Opinion
Criminal Action No. 04-2126 Section "K" (5).
June 2, 2005
ORDER AND REASONS
Before this Court comes Petitioner Wilbert Meredith (hereinafter "Petitioner") objecting to the Report and Recommendation of Magistrate Judge Shushan. The Magistrate recommends that Petitioner's section 2254 habeas corpus petition be dismissed with prejudice finding no necessity for a § 636(b)(1)(B) evidentiary hearing because the petitioner failed to show that the claim meets the requirements of 28 U.S.C. § 2254(e)(2).
28 U.S.C. § 2254 (e)(2): If the applicant has failed to develop the factual basis of a claim in State court proceedings, the court shall not hold an evidentiary hearing on the claim unless the applicant shows that — (A) the claim relies on — (i) a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable; or (ii) a factual predicate that could not have been previously discovered through the exercise of due diligence; and (B) the facts underlying the claim would be sufficient to establish by clear and convincing evidence that but for constitutional error, no reasonable fact-finder would have found the applicant guilty of the underlying offense.
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 received on March 17, 2005, and having conducted a de novo review of those portions of the Report and Recommendations to which objections are made as required by 28 U.S.C. § 636(b)(1), the Court hereby APPROVES the Report and Recommendation of the United States Magistrate Judge and ADOPTS it as its opinion in this matter.
STANDARD OF REVIEW
Magistrate judges are empowered by statute to preside over certain pretrial matters upon appointment by a district judge. 28 U.S.C. § 636(b)(1)(A); see also Rules Governing § 2254 Cases, Rule 10. A district court evaluating a magistrate judge's recommendation may adopt those portions of the recommendation to which no specific objection is made, as long as those sections are not clearly erroneous. See id.; Fed.R.Civ.P. 72(b). However, where a party makes "specific, written objections" within 10 days after being served with a copy of the magistrate's recommendations, the district court must undertake de novo review of those contested aspects of the report. 28 U.S.C. § 636(b)(1)(c); see also Fed.R.Civ.P. 72(b). The district judge may then "accept, reject, or modify the recommended decision, receive further evidence, or recommit the matter to the magistrate judge with instructions." Fed.R.Civ.P. 72(b).
PROCEDURAL HISTORY
Petitioner is incarcerated at the Louisiana State Penitentiary, Angola, Louisiana. On March 25, 1999, he was convicted of armed robbery in violation of La.Rev.Stat.Ann. § 14:64. On April 8, 1999, he was found to be a third offender. On October 28, 1999, he was sentenced as a third offender to a term of life imprisonment without benefit of parole, probation, or suspension. Petitioner's conviction and sentence were affirmed by the Louisiana Fourth Circuit Court of Appeal on July 11, 2001. He then filed with the Louisiana Supreme Court an application for remedial and supervisory writs which was denied on September 13, 2002.
Supplemental State Rec., Vol. I of I, transcript of March 25, 1999, pp. 39-40; State Rec., Vol. I of II, minute entry dated March 25, 1999; State Rec., Vol I of II, jury verdict form.
Supplemental State Rec., Vol. I of I, transcript of April 8, 1999, p. 10; State Rec., Vol. I of II, minute entry dated April 8, 1999.
Supplemental State Rec., Vol. I of I, transcript of October 28, 1999, p. 2; State Rec., Vol. I of II, minute entry dated October 28, 1999.
State v. Meredith, No. 2000-KA-0128 (La.App. 4th Cir. July 11, 2001) (unpublished); Supplemental State Rec., Vol I of I.
State Rec., Vol II of II.
State v. Meredith, 824 So.2d 1189 (La. 2002) (No. 2001-KO-2411); State Rec., Vol. II of II.
On or about October 14, 2001, petitioner filed with the state district court an application for post-conviction relief. The application was denied on March 18, 2003. Petitioner then filed with the Louisiana Fourth Circuit of Court of Appeal an application for a supervisory writ which was denied on June 9, 2003. Petitioner next filed with the Louisiana Supreme Court an application for writs of certiorari and review which was denied on June 18, 2004.
State Rec., Vol I of II.
State Rec., Vol I of II, Judgment dated March 18, 2003.
State v. Meredith, No. 2003-K-0644 (La.App. 4th Cir. June 9, 2003) (unpublished); State Rec., Vol. II of II.
State Rec., Vol II of II.
State ex rel. Meredith v. State, 876 So.2d 798 (La. 2004) (No. 2003-KH-1949); State Rec., Vol. II of II.
On July 26, 2004, petitioner filed an application for federal habeas corpus relief, which the magistrate judge found to be timely and that petitioner exhausted state remedies under 28 U.S.C. § 2254(d)(1), as amended by the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), Pub.L. No. 104-132, 110 Stat. 1214 (1996 (effective April 24, 1996). ( See Rec.Doc. No. 6).
In his application, petitioner claims:
1. his sentence is excessive;
2. he received ineffective counsel;
3. There was insufficient evidence to support his conviction;
4. The trial court erred in allowing him to proceed to trial without a determination of his competency; and
5. Petitioner's habitual offender adjudication violated the Ex Post Facto Clause.ANALYSIS
Petitioner contends that the magistrate judge erred with respect to all claims except the fifth. In reviewing petitioner's objections, the Court will address the complaints in the order listed above.
A. Unconstitutionally Excessive Sentence
The first issue is whether Meredith's sentence is unconstitutionally excessive. The Court does not consider the extent to which the sentence may be excessive under state law because federal habeas relief is available only for violations of federal constitutional law. Narvais v. Johnson, 134 F.3d 688, 695 (5th Cir. 1998).
Generally, the Eighth Amendment protects against not only barbaric punishments, but also those that are disproportionate to the crime committed. Solem v. Helm, 463 U.S. 277 (1983). However, "[for] crimes concededly classified and classifiable as felonies, that is, as punishable by significant terms of imprisonment in a state penitentiary, the length of the sentence actually imposed is purely a matter of legislative prerogative." Harmelin v. Michigan, 501 U.S. 957, 962 (1991) ( quoting Rummel v. Estelle, 445 U.S. 263, 274 (1980). A federal habeas court will not upset a state sentence within statutory limits unless it is so disproportionate to the offense as to be completely arbitrary and shocking. Bonner v. Henderson, 517 F.2d 135, 136 (5th Cir. 1975); see also Smallwood v. Johnson, 73 F.3d 1343, 1347 (5th Cir. 1996), cert. denied, 519 U.S. 883 (1996). In this way, a "[court] must grant substantial deference to the broad authority that legislatures necessarily possess in determining the types and limits of punishments for crimes." United States v. Gonzales, 121 F.3d 928, 942 (5th Cir. 1997).
In light of Solem's general constitutional principle and other relevant jurisprudence, the Fifth Circuit set forth its methodology for analyzing excessive sentences claims:
"We will initially make a threshold comparison of the gravity of [petitioner's] offenses against the severity of his sentence. Only if we infer that the sentence is grossly disproportionate to the offense we will then . . . compare the sentence received to (1) sentences for similar crimes in the same jurisdiction and (2) sentences for the same crime in other jurisdictions."McGruder v. Pucket, 954 F.2d 313, 315 (5th Cir. 1992).
Here, the issue of whether the sentence is unconstitutionally excessive turns on whether petitioner's punishment arrives at this threshold level of gross disproportionality. The U.S. Supreme Court noted the inherent subjectivity in making this threshold determination in Rummel, 445 U.S. at 304. In Rummel, the Supreme Court upheld a life sentence under a recidivist statute for a petitioner who had fraudulently used a credit card, passed a forged check, and finally, obtained $120.75 under false pretenses. Subsequent jurisprudence in this circuit has used Rummel as a litmus test for distinguishing constitutional sentences and grossly disproportionate punishments. Gonzales, 121 F.3d at 943.
In determining whether a sentence is grossly disproportionate to the underlying offense in recidivist cases, a court must consider that "the sentence is [being] imposed to reflect the seriousness of [petitioner's] most recent offense, not as it stands alone, but in the light of his prior offenses." McGruder, 954 F.2d at 316. In the instant matter, petitioner was subject to a life sentence under LSA-R.S. 15:529.1(A)(1)(b)(ii) because armed robbery is a crime of violence, as defined by La.R.S. 14:2(13).
When enhancing a defendant's sentence, a court must use the enhancement statute in effect at the time of commission of the offense for which the sentence is being enhanced. Serio v. Stalder, 2003 WL 2238431, (E.D.La. 2003) ( citing State v. Everett, 816 So.2d 1272 (La. 2002). Prior to 2001, La R.S. 15:529.1(A)(1)(b)(ii) read: "If the third felony or either of the two prior felonies is a felony defined as a crime of violence under R.S. 14:2(13) or as a violation of the Uniform Controlled Dangerous Substances Law punishable by imprisonment for more than five years or any other crime punishable by imprisonment for more than twelve years, the person shall be imprisoned for the remainder of his natural life, without benefit of parole, probation, or suspension of sentence." (emphasis added). Applying this version of the habitual offender statute, only one of the three offenses need be a violent crime.
Here, petitioner's criminal record includes convictions for possession of a stolen automobile, purse snatching, and armed robbery. These crimes clearly are more severe than those in Rummel. Indeed, the Supreme Court has observed that "[a]s the criminal laws make clear, non-violent crimes are less serious than crimes marked by violence or the threat of violence. Solem, 463 U.S. at 292-293; see also Terrebonne v. Butler, 848 F.2d 500, 503 (1988). In this way, applying the litmus test set forth in Rummel, the Court finds that the facts of this case do not meet threshold level of gross disproportionality; therefore, the sentence is consistent with the constitutional requirements of the Eighth Amendment.
Petitioner objects to the magistrate's finding that the sentence is constitutional. He argues that imposing a life sentence for a third felony conviction is not consistent with the "evolving standards of decency that mark the progress of a maturing society." Trop v. Dulles, 356 U.S. 86, 101 (1958). However, it is clear that the constitutionality of habitual offender statutes is no longer up to serious challenge. Ewing v. California, 538 U.S. 11, 25 (2003), Parke v. Raley, 506 U.S. 20, 27 (1992). Indeed, states have a "valid interest in deterring and segregating habitual criminals" Id. Thus, the prevailing jurisprudence on the constitutionality of Louisiana's habitual offender statute does not allow the Court to adopt petitioner's position on the matter.
Petitioner makes an additional claim under the Sixth Amendment, arguing that imposing a life sentence under Louisiana's recidivist statute violates his rights as expressed in Blakely v. Washington, 124 S.Ct. 2531 (2004). In Blakely, the Supreme Court held that the state trial court's sentencing of defendant to more than three years above the 53-month statutory maximum of the standard range for his offense, on the basis of sentencing judge's finding that defendant acted with deliberate cruelty, violated defendant's Sixth Amendment right to trial by jury. Id. at 2537. In contrast, the record shows that petitioner was afforded a jury trial and sentence was imposed within the statutory limits. The court in Blakely reasoned that it was improper for the trial judge to use facts not admitted or found by a jury to justify a sentence above the statutory maximum. Id. Here, petitioner's armed robbery conviction is supported by a jury verdict, and his sentence under the habitual offender statute is supported by three criminal convictions. Regardless of this fact, petitioner's sentence is not outside the statutory limitations; thus, the protections of the Sixth Amendment considered in Blakely are not relevant.
State v. Meredith, No. 2003-K-0644 (La.App. 4th Cir. June 9, 2003) (unpublished); State Rec., Vol. II of II.
For the foregoing reasons, the Court finds that the sentence imposed is not excessive and is consistent with the federal constitutional protections.
B. Ineffective Assistance of Counsel
The next issue is whether petitioner received ineffective assistance of counsel when his attorney failed to file a motion to reconsider sentencing with the trial judge. Specifically, petitioner alleges that his sentence was patently excessive and his counsel's failure to file the motion to reconsider was an elementary mistake.
Ineffective assistance of counsel claims are analyzed under the standard established by the United States Supreme Court in Strickland v. Washington, 466 U.S. 668 (1984). Strickland requires the defendant to show both that: (1) the trial counsel's performance was deficient and (2) the deficient performance prejudiced the defense. Id. See also United States v. Mullins, 315 F.3d 449, 452 (5th Cir. 2002), Sayre v. Anderson, 238 F.3d 631, 634 (5th Cir. 2001).
To satisfy the first prong of Strickland, a petitioner must prove that counsel's conduct fell below an objective standard of reasonableness. 466 U.S. at 687-688. Judicial review is highly deferential. Id. A court will judge whether counsel's acts or omissions fall within the range of professionally competent assistance based upon the facts of the particular case. Id. at 690. To prove prejudice under the second prong, 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." Id. at 694. A reviewing court may start with either component of the Strickland analysis, and is not required to reach the remaining question unless it finds that the defendant satisfied the first. Id. at 697. However, when the complained-of actions result in the actual or constructive denial of the assistance of counsel altogether, a petitioner need not prove prejudice under Strickland. Childs v. Collins, 995 F.2d 67, 68 (5th Cir.) (citing Penson v. Ohio, 488 U.S. 75, 88, 109 S.Ct. 346, 354, 102 L.Ed.2d 300 (1988), cert. denied, 510 U.S. 1016, 114 S.Ct. 613, 126 L.Ed.2d 577 (1993)). "If a petitioner can prove that the ineffective assistance of counsel denied him the right to appeal, then he need not further establish — as a prerequisite to habeas relief — that he had some chance of success on appeal." United States v. Gipson, 985 F.2d 212, 215 (5th Cir. 1993).
The Louisiana Fourth Circuit Court of Appeals has adjudicated petitioner's ineffective assistance of counsel claim. The AEDPA amendments to 8 U.S.C. § 2254 provide that a federal district court can only overturn the state's decision if the state court's decision "was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States" or "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." 28 U.S.C. § 2254(d); see also Moore v. Cockrell, 313 F.3d 880, 881 (5th Cir. 2002), cert. denied, 538 U.S. 969 (2003). Questions of law and mixed questions of law and fact are reviewed under the "contrary to" and "unreasonable application" prong of 28 U.S.C. § 2254(d). See Clark v. Johnson, 202 F.3d 760, 764 (5th Cir. 2000); Nobles v. Johnson, 127 F.3d 409, 415 (5th Cir. 1997). In Gardner v. Johnson, the Fifth Circuit set the level of deference pursuant to this "unreasonable application" standard: "We must reverse when we conclude that the state court decision applies the correct legal rule to a given set of facts in a manner that is so patently incorrect as to be unreasonable." 247 F.3d 551, 560 (5th Cir. 2001).
In this case, the claim of ineffective assistance of counsel is a mixed question of law and fact, consequently, it should be reviewed under the deference standard provided in Section 2254(d)(1). Moore, 313 F.3d at 881. The state court found petitioner's claim to be without merit because he could not meet the burden of proof under Strickland. The state reasoned petitioner received the minimum sentence for which he was eligible under Louisiana's habitual offender statute, and that petitioner could not show the exceptional circumstances necessary to warrant downward departure from the statutory minimum. See State v. Peden, 875 So.2d 934, 04-71 (La.App. 5 Cir. 5/26/04); State v. Davis, 801 So.2d 543, 2001-0392 (La.App. 4 Cir. 11/7/01). While not explicitly holding the attorney's conduct to be "objectively reasonable," the state court found that the attorney's failure to file a motion to reconsider sentence was not prejudicial because petitioner was not barred from arguing the excessiveness issue on appeal.
State v. Meredith, No. 2000-KA-0128 (La.App. 4th Cir. July 11, 2001) (unpublished); Supplemental State Rec., Vol. I of I.
Id.
Id.
Supplemental State Rec., Vol. I of I, transcript of October 28, 1999, p. 2; State Rec., Vol. I of II, minute entry dated October 28, 1999.
An examination of the record indicates that the state reasonably applied the Strickland standard in reviewing the ineffective assistance of counsel claim. The Court also notes that Petitioner has re-urged the excessiveness argument at nearly every stage subsequent to sentencing, thus, maintaining a "bare claim of excessiveness" throughout appeal. State v. Mims, 619 So.2d 1059 (La. 1993). In this way, the Court finds that the state court applied the Strickland test correctly, and not in such a way that was "contrary to" or an "unreasonable application" of "clearly established federal law, as determined by the Supreme Court of the United States." Therefore, the Court rejects petitioner's claim for habeas relief due to ineffective assistance of counsel.
C. Sufficiency of Evidence
Petitioner alleges in his Objection that the Magistrate failed to correctly apply the standard in reviewing his claim of insufficiency of evidence for his conviction. The standard for reviewing sufficiency of the evidence for a conviction was explained in Jackson v. Virginia, 443 U.S. 307 (1979). The reviewing court must determine whether, viewing the evidence, direct and circumstantial, "in the light most favorable to the prosecution, any rational trier of fact could have found the defendant guilty beyond a reasonable doubt." Santellan v. Cockrell, 271 F.3d, 193 (5th Cir. 2001) (quoting Jackson, 443 U.S. at 319).
The state court adjudicated petitioner's insufficiency of evidence claim applying the Jackson standard. Because the issue of sufficiency of evidence is a mixed question of law and fact, the Court, pursuant to 28 U.S.C. § 2254(d)(1), must defer to the state court unless its decision "was contrary to, or involved an unreasonable application of, clearly established Federal law." Taylor v. Day, Civil Action No. 98-3190, 1999 WL 195515, at *3 (E.D. La. Apr. 6, 1999), aff'd, 213 F.3d 639 (5th Cir. 2000). As noted above, the Fifth Circuit would find state court rulings reversible if, using the correct legal standard, the state court applied the law to a certain set of facts in such a way "that is [was] patently incorrect as to be unreasonable." Gardner, 247 F.3d at 560.
State v. Meredith, No. 2000-KA-0128, p. 8 (La.App. 4th Cir. July 11, 2001) (unpublished); Supplemental State Rec., Vol. I of I.
Here, the question presented to the state court was whether there was sufficient evidence to convict the petitioner of armed robbery. In Louisiana, armed robbery is defined as: (1) the taking; (2) of anything of value; (3) from the person of another or that is in the immediate control of another; (4) by the use of force or intimidation; (5) while armed with a dangerous weapon. La.R.S. 14:64. The jury was presented with testimony from Ms. Kelly who stated that the petitioner used the screwdriver to force her to give him money. The state reasoned that the jury found this testimony to be credible, and thus, rejected petitioner's claim of insufficiency of evidence. Indeed, a federal court may not substitute its own judgment regarding the credibility of witnesses for that of the state courts. All credibility choices must be resolved in favor of the jury's verdict." Cordova v. Johnson, 999 F.Supp. 473, 517 (W.D.Tex. 1998) (citations omitted). See also, United States v. Polk, 56 F.3d 613, 620 (5th Cir. 1995); United States v. Bermea, 30 F.3d 1539, 1552 (5th Cir. 1994), cert. denied sub nom. Garza v. United States, 514 U.S. 1097, 115 S.Ct. 1825, 131 L.Ed.2d 746 (1995). Consequently, the Court finds that the state court did not unreasonably apply the standards set forth in Jackson. Hence, habeas relief is precluded.
State v. Meredith, No. 2000-KA-0128, p. 2.
Id., p. 8.
D. Competency to Stand Trial
In his habeas petition, petitioner claims that the state proceeded against him without a determination of his competency, and that the written reports of the sanity commission were not filed into the record as required by La.C.Cr.P. art 645(B). Also, he argues that the state failed to meet its burden to show that he was competent to stand trial.
Thus, there are two issues regarding the competency issue. The first question is whether the state violated petitioner's 14th Amendment due process rights by proceeding against petitioner without appointing a sanity commission to determine his competency. The second question is whether it is procedurally proper to place the burden of establishing incompetency on petitioner, and whether placement of this burden on him violates notions of fundamental fairness.
Here, the petitioner has not made sufficient allegations to suggest the state engaged in any conduct in violation of due process rights. The state, in fact, appointed a sanity commission to determine the petitioner's mental condition, and after notice and hearing, the commission found that he was competent to stand trial on February 23, 1999.
State Rec., Vol I of II.
Id.
The Magistrate notes that in his federal petition, Meredith was accurate in saying that the competency hearing scheduled for February 9, 1999, was not held. However, the competency hearing was indeed rescheduled and held, thus, petitioner's allegations that no hearing was conducted is factually inaccurate. (See R/R p. 17).
Supplemental State Rec., Vol I of I, transcript of February 23, 1999; State Rec., Vol I of II, minute entry dated February 23, 1999.
Also, the petitioner alleges that the reports of the commission were not filed in accordance with state law in violation of his federal due process rights. The magistrate notes that it is unclear whether the written reports of the sanity commission were filed in accordance with La.C.Cr.P. art. 645(B). However, the Magistrate correctly states, "Even if the written reports were not filed in accordance with article 645(B), that would at most be a violation of state law not cognizable on federal habeas review." See Narvaiz v. Johnson, 134 F.3d 688, 695 (5th Cir. 1998) (a federal habeas court does not sit to review alleged errors of state law). In this way, the absence of the reports does not change the fact that petitioner was afforded a full, contradictory competency hearing.
With regard to the second question, the Supreme Court has enunciated in Medina v. California, 505 U.S. 437, 112 S.Ct. 2572, 120 L.Ed.2d 353 (1992) that a State may presume that the defendant is competent and require him to shoulder the burden of proving his incompetence by a preponderance of the evidence. Id. at 449, 112 S.Ct. at 2579. In reaching this conclusion the Court held that the relevant inquiry was whether such a presumption "offends some principle of justice so rooted in the traditions and conscience of our people as to be ranked as fundamental." Id. at 445, 112 S.Ct. at 2577 (quoting Patterson v. New York, 432 U.S. 197, 202 (1977)). The court concluded that the presumption of competence offends no recognized principle of "fundamental fairness" rested in part on the fact that the procedural rule affects the outcome "only in a narrow class of cases where the evidence is in equipoise; that is, where the evidence that a defendant is competent is just as strong as the evidence that he is incompetent." Id. at 449, 112 S.Ct. at 2579.
Placing the burden on petitioner to establish his incompetency with a preponderance of evidence is not a violation of fundamental fairness as described in Medina, 505 U.S. 437. In this case, the record does not suggest that this case falls within the "narrow class of cases" where creation of a procedural presumption in favor of the state affects the outcome of the hearing. The record indicates that petitioner may have a problem with alcoholism; however, there is no indication that he might have any psychotic disorder which would warrant an evidentiary hearing on the matter. A de novo review of the record suggests that placing the burden of persuasion on petitioner did not offend notions of fundamental fairness, and thus, the competency hearing was conducted in such a way that is consistent with the constitutional procedural protections. Therefore, the Court finds habeas relief precluded with regard to this issue.
Supplemental State Rec., Vol. I of I, transcript of February 23, 1999, p. 5; State Rec., Vol. I of II, minute entry dated October 28, 1999.
E. Ex Post Facto Violation
The final issue is whether petitioner's habitual offender adjudication violated the Ex Post Facto Clause of the U.S. Constitution. In his response to the magistrate's report, the petitioner does not object to the findings of the magistrate with respect to this issue. This Court may adopt the Magistrate's findings with regard to the unobjected portions of the report, so long as they are not clearly erroneous. Fed.R.Civ.Pro. 72(b).
Indeed, the "clearly erroneous" standard requires that the court affirm the decision of the magistrate judge unless "on the entire evidence [the court] is left with a definite and firm conviction that a mistake has been committed." United States v. United States Gypsum Co., 333 U.S. 364, 395, 68 S.Ct. 525, 92 L.Ed. 746 (1948)); See also Fed.R.Civ.P. 72(a). The district court may not undertake a de novo review of the magistrate's disposition. See e.g., Merritt v. Int'l Brotherhood of Boilermakers, 649 F.2d 1013, 1017 (5th Cir. Unit A 1981). Under the clearly erroneous standard of review, the review by the district court is circumscribed and the district court is bound by the clearly erroneous rule in reviewing questions of fact. Blair v. Sealift, 848 F.Supp. 670 (E.D.La. 1994) ( citing Haines v. Liggett Group, Inc., 975 F.2d 81, 91 (3d Cir. 1992).
The Magistrate's review of petitioner's claim regarding the ex post facto issue is not clearly erroneous. Petitioner's habeas petition contends that the Louisiana Legislature's classification of 'purse snatching' as a crime of violence occurred after he committed the crime; therefore, to use purse snatching as the predicate violent offense invoking the habitual offender statute is an ex post facto violation of the law. However, as the Magistrate correctly notes, the predicate violent offense making the habitual offender statute applicable was the armed robbery committed in February 1998.
The applicable habitual offender statute is the version in effect at the time of the commission of the predicate offense. Serio v. Stalder, 2003 WL 2238431, (E.D.La. 2003) ( citing State v. Everett, 816 So.2d 1272 (La. 2002). At the time of the commission of the predicate armed robbery La R.S. 15:529.1(A)(1)(b)(ii) read:
"If the third felony or either of the two prior felonies is a felony defined as a crime of violence under R.S. 14:2(13) or as a violation of the Uniform Controlled Dangerous Substances Law punishable by imprisonment for more than five years or any other crime punishable by imprisonment for more than twelve years, the person shall be imprisoned for the remainder of his natural life, without benefit of parole, probation, or suspension of sentence." (emphasis added).
In this way, only one of the three felonies need be a crime of violence to trigger the habitual offender statute. The Magistrate noted that trial court appropriately gave a life sentence to petitioner because armed robbery was a crime of violence, and not because purse snatching was thought of as a violent offense. In conclusion, reviewing the record regarding the unobjected claim according to a clearly erroneous standard, the court finds that the Magistrate was not clearly erroneous and adopts the Magistrate's recommendations with respect to this issue.
Supplemental State Rec., Vol. I of I, transcript of October 28, 1999, p. 2; State Rec., Vol. I of II, minute entry dated October 28, 1999.
Accordingly,
IT IS ORDERED that Wilbert Meredith's federal habeas petition is hereby DISMISSED WITH PREJUDICE.