Opinion
Civil Action No. 02-1286, C/W 03-753, 03-754, Section "K" (5).
December 20, 2004
ORDER AND REASONS
Before the Court is Hymel Varnado's Supplemental Consolidated Habeas Petition ("Supplemental Petition") filed pursuant to 28 U.S.C. § 2254. After considering the Supplemental Petition, the state court record, the applicable law, the Report and Recommendation of the Magistrate Judge ("Report and Recommendation"), the Petitioner's Objection to Magistrate's Report and Recommendation ("Petitioner's Objections") and having conducted a de novo review of the Magistrate's Report and Recommendation in light of Petitioner's Objections, the Court hereby DISMISSES the petitioner's Supplemental Petition, although for reasons which supplement and are in addition to the Report and Recommendation.
(Rec. Doc. No. 7) (attachment).
(Rec. Doc. No. 28).
(Rec. Doc. No. 29).
I. Factual Background
Petitioner Hymel Varnado is a state prisoner who is currently incarcerated at the Louisiana State Penitentiary in Angola, Louisiana. On October 5, 1995, Varnado was charged in a fifty-count indictment in the Criminal District Court for the Parish of Orleans, State of Louisiana. The indictment contained twelve counts of aggravated rape, twelve counts of aggravated kidnaping, twelve counts of armed robbery, eleven counts of aggravated crime against nature, and three counts of attempted armed robbery. The counts were severed such that the victims were divided into three groups, and one jury trial was held for each group.
The first trial ("Trial 1"), involving victims "E.H.", "K.M.", and "S.D.", occurred on November 18 and 19, 1996. The trial resulted in Varnado being convicted of three counts of aggravated rape, two counts of aggravated kidnaping, two counts of aggravated crimes against nature, two counts of armed robbery, one count of attempted aggravated kidnaping, and one count of attempted armed robbery. The Trial 1 convictions form the subject matter of Varnado's prior habeas petition numbered 03-CV-753.
The second trial ("Trial 2"), involving victims "A.B", "L.E.", and "T.J.", took place on January 28 and 29, 1997. In this trial, Varnado was convicted of two counts of aggravated rape, two counts of aggravated kidnaping, two counts of aggravated crimes against nature, and three counts of armed robbery. The Trial 2 convictions form the subject matter of Varnado's previous habeas petition numbered 02-CV-1286.
Varnado faced his third trial ("Trial 3") on March 12, 1997. This trial stemmed from various counts involving the victims "C.V.", "M.C.", and "T.C." and resulted in Varnado being convicted of three counts of aggravated rape, two counts of aggravated kidnaping, three counts of aggravated crimes against nature, one count of second degree kidnaping, and two counts of armed robbery. The Trial 3 convictions formed the subject matter of Varnado's previous habeas petition numbered 03-CV-754. Given the numerous counts upon which Varnado had already been convicted, the State elected to dismiss the remaining nineteen counts contained in the indictment, thus sparing the remaining victims from the ordeal of trial.
On April 18, 1997, Varnado was sentenced on thirty-one counts arising out the convictions obtained in Trials 1-3. Punishment was imposed such that multiple counts pertaining to a single victim were to be served concurrently. St. Rec. Vol. I of VI, Sentencing Transcript at 3. However, sets of sentences pertaining to different victims were to be served consecutively. Id. Thus, for example, in the Trial 2 (02-CV-1286) convictions, Varnado was sentenced to serve concurrent terms of life imprisonment, life imprisonment, fifty years, and fifteen years for the offenses against victim A.B. (the A.B. set of sentences); followed by a consecutive sentence of fifty years for his sole offense against victim L.E.; followed by concurrent terms of life imprisonment, life imprisonment, fifty years, and fifteen years for his offenses against victim T.J. (the T.J. set of sentences). In total, Varnado received fourteen life sentences plus an additional five hundred fifty-five years on the thirty-one counts.
II. Procedural History
As a threshold matter, this Court simply notes that the Louisiana court remedies pertaining to each of the Petitioner's ten claims either have been exhausted or have procedurally defaulted as required by 28 U.S.C. § 2254(b)(1)(A).
For the Trial 1 (03-CV-753) direct appellate history, see State v. Varnado, 97-2825 (La.App. 4 Cir. 9/22/99), 753 So. 2d 850, writ denied, 99-3187 (La. 4/20/00), 760 So. 2d 341.
For the Trial 2 (02-CV-1286) direct appellate history, see State v. Varnado, 97-1606 (La.App. 4 Cir. 4/21/99), 739 So. 2d 1026 (table case), writ denied, 99-1547 (La. 11/5/99), 751 So. 2d 231.
For the Trial 3 (03-CV-754) direct appellate history, see State v. Varnado, 97-2823 (La.App. 4 Cir. 5/19/99), 737 So. 2d 240, writ denied, 99-1547 (La. 11/5/99), 751 So. 2d 231.
