Opinion
No. 98-0584
June 27, 2000
ORDER AND REASONS
Petitioner's pro se petition for post conviction relief pursuant to 28 U.S.C. § 2254 is before me on remand, the Fifth Circuit Court of Appeals having held that "Washington's federal habeas application is timely" and having vacated my earlier judgment dismissing petitioner's claims as time barred under 28 U.S.C. § 2244(d)(1). Upon review of the entire record, including the state court record, it is clear that the record is sufficient for the purpose of adjudicating petitioner's claim, that a federal evidentiary hearing is not necessary, and that the petition should be dismissed for the following reasons.
Washington v. Cain, No. 98-31309 (5th Cir. May 3, 2000).
Washington v. Cain, No. 98-5584 (E.D. La. November 19, 1998).
Brent Washington is a state court prisoner who was convicted following a trial by jury of two counts of armed robbery (La. Rev. Stat. 14:64), one count of aggravated rape (La. Rev. Stat. 14:42), and one count of aggravated crime against nature (La. Rev. Stat. 14:89.1) Petitioner was sentenced to life imprisonment at hard labor without benefit of parole, probation or suspension of sentence on the aggravated rape count and to thirty (30) years imprisonment at hard labor on each count of armed robbery. All of the sentences are to be served concurrently. Petitioner appealed his conviction for aggravated rape; the conviction was affirmed. Louisiana v. Washington, No. KA-1812 (La.App. 4th Cir. December 10, 1984).
The trial judge granted Washington's motion for a new trial on the count of aggravated crime against nature. Thereafter the state entered a nolle prosequi as to that count.
Petitioner then filed an application for state habeas relief. He contended that he was denied due process because the prosecution withheld the initial police report, which allegedly contained evidence material to his defense. Petitioner also urged that his counsel was ineffective for failing to object when another detective was permitted to testify rather than Detective S. Joachim. The trial court denied the application. Louisiana v. Washington, No. 288-737 (Criminal District Court Parish of Orleans, December 4, 1989). The state court of appeals denied petitioner's application for writs. State ex rel Washington v. Louisiana, No. 89-