part that a Court need not conduct a de novo review when objections are frivolous, conclusive, or general in nature).
(7) Insufficient Evidence to Prove Desalvo a Multiple Offender
Finally, petitioner contends that the State failed to establish a basis for its multiple offender adjudication since it failed to present identification evidence and failed to prove the constitutionality of the prior convictions. As noted in the Report and Recommendation, the Louisiana Fifth Circuit determined that there was sufficient evidence to try petitioner as a multiple offender based on the testimony, photographs, and documents maintained by the parole officer who supervised Desalvo after his prior incarcerations. Thus, Judge Roby concluded that a reasonable fact finder could have concluded that Desalvo was the same person who had been convicted on three prior occasions.
In his objections to the Report and Recommendation, petitioner does not provide any new evidence or arguments in support of his contention that he was improperly tried as a multiple offender. The Court is not required to conduct a de novo review of the entire record when a petitioner provides only a conclusory objection to the magistrate's findings. Therefore, petitioner's objections as to his status as a multiple offender must be dismissed. Battle v. United States Parole Comm'n, 834 F.2d 419, 421 (5th Cir. 1987) (holding in part that a Court need not conduct a de novo review when objections are frivolous, conclusive, or general in nature).
Accordingly,
IT IS ORDERED that the Report and Recommendation of the United States Magistrate Judge is APPROVED and ADOPTED as the opinion of the Court for the reasons stated herein and petitioner's application for writ of habeas corpus shall be DISMISSED with prejudice.