For post conviction proceedings in Louisiana court, see State ex rel. Varnado v. State, 01-2367, (La. 3/28/02), 812 So. 2d 656; State ex rel. Varnado v. State, 01-2316 (La. 3/22/02), 811 So. 2d 925; State ex rel. Varnado v. State, 01-1844 (La. 3/15/02), 811 So. 2d 905.
For an overview of the Louisiana proceedings, see generally Petitioner's Motion to Amend, Consolidate, and Supplement Petition for Habeas Corpus and Request to Exceed Page Limitation, (Rec. Doc. No. 7).
The procedural history relevant to the issues currently before the Court begins on April 29, 2002 when the Petitioner submitted his Motion to Leave to Amend, Consolidate, and Supplement Petition for Habeas Corpus and Request to Exceed Page Limitation. (Rec. Doc. No. 7). Attached to Petitioner's Motion was the Supplemental Consolidated Petition for Writ of Habeas Corpus ("Supplemental Petition"). Prior to the Supplemental Petition, Varnado had filed three distinct habeas petitions in federal court numbered 03-CV-753, 02-CV-1286, and 03-CV-754, pertaining to Trials 1, 2, and 3, respectively. In the Order and Reasons dated February 28, 2003, this Court granted the Petitioner leave to amend, consolidate, and supplement his original habeas petition after concluding that the Petitioner had acted in a timely manner. (Rec. Doc. No. 14). Ultimately, however, the consolidation proved complex, and in reading the Supplemental Petition, it is often difficult to determine whether a particular claim is attacking Trial 1, Trial 2, Trial 3, all three trials, or some combination thereof.
On February 2, 2004, the Magistrate provided a Report and Recommendation in this matter. (Rec. Doc. No. 28). The Report and Recommendation addressed only the first three claims contained in the Supplemental Petition. After disposing of those three claims, the Magistrate invoked the "concurrent sentence doctrine" to avoid review of the remaining claims.
A discussion of the applicability of the "concurrent sentence doctrine" is contained infra.
On March 18, 2004, the Petitioner submitted his Objection to the Magistrate's Report and Recommendation ("Petitioner's Objection"), in which Varnado requested that the Report and Recommendation of the Magistrate "be set aside and rejected in its entirety." (Rec. Doc. No. 29 at 9). Thus, pursuant to 28 U.S.C. § 636(b)(1), this Court must consider each of the claims Varnado asserts in the Supplemental Petition as well as a de novo review of the entirety of Magistrate's Report and Recommendation. Accordingly, a summary of both the Petitioner's claims and the Magistrate's Report and Recommendation is in order.
III. Supplemental Petition Claims and the Magistrate's Report and Recommendation
The Supplemental Petition asserts the following ten claims:
1. Louisiana Code of Criminal Procedure article 413(C), upon which Petitioner's indictment was obtained, is unconstitutional.
2. Petitioner was indicted by a grand jury selected in a racially discriminatory manner in violation of the United States Constitution.
3. Petitioner was denied effective assistance of counsel as guaranteed by the United States Constitution.
4. The trial court erred in denying the defense motion for a mistrial when the prosecutor made a comment regarding the defendant's right to remain silent.
5. The prosecutor committed manifest error when he commented on defense counsel's objection during [C.V.'s] testimony.
6. The trial court erred in allowing the prosecutor to attempt to shift the burden of proof during his rebuttal closing argument.
7. Petitioner's right to due process was denied when the prosecutor made reference to other crimes supposedly committed by the appellant and the trial court denied the defense motion for a mistrial.
8. Petitioner's sentence was unconstitutionally excessive.
9. The trial court's and prosecutor's flagrant improper conduct violated petitioner's right to due process and impacted the jury toward a verdict of guilt.
10. The evidence presented at trial was insufficient to sustain a verdict of guilt beyond a reasonable doubt.
Supplemental Petition at viii. Furthermore, although not among the listed claims in the Supplemental Petition, Varnado contends in his Objection that an eleventh claim was raised, namely:
Issue 11:
The Lower Courts Erred by Not Finding That the Trial Court Committed Reversible Error When it Failed to Grant Defense Motion to Sever Defendant's Trial, in Violation of the Fifth Amendment to the United States Constitution.
Although, understandably, not addressed in the Report and Recommendation, this Court will confront the claim in the interest of disposing of this matter.
Faced with a multitude of offenses and claims, the Magistrate appropriately attempted to avoid the needless consumption of judicial resources where permissible. Thus, in the Report and Recommendation, the Magistrate first isolated claims 1, 2, and 3, which the Magistrate found to be the only claims attacking Varnado's Trial 2 (02-CV-1286) convictions. See Mag.'s Rep. and Rec. at 4-5. Next, the Magistrate examined claims 1, 2, and 3 and determined each claim to be without merit. Id. at 5-9. Finally, citing the "concurrent sentence doctrine," the Magistrate concluded that a review of Varnado's claims attacking his convictions in Trial 1 (03-CV-753) and Trial 3 (03-CV-754) need not be undertaken. Id. at 9-11. Instead, the Magistrate recommended that the claims relating to Trials 1 (03-CV-753) and 3 (03-CV-754) be dismissed without prejudice while the claims involving Trial 2 (02-CV-1286) be dismissed with prejudice.
IV. Discussion
A. Applicability of the Concurrent Sentence Doctrine
"The concurrent sentence doctrine is a tool used to promote judicial economy" whereby "the existence of one valid conviction makes unnecessary the review of other convictions which run concurrently with the valid conviction." United States v. Stovall, 825 F.2d 817, 824-25 (5th Cir. 1987). The Fifth Circuit "has long applied the concurrent sentence doctrine in habeas corpus cases, such that if a prisoner's conviction and sentence on one count are upheld, then it is proper for a court to decline review [of] identical sentences on other grounds and to deny habeas relief on that basis." Williams v. Maggio, 714 F.2d 554, 555 (5th Cir. 1983), cert denied, 465 U.S. 1035, 104 S.Ct. 1306, 79 L.Ed.2d 704 (1984); Rogers v. Wainwright, 394 F.2d 492, 493 (5th Cir. 1968). However, if the possibility exists that a prisoner may suffer adverse collateral consequences from the unreviewed convictions, then a habeas petition should be dismissed without prejudice to them. Scott v. State of Louisiana, 934 F.2d 631, 635 (5th Cir. 1991).
Varnado's convictions in Trial 2 (02-CV-1286) resulted in a concurrent sentences of life, life, fifty years, and fifteen years for his offenses against A.B.; followed by a fifty year sentence for his offense against L.E.; followed by concurrent terms of life, life, fifty years, and fifteen years for his offenses against T.J. St. Rec. Vol. I of VI, Sentencing Transcript. As applied in this matter, the concurrent sentence doctrine only allows the Court to avoid considering the Trial 1 (03-CV-753) and Trial 3 (03-CV-754) claims if those convictions run concurrently with the Trial 2 (02-CV-1286) convictions. However, this is not the case. Rather than running concurrently, the convictions obtained in Trial 1 (03-CV-753) and Trial 3 (03-CV-754), in fact, run consecutively to the convictions obtained in Trial 2 (02-CV-1286). See St. Rec. Vol. I of VI, Sentencing Transcript at 3. Accordingly, although the Magistrate correctly upheld the convictions in Trial 2 (02-CV-1286) and consequently called into question the use of judicial resources to review sentences which cannot even conceivably be served, the concurrent sentence doctrine is not applicable in this matter. See Stovall, 825 F.2d at 824-25. Thus, this Court must address each of the claims contained in Varnado's Supplemental Petition.
B. Request for an Evidentiary Hearing
In the Petitioner's Objection, Varnado reasserts his right to an evidentiary hearing. In support of his request, Varnado cites 28 U.S.C. § 2254(e)(2)(B) and suggests that satisfaction of this subsection alone allows a federal court to conduct an evidentiary hearing. Pet.'s Obj. to Mag's Rep. and Rec. at 2. In pertinent part, the section 2254 reads:
(2) If the applicant has failed to develop the factual basis for 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 factfinder would have found the applicant guilty of the underlying offense.28 U.S.C. § 2254(e)(2) (emphasis added). Thus, contrary to the petitioner's contention, satisfaction of section 2254(e)(2)(B) alone is insufficient because subparagraphs (A) and (B) are conjunctive. As the State correctly points out in its Supplemental Response, "because petitioner failed to establish a factual basis for his claim and failed to satisfy the requirements of 28 U.S.C. § 2254(e)(2)(A)(I) and (ii), there is no need to proceed to [subsection B]." Supp. Resp. to Hab. Corp. Pet. at 2 (Rec. Doc. No. 21). Therefore, as the Petitioner does not allege that subparagraph (A) is satisfied with respect to any of his claims nor does the record suggest that it could be, section 2254 does not provide the Court with the discretion to grant the Petitioner's request for an evidentiary hearing.
Furthermore, even assuming that section 2254(e)(2)(A) had been satisfied, this Court concludes that such an evidentiary hearing is not necessary. In his Objection, the petitioner states, "Varnado maintains that he has clearly developed factual bases for all his claims in state court proceedings." Pet.'s Obj. to Rep. and Rec. at 2. Thus, since the facts have already been clearly developed, there is no need for an evidentiary hearing, even if one were allowable.
C. Petitioner's Claims 1 and 2
Claim 1 — Louisiana Code of Criminal Procedure, article 413(C), upon which Petitioner's indictment was obtained, is unconstitutional.
Claim 2 — Petitioner was indicted by a grand jury selected in a racially discriminatory manner in violation of the United States Constitution.
Ultimately, as the Magistrate correctly noted, the Petitioner's first two claims ultimately hinge upon the same underlying issue, namely whether the Petitioner suffered any prejudice as a result of the alleged violations.
In the first claim, Varnardo asserts that Louisiana Code of Criminal Procedure article 413(C), upon which his indictment was obtained, is unconstitutional. Supp. Pet. at 6-9. However, the Louisiana Supreme Court only has held article 413(C) unconstitutional under Louisiana's Constitution, not the Federal Constitution. See State v. Dilosa, 02-2222 at *5-*6 (La. 6/27/03), 848 So. 2d 546,551. Thus, as originally stated, this claim is not subject to review by this Court. See 28 U.S.C. § 2254(a).
However, in Petitioner's Objection, Varnado attempts to clarify this claim. Petitioner explains:
Varnado has not asked that his convictions be overturned solely because of the Dilosa ruling. He asks merely that, first, this Honorable Court take notice that the Louisiana Supreme Court has declared the aforesaid statutes unconstitutional in part or in totality, and that Varnado was indicted under these same statutes. Secondly, the effect of these unconstitutional statutes led directly to the claims Varnado properly raised in his habeas petition, namely, that he was indicted by an Orleans Parish grand jury in a racially discriminatory manner in violation of the United States Constitution.
Pet.'s Obj. at 3 (emphasis in original). Thus, as restated in his Objection, claim 1 becomes indistinguishable from claim 2 and need not be independently evaluated.
In claim 2, Petitioner asserts that his constitutional rights were violated in that he was indicted by a grand jury selected in a racially discriminatory manner. The Magistrate properly concluded that Petitioner's claim had procedurally defaulted. In Deloch v. Whitley, the Louisiana Supreme Court unequivocally declared:
All equal protection claims arising out of the selection or composition of grand juries in Louisiana remain subject to the state's procedural requirements. Counsel must assert the equal protection claim in a pre-trial motion to quash or waive any complaint in that regard.
96-1901 (La. 11/22/96), 684 So. 2d 349 (emphasis in original). As the Petitioner failed to assert claim 2 in a pre-trial motion to quash, the Louisiana courts refused to address claim 2 and a procedural default occurred. See generally Coleman v. Thompson, 501 U.S. 722, 750, 111 S.Ct. 2546, 2565, 115 L.Ed.2d 640 (1991) (discussing the procedural default doctrine). Consequently, in this proceeding, Varnado may only overcome the procedural default via two alternative paths. According to the first option, Varnado must prove both (1) cause for the default and (2) actual prejudice resulting therefrom. Coleman, 501 U.S. at 750, 111 S.Ct. at 2565. Pursuant to the second option, Varnado must show that a failure to entertain the claim will result in a "fundamental miscarriage of justice." Id.
Concerning the cause and prejudice alternative, the Court agrees with the Magistrate's Report and Recommendation that Varnado cannot establish the requisite prejudice. Having reviewed the record in its entirety, the Court agrees that "even if Varnado had been successful in having his indictment quashed, the State would have undoubtedly sought and obtained a second indictment." Mag's Rep. and Rec. at 8. Thus, an inspection for cause is not necessary.
With respect to the second option, the Court again agrees with the Magistrate's Report and Recommendation. Varnado has made no colorable showing of actual innocence, the hallmark of the "fundamental miscarriage of justice" route, nor does the record provide anything to suggest that Varnado is factually innocent. Rather, Varnado's Supplemental Petition attacks the sufficiency of the evidence used to convict him and the fairness of the process by which he was convicted. Although legally legitimate claims, Varnado certainly has not established by a clear and convincing standard that a fundamental miscarriage of justice will occur absent review of this claim. Accordingly, as neither prong is satisfied, Varnado cannot overcome the procedural default of claims 1 and 2.
D. Claim 3 — Petitioner was denied effective assistance of counsel as guaranteed by the United States Constitution.
To succeed on an ineffective assistance of counsel claim, the Petition must establish both actual ineffectiveness of counsel and prejudice therefrom. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984). In the Supplemental Petition, Varnado maintains that his counsel was ineffective in failing to file a pre-trial motion to quash the indictment. Supp. Pet. at 16. Whether this failure to file a motion to quash actually rendered Varnado's counsel ineffective remains dubious. See Michel v. Louisiana, 350 U.S. 91, 101, 76 S.Ct. 158, 164, 100 L.Ed.83 (1955) ("The mere fact that a timely motion to quash was not filed does not overcome the presumption of effectiveness."). However, this particular point need not be addressed, because as already noted in the discussion of claims 1 and 2, the failure to file a motion to quash the indictment did not result in prejudice to the Petitioner. Thus, claim 3 must fail.
E. Claim Resurrected in Objection — The lower courts erred by not finding that the trial court committed reversible error when it failed to grant defense motion to sever defendant's trial, in violation of the Fifth Amendment to the United States Constitution.
Although the Court notes that this claim is not present in the Supplemental Consolidated Petition, the claim was present in the original Habeas Petition and the claim reappears in the Petitioner's Objection to the Magistrate's Report and Recommendation. Thus, in the interest of finality, the Court has considered this matter and determined that it is without merit.
Memorandum of Law in Support of Application for Writ of Habeas Corpus at 16, (Rec. Doc. No. 1) (attachment).
(Rec. Doc. No. 29 at 8).
The Court first notes that the Petitioner's Objection is ambiguous as to which of the three trials the Petitioner intends to attack. Pet.'s Obj. at 8. However, as facts pertinent to this claim were substantially similar in all three trials, the particular setting proves inconsequential to this Court's determination of the claim's validity.
To recapitulate, Trial 1 (03-CV-753) involved crimes against "E.H.", "K.M.", and "S.D." Trial 2 (02-CV-1286) involving crimes against A.B., L.E., and T.J. Finally, Trial 3 (03-CV-754) involved crimes against "C.V.", "M.C.", and "T.C."
To dispose of the claim, this Court must ask whether the decision of the Louisiana courts "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). When faced with the same issue, the Louisiana Fourth Circuit Court of Appeal concluded Varnado's claim was without merit. State v. Varnado, 97-1606 at *7 (La.App. 4 Cir. 4/21/99). First, the Louisiana Fourth Circuit noted crimes committed upon L.E. and T.J. were necessarily joined under Louisiana Code of Criminal Procedure article 493 because the crimes constituted part of a common plan. Id. at *10. This conclusion is wholly in line with federal practice. See Fed.R.Crim.P. 8(a). Second, the Louisiana Fourth Circuit concluded that the additional joinder did not result in any jury confusion. The Fourth Circuit continued, "[b]ecause each victim was separately cross-examined, joinder of the offenses did not hinder the presentation of Mr. Varnado's defense of misidentification. In addition, the jury was given a separate verdict form for each count, and was instructed [to consider each count separately]." Varnado, 97-1606 at *10.
In Spencer v. Texas, the United States Supreme Court recognized that the joinder of offenses is a constitutionally acceptable accommodation of a defendant's right to a fair trial. 385 U.S. 554, 562-63, 87 S.Ct. 648, 652-53, 17 L.Ed.2d 606 (1967). Thus, in order to succeed on a due process claim based upon the joinder of offenses, the United States Fifth Circuit has concluded that actual prejudice must result from the joinder. Tribbitt v. Wainwright, 540 F.2d 840, 841 (5th Cir. 1976). The Louisiana Fourth Circuit's discussion of "jury confusion" appears substantially similar to federal precedent focusing upon actual prejudice to the defendant. See Varnado, 97-1606 at *10. Consequently, this Court cannot conclude that the decision of the Louisiana courts was "contrary to, or an unreasonable application of Federal law." 28 U.S.C. § 2254(d)(1). Therefore, the Petitioner's claim must fail.
F. Claim 4 — The trial court erred in denying the defense motion for a mistrial when the prosecutor made a comment regarding the defendant's right to remain silent.
The Petitioner's objection centers upon the examination of Detective Dennis Dejean in Trial 3 (03-CV-754). In the Supplemental Petition, Varnado explains:
During the of [sic] testimony of Det. Dennis Dejean, the officer who arrested [Varnado], the following colloquy took place:
Q: Did you arrest Hymel Varnado?
A: Yes.
Q: And where did you arrest him?
A: At 8533 Chase Street.
Q: Did you advise him of his rights?
A: Yes. I did.
Q: Did he make any statements?
A: No he did not.
St. Rec. Vol IV of VI, Trial Tr. p. 158. The Petitioner contends, as did his counsel at trial, that the final question impermissibly allowed the jury to draw an inference of guilt from his refusal to give a statement to police. Accordingly, Petitioner contends that his due process rights were violated for the reasons enunciated in Doyle v. Ohio. 426 U.S. 610, 96 S.Ct. 2240, 49 L.Ed. 2d 91 (1976).
When faced with this same argument on direct appeal, the Louisiana Fourth Circuit Court of Appeal examined the Louisiana Supreme Court's decision in State v. George. 95-0110 at *8 (La. 10/16/95), 661 So. 2d 975, 979. In State v. George, the Louisiana Supreme Court explained, " Doyle condemns only 'the use for impeachment purposes of [the defendant's] silence at the time of arrest.'" Id. at *9-*10 ( citing Doyle, 426 U.S. at 619, 96 S.Ct. at 2245). Thus, the Fourth Circuit concluded:
In this case, as in State v. George . . . the prosecutor's questions were aimed at showing the circumstances of the defendant's arrest and the extent of the investigation; they were not designed to exploit the defendant's failure to claim his innocence after he was arrested in an effort to impeach or attack his defense. Defense counsel did not object or move for a mistrial until after the jury had heard the prosecutor's questions and the officer's answers. Counsel declined the trial court's offer to admonish the jury. Nevertheless, the court informed the jury in the instructions that the defendant was not required to make any statements, and his silence should not be held against him. There is no reversible error.State v. Varnado, 97-2823 at *17 (La.App. 4 Cir. 5/19/99), 737 So. 2d 240, 250 (emphasis added). Faced with the Louisiana Fourth Circuit's reasoning, this Court cannot conclude that its decision was "contrary to, or involved an unreasonable application of, the clearly established Federal law," as enunciated in Doyle v. Ohio. See 28 U.S.C. § 2254. Thus, claim 4 is without merit.
G. Claim 8 — Petitioner's sentence was unconstitutionally excessive.
In the Supplemental Petition, Varnado contends that the sentences imposed for the Trial 3 (03-CV-754) convictions are unconstitutionally excessive, in violation of the Eighth Amendment to the United States Constitution. Again, while the Supplemental Petition raises this claim in the limited context of the Trial 3 (03-CV-754) convictions, the disposition of this claim would be the same if raised to attack the convictions obtained in Trial 1 (03-CV-753) or Trial 2 (02-CV-1286).
In summary, the Petitioner contends that the Trial 3 (03-CV-754) sentences are constitutionally excessive when "taken collectively." Supp. Pet. at 27. However, Varnado admits that "the sentences are legal and the life sentences are mandatory under the state statutes." Id. When facing this claim, the Louisiana Fourth Circuit first noted the wide discretion reserved to a trial court in sentencing and then continued:
As the defendant concedes, the life sentences were mandatory and the other sentences were to be served without benefits by law. The court correctly made the sentences for each incident run concurrently with each other, but consecutively to the sentences relating to the other separate incidents. The defendant does not point to any one individual sentence that was excessive. None of the sentences appear to be excessive or without support in the record. At sentencing, the trial court pointed out that the defendant had been on a reign of terror and was not a subject for sympathy. . . . The sentences imposed are not excessive.State v. Varnado, 97-2823 at *12 (La.App. 4 Cir. 5/19/99), 737 So. 2d 240, 247-48.
Ultimately, this Court agrees that the Petitioner's claim is without merit. The Petition fails to provide any "clearly established Federal law, as determined by the Supreme Court of the United States" which runs contrary to the Louisiana Fourth Circuit's conclusion. See 28 U.S.C. § 2254(d)(1). A sentence falling within statutory limits is unconstitutionally excessive only when a prisoner can show that a sentencing decision amounted to an arbitrary and capricious abuse of discretion and thereby deprived the petitioner of his liberty. Haynes v. Butler, 825 F.2d 921, 923-24 (5th Cir. 1987). This Court first notes that many of the sentences are mandatory, thus divesting the sentencing judge of any discretion. Further, even when the trial judge did exercise discretion in sentencing, given the serious nature of the offenses, no abuse of discretion occurred. Finally, the Petitioner's fundamental premise that sentences for multiple offenses can be "collective excessive" appears dubious. Taken to its logical extension, Petitioner's premise leads to the counterintuitive result that the commission of multiple crimes would actually mitigate the punishment imposed for each individual crime, in essence rewarding criminals for committing more than one offense. Ultimately, therefore, claim 9 is without merit.
H. Claim 10 — The evidence presented at trial was insufficient to sustain a verdict of guilty beyond a reasonable doubt.
The Petitioner makes this claim in a previous Petition as it pertains to his Trial 2 (02-CV-1286) convictions. However, in the Supplemental Petition, Varnado refers to the facts of Trial 1 (03-CV-753). In order to exhaust this matter, the Court will review the claim in both instances.
See Application for Writ of Habeas Corpus and Memorandum of Law, (Rec. Doc. No. 1) (attachment).
In Jackson v. Virginia, the United States Supreme Court provided the proper standard by which an insufficiency of evidence claim must be reviewed. 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). Namely, in evaluating the sufficiency of evidence to support a guilty verdict, an appellate court must determine whether any reasonable trier of fact could have found the defendant guilty beyond a reasonable doubt when viewing the evidence in the light most favorable to the prosecution. Jackson, 443 U.S. at 318, 99 S.Ct. at 2788-89.
In essence, the Petitioner asserts that the eyewitness identification by the victims, without more, is constitutionally insufficient to support his conviction. Supp. Pet. at 35-36. First, the Court notes that at least with regard to Trial 2 (02-CV-1286) additional evidence identifying Varnado as the perpetrator was presented. Most notably, Varnado's blood type matched that of blood found on A.B.'s clothing. State v. Varnado, 97-1606 at *5-*6 (La.App. 4 Cir. 04/12/99). However, with regard to Trial 1 (03-CV-753), the Louisiana Fourth Circuit concluded a victim's identification alone can prove constitutionally sufficient to satisfy the Jackson standard. State v. Varnado, 97-2825 at *14 (La.App. 4 Cir. 9/22/99), 753 So. 2d 850, 859. Ultimately, this Court cannot conclude that the Fourth Circuit's decision was an "unreasonable application" of Jackson. 28 U.S.C. § 2254(d)(1). Consequently, this claim must fail.
In addition, the Court notes that in Trial 3 (03-CV-754) the victim's identifications of Varnado as their attacker was bolstered by other evidence. Specifically, Varnado's blood type matched that of both T.C.'s and M.C.'s attacker. Further, T.C. testified that her attacker had a tattoo on his right shoulder spelling out either "kymel" or "hymel," and Varnado has a similar tattoo.
I. Various Prosecutorial Misconduct Claims
1. Standard of Review
The standard for reviewing prosecutorial misconduct in a habeas corpus case is whether the prosecutor's actions are of such a nature as to render the trial fundamentally unfair. Donnelly v. DeChristoforo, 416 U.S. 637, 643, 94 S.Ct. 1868, 1871, 40 L.Ed.2d 431 (1974). "In a Section 2254 proceeding more than undesirability or even 'universal condemnation' must be shown. Unless a specific guarantee of the Bill of Rights in involved, it must be shown that the remarks were too prejudicial that they rendered the trial in question fundamentally unfair." Cobb v. Wainwright, 609 F.2d 754, 755-56 (5th Cir. 1980), cert. denied, 447 U.S. 907, 100 S.Ct. 2991, 64 L.Ed.2d 857 (1980). "There is such unfairness only if the prosecutor's remarks evince 'either persistent and pronounced misconduct or . . . the evidence was so insubstantial that (in probability) but for the remarks no conviction would have occurred.'" Kirkpatrick v. Blackburn, 777 F.2d 272, 281 (5th Cir. 1985) ( quoting Fulford v. Maggio, 692 F.2d 354, 359 (5th Cir. 1982), rev'd on other grounds, 462 U.S. 111, 103 S.Ct. 2261, 76 L.Ed.2d 794 (1983)), cert. denied, 476 U.S. 1178, 106 S.Ct. 2907, 90 L.Ed.2d 993 (1986).
2. Claim 5 — The prosecutor committed manifest error when he commented on the defense counsel's objection during [C.V.'s] testimony.
The facts discussed in the Supplemental Petition suggest that this claim attacks the convictions obtained in Trial 3 (03-CV-754). Apparently, during the direct examination of C.V., the defense counsel, Mr. Whittaker, made several evidentiary objections. During the State's rebuttal closing argument, Ms. Holahan, the prosecutor, referenced Mr. Whittaker's prior objections as if to suggest that Mr. Whittaker was trying to hide the truth from the jury. Supp. Pet. at 22. Specifically, Ms. Holahan stated, "[a]nd why there was [sic] so much objection to C.V." St. Rec. Vol. IV of VI, Trial Tr. p. 191-92. Although improper as characterized, the Petitioner has failed to establish that the prosecutor's comment rendered his trial "fundamentally unfair," nor can this Court conclude that the evidence was "so insubstantial that but for the remarks no conviction would have occurred." The Louisiana Fourth Circuit considered this claim in light of Louisiana's jurisprudence on this issue, which is substantively in line with federal precedent. Compare, State v. Varnado, 97-2825 at *7-*8 (La.App. 4 Cir. 9/22/99) (and citations contained therein) with, e.g., United States v. Lankford, 196 F.3d 563, 574 (5th Cir. 1999). Accordingly, as the Louisiana Fourth Circuit's decision was not "contrary to clearly established Federal law," habeas relief on this claim is not available to the Petitioner. 28 U.S.C. § 2254(d)(1).
See Donnelly, 416 U.S. at 643, 94 S.Ct. at 1871; see also Cobb v. Wainwright, 609 F.2d at 755-56.
Kirkpatrick v. Blackburn, 777 F.2d at 281.
Petitioner makes a similar argument regarding Trial 1 (03-CV-753) in claim 9(C) of the Supplemental Petition. In that context, the Petitioner objects to the following exchange:
Mr. Freeman [prosecutor]:
You see Mr. Whittaker constantly stepping up? It's getting close to the truth.
Mr. Whittaker [defense counsel]:
Judge, I object. Again, that's improper. My job is to object when it's proper to do so and I think these are proper objections.
The Court:
I'm going to sustain that objection. You cannot comment on his objections. You can't argue the objections he makes. That is improper.
St. Rec. Vol. V of VI, Trial Tr. p. 212-13. For the same reasons discussed above, this claim lacks merit.
2. Claim 6 — The trial court erred in allowing the prosecutor to attempt to shift the burden of proof during his rebuttal closing argument.
In the Supplemental Petition, the Petitioner complains of the certain statements made by the prosecutor during the closing argument of Trial 3 (03-CV-754). Supp. Pet. at 23 (referring to St. Rec. Vol. IV of VI, Tr. Trans. p. 192-93). In particular, the Petitioner claims that certain statements made by the prosecutor concerning the "equal access" to evidence tended to impermissibly shift the burden of proof. Id. A similar claim can be found in claim 9(B) of the Supplemental Petition with respect to the facts of Trial 1 (03-CV-753). Ultimately, however, the particular setting in which this claim is raised is unimportant to the claim's validity because all three trials were sufficiently similar to arrive at the same result. In each instance, the prosecutor's comments occurred during closing argument, and the "equal access" language used by the prosecutor appears almost identical. Consequently, the following analysis is applicable regardless of whether this claim is raised in the context of Trial 1, Trial 2, or Trial 3.
When facing this argument on the facts of Trial 3 (03-CV-754), the Louisiana Fourth Circuit concluded, "in light of the testimony of the three victims and their positive identifications of [Varnado], we are not convinced the remarks influenced the jury and contributed to the verdict." State v. Varnado, 97-2823 at *20, 737 So. 2d 240, 251-52. In support of the conclusion, the Louisiana Fourth Circuit also pointed to the jury instruction in which the trial court stated that the accused is to be presumed innocent until each element of the offense is proven beyond a reasonable doubt. Id. Given the curative instruction, the substantial evidence of guilt, and the failure of the Petitioner to show how this comment rendered the trial fundamentally unfair, this Court cannot conclude that the Louisiana Fourth Circuit decision was contrary to federal law. Further, as the circumstances in Trial 1 (03-CV-753) are substantially similar, this claim must fail in that context as well.
3. Claim 7 — The Petitioner's right to due process was denied when the prosecutor made a reference to other crimes supposedly committed by the [petitioner] and the trial court denied the defense motion for a mistrial.
The Supplemental Petition makes this claim only with respect to the facts of Trial 3 (03-CV-754). The Louisiana Fourth Circuit dismissed this argument on the grounds that the "other crimes" constituted part of the res gestae. Id. at *20-*21. Thus, the Fourth Circuit concluded that the prosecutor had not acted improperly. Id. This Court has not found any federal precedent to the contrary, nor has the Petitioner provided any federal precedent in his Supplemental Petition. Accordingly, this claim is without merit.
A similar claim can be found in claim 9(D) of the Supplemental Petition. In this claim, the Petitioner contends that an inadvertent reference to his "rap sheet" during the course of a stipulation was prejudicial to the jury. Supp. Pet. at 32-33. Further, the Petition suggests that in referencing the "rap sheet" the trial judge abandoned his role as a neutral arbiter. Id. at 34-35. On the basis of state law, the Louisiana Fourth Circuit found each of these related arguments to be without merit. State v. Varnado, 97-2825 at *9-*10 (La.App. 4 Cir. 9/22/99), 753 So. 2d 850, 857. Again, this Court cannot find federal precedent contrary to the Fourth Circuit's conclusion, nor does Petitioner provide any to that effect.
4. Claim 9 — The trial court's and prosecutor's flagrant improper conduct violated petitioner's right to due process and impacted the jury toward a verdict of guilt.
As claims 9(B), and 9(C), and 9(D) have been considered supra, only claim 9(A) remains to be examined.
5. Claim 9(A) — The prosecutor mislead the jury regarding the petitioner's gold-capped teeth.
This claim attacks Varnado's convictions in Trial 1 (03-CV-753). Faced with this claim on appeal, the Louisiana Fourth Circuit explained:
[T]he prosecutor made comments concerning the defendant's gold teeth, and he speculated whether or not the defendant had tattoos and gold teeth at the time that the crimes took place. Though, the defense counsel continuously objected to the comments that were made, the prosecutor used the defense counsel's repeated objections as signs of the defendant's guilt. Yet, the trial judge admonished the jury to disregard the prosecutor's remarks, we find that the comments complained of herein did not prejudice the juries verdict, considering that the trial judge found that a simple admonishment in this case to be sufficient.State v. Varnado, 97-2825 at *8 (La.App. 4 Cir. 9/22/99), 753 So. 2d 850, 856. The Louisiana Fourth Circuit relied upon state jurisprudence to the effect prejudice must be shown to succeed on this prosecutorial misconduct claim. Id. ( citing State v. Green, 416 So. 2d 539, 542 (La. 1982)). This Louisiana jurisprudence is not clearly contrary to any federal law. See 28 U.S.C. § 2254(d)(1). Accordingly, this claim is without substance.
V. Conclusion
For the foregoing reasons, the Petitioner's Supplemental Consolidated Petition, and the claims contained therein, are DISMISSED with PREJUDICE.