Opinion
civil Action No: 01-0626 Section "r"(6)
August 16, 2001
ORDER AND REASONS
This matter was referred to the United States Magistrate Judge for the purpose of conducting a hearing, if necessary, and submission of proposed findings of fact and recommendations pursuant to 28 U.S.C. § 636 (b)(1)(B) and, as applicable, Rule 8(b) of the Rules Governing Section 2254 Cases. Before the Court is petitioner's objection to the Magistrate's Report and Recommendation. Having reviewed de novo the complaint, the record, the applicable law, the Report and Recommendation of the United States Magistrate Judge, and petitioner's objection thereto, the Court agrees that petitioner's complaint should be dismissed with prejudice.
I. BACKGROUND
Petitioner, Harrell Henderson, is a state prisoner currently incarcerated at the Louisiana State Police Barracks in Baton Rouge. A state jury convicted him of simple burglary of an inhabited dwelling on November 9, 1993. The state trial court sentenced Henderson to ten years at hard labor with credit for time served. The State then filed a Multiple Bill of Information in January 1994 charging Henderson as a habitual offender under Louisiana's habitual offender statute, based on a burglary conviction in 1992. Following a hearing on the multiple bill, Henderson was sentenced to eighteen years at hard labor without benefit of parole, probation, or suspension of sentence after the first year.
On January 18, 1994, petitioner appealed to the Louisiana Fifth Circuit Court of Appeal claiming that his sentence was excessive. The Court of Appeal affirmed the defendant's conviction as a habitual offender, but remanded the case for resentencing.
The Court of Appeal remanded for re-sentencing because the trial court failed to vacate the original sentence before imposing the sentence under the habitual offender statute, failed to give credit for time served, and failed to properly advise Henderson of the prescriptive period for filing for post-conviction relief.
The trial court resentenced petitioner on July 26, 1995. At that hearing, the trial court vacated the original sentence, imposed the sentence of eighteen years under the habitual offender statute, and advised Henderson of the prescriptive period for filing an application for post-conviction relief. Petitioner then filed a motion to correct an illegal sentence with the trial court, which was denied on May 5, 1997. Petitioner then sought relief from the Louisiana Fifth Circuit Court of Appeal, which denied his writ on July 8, 1997. The Louisiana Supreme Court also denied petitioner's writ on March 20, 1998.
Henderson filed his first application for federal post-conviction relief with this Court on June 11, 1998. In that application, he asserted that the trial court erred when it (1) sentenced him without counsel and (2) imposed a harsher sentence. This Court granted petitioner relief so that he could be resentenced with the assistance of counsel within thirty days.
In accordance with this Court's Order, the state court held a hearing at which petitioner pled not guilty to the multiple bill of information on January 6, 1999. At the hearing, petitioner appeared with counsel and requested time to file a memorandum objecting to the multiple bill and time to engage in discovery. The court vacated petitioner's prior sentence and reinstated the original ten year sentence for the underlying charge of simple burglary. The State then asked the court to reconsider the original multiple bill filed in January 1994 and the court granted a hearing on the multiple bill of information.
At that hearing, the State offered the testimony of Captain Merril Boling, a fingerprint expert from the Jefferson Parish Sheriff's Office, to establish that petitioner was the same person convicted of simple burglary in 1992. The trial judge refused to sentence petitioner under the multiple bill because the fingerprint expert could not identify numbers on the arrest register and thereby implicate petitioner in the earlier offense. The prosecutor requested a rehearing on the multiple bill. At this point, it was brought to the court's attention that petitioner had finished serving the sentence for the 1993 simple burglary conviction and was set to be released if the multiple offender enhancement was not added to his sentence. The court gave the State twenty-four hours to remedy the deficiencies in the multiple bill. Petitioner objected to being held over for the multiple bill, arguing that giving the State a second opportunity to multiple bill him violated double jeopardy principles. His objection was overruled.
On February 4, 1999, the State recalled Captain Boling, who testified that the fingerprint cards from the 1993 and 1992 offenses were from the same individual and successfully matched the item number on the 1993 arrest record to the item number on the bill of information for the 1992 conviction. Defense counsel once again objected to the multiple bill, arguing that a sentence enhancement could not be added to an underlying sentence that had been completely served. The court found that the multiple bill was timely because it was initially filed prior to petitioner's completion of his sentence and overruled defense counsel's objection. The court then vacated petitioner's ten-year sentence and sentenced him as a habitual offender to a term of twelve years at hard labor with credit for time served. This twelve-year sentence was six years less than petitioner's previous habitual offender sentence of eighteen years.
Petitioner sought relief from the state appellate court and the state supreme court, both of which denied relief without giving reasons. See State v. Henderson, 759 So.2d 353 (La.App. 5 Cir. 1999); State v. Henderson, 783 So.2d 379 (La. 2001)
Petitioner filed this application for federal relief on March 5, 2001. Petitioner asserted the following grounds for habeas corpus relief: (1) the trial court violated double jeopardy principles when it allowed a rehearing on the sufficiency of the State's multiple offender evidence; (2) the trial court erred in finding that the multiple bill was timely; (3) the trial court erred in accepting evidence without a proper foundation; (4) the trial court erred by increasing petitioner's sentence from the sentence originally imposed; and (5) petitioner's counsel was ineffective during the appellate process. The Magistrate Judge recommended that relief be denied on all of the claims asserted. Petitioner'S only objection to the Magistrate Judge's recommendation challenged his determination that petitioner's sentencing did not violate double jeopardy principles.
II. DISCUSSION
A. Timeliness
Under the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), a petitioner is required to bring his habeas corpus claims pursuant to 28 U.S.C. § 2254 within one year of the date his conviction becomes final. 28 U.S.C. § 2244 (d)(1)(A). Henderson's conviction became final ninety days after February 2, 2001, when the time for filing a writ of certiorari with the U.S. Supreme Court expired. See Sup. CT. R. 13(1); Ott v. Johnson, 192 F.3d 510, 513 (5th Cir. 1999). Thus, petitioner's federal application for habeas relief, filed March 5, 2001, is timely.
B. Standard of Review
The AEDPA, effective April 24, 1996, comprehensively revised federal habeas corpus legislation and instituted revised standards of review for federal habeas corpus claims adjudicated on the merits in state court. Under the AEDPA, a federal habeas court may not grant a state prisoner's application for a writ of habeas corpus with respect to claims adjudicated on the merits in state court unless the state-court adjudication resulted in a decision that (1) was contrary to, or involved an unreasonable application of, clearly established federal law as determined by the Supreme Court; or (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding. See 28 U.S.C. § 2254(d). The Supreme Court recently held that a decision is contrary to clearly established federal law if the state court arrives at a conclusion opposite to that reached by the Supreme Court on a question of law, or if the state court decides a case differently than the Supreme Court on a set of materially indistinguishable facts. See Williams v. Taylor, 529 U.S. 362, 412-413, 120 S.Ct. 1495, 1523 (2000); accord Hill v. Johnson, 210 F.3d 481 (5th Cir. 2000). With regard to the "unreasonable application" clause, the Court rejected the Fourth Circuit's "all reasonable jurists" standard, noting that the application of such a standard by federal habeas courts has focused erroneously on a subjective rather than objective inquiry. See Williams, 529 U.S. at 410, 120 S. Ct. at 1522 ( citing Drinkard v. Johnson, 97 F.3d 751, 769 (5th Cir. 1999)). The Court instead held that a federal court may grant a writ of habeas corpus only if the state court unreasonably applies the correct legal principle to the facts of the petitioner's case. See id. The state court's findings of fact are entitled to a presumption of correctness, rebuttable only by clear and convincing evidence. See 28 U.S.C. § 2254 (e)(1).
C. Re-sentencing on the Multiple Bill and Double Jeopardy
Petitioner asserts that his constitutional rights to due process and to be protected against double jeopardy were violated when the trial court allowed the State a second opportunity to demonstrate that he was a multiple offender. The Court finds that petitioner's claim is barred by the Supreme Court's decision in Monge v. California, 524 U.S. 721, 118 S. Ct. 2246 (1998)
The Double Jeopardy Clause of the Fifth Amendment, applicable to the states through the Fourteenth Amendment, provides: "Nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb." The Supreme Court has held that the Clause protects against successive prosecutions for the same offense after acquittal or conviction and against multiple criminal punishments for the same offense. See North Carolina v. Pearce, 395 U.S. 711, 717, 89 S. Ct. 2072, 2076-77 (1969)
In Monge, the United States Supreme Court held that double jeopardy principles do not apply to sentencing proceedings. See Monge, 524 U.S. at 724, 118 S. Ct. at 2248. In Monge, the defendant received a sentence enhancement based upon a trial court's finding that he had employed a dangerous or deadly weapon when he committed the predicate crime, using a minor to sell marijuana. See id. The state appeals court ruled that the evidence was insufficient to trigger the sentence enhancement and that a remand for retrial on the habitual offender allegation would violate double jeopardy principles. See id. at 726, 118 S. Ct. at 2249.
The California Supreme Court reversed the appellate court's ruling that the Double Jeopardy Clause bars retrial of sentencing enhancements. The United States Supreme Court affirmed. Writing for the court, Justice O'Connor relied on the fact that historically the Court has refused to apply double jeopardy principles to sentencing proceedings because the determinations at issue do not place a defendant in jeopardy for "an offense." See id. at 728, 118 S. Ct. at 2250 ( citing Nichols v. United States, 511 U.S. 738, 747, 114 S. Ct. 1921, 1927 (1994)). The Court has held that when an appeals court overturns a conviction on the ground that the prosecution proffered insufficient evidence of guilt, that holding is comparable to an acquittal, and the Double Jeopardy Clause precludes a second trial. See id. at 729, 118 S. Ct. at 2251 ( citing Burks v. United States, 437 U.S. 1, 16, 98 S. Ct. 426, 431 (1978)). However, the Court noted that double jeopardy principles do not apply when a similar failure of proof occurs in a sentencing proceeding. See id. at 729, 118 S. Ct. at 2251. The Court found that the pronouncement of a sentence simply does not have the qualities of constitutional finality that attend an acquittal. See id. ( citing United States v. DiFrancesco, 449 U.S. 117, 134, 101 S. Ct. 426, 436 (1980)).
The Court further explained that sentence enhancements have never been construed as additional punishment for a previous offense. "An enhanced sentence imposed on a persistent offender `is not to be viewed as either a new jeopardy or additional penalty for the earlier crimes' but as a `stiffened penalty for the latest crime, which is considered to be an aggravated offense because a repetitive one.'" See id. at 728, 118 S. Ct. at 2249 ( quoting Gryger v. Burke, 334 U.S. 728, 732, 68 S. Ct. 1256, 1258 (1948))
The Court acknowledged that there is a narrow exception to the general rule that double jeopardy principles do not apply to sentencing proceedings. See Bullington v. Missouri, 451 U.S. 430, 101 S. Ct. 1852 (1981). The Court confined this exception to the unique circumstances of a capital sentencing proceeding, because such a proceeding is in many respects a continuation of the trial on guilt or innocence of capital murder. The Court explained that because "the death penalty is unique in both severity and finality, we have recognized an acute need for reliability in capital sentencing proceedings." Monge, 524 U.S. at 731, 118 S. Ct. at 2251 ( citing Lockett v. Ohio, 438 U.S. 586, 604, 98 S. Ct. 2954, 2964 (1978)).
Borrowing from Justice Scalia's dissent in Monge, petitioner argues that the habitual offender enhancement constitutes an element of petitioner's offense. This argument, however, was foreclosed by the Supreme Court's decision in Almendarez-Torres v. United States. Id. at 728, 118 S. Ct. at 2250 ( citing Almendarez-Torres v. United States, 523 U.S. 224, 247, 118 S. Ct. 1219, 1233 (1998) (holding that "recidivism findings" do not have to be treated as elements of the offense, even if they increase the maximum punishment to which the defendant is exposed)).
Petitioner argues that the factual differences between the his case and Monge warrant a departure from the general rule that double jeopardy protections are not applicable to non-capital sentencing proceedings. Although the facts involved in these cases are not identical, the Court finds the logic of Monge applicable here. That the rehearing on the sentencing enhancement in this case came after the trial court initially found the evidence supporting the sentence enhancement insufficient, rather than after a similar finding by an appellate court, is not sufficient to warrant a departure from Monge. Accordingly, petitioner fails to establish that the state court's determination was contrary to, or involved an unreasonable application of clearly established federal law, as determined by the Supreme Court. See Hill, 210 F.3d at 485. Accordingly, the Court finds that petitioner's objection lacks merit and that this claim must be dismissed.
Petitioner does not challenge the Magistrate Judge's recommendation that his other habeas claims be dismissed. Therefore, the Court having considered the petition, the record, applicable law, the Report and Recommendation by the Magistrate Judge, and the failure of any party to file any other objection to the Magistrate Judge's Report and Recommendation, hereby approves the Report and Recommendation and adopts it as its opinion.
III. CONCLUSION
For the foregoing reasons, Henderson's petition for habeas corpus is dismissed with prejudice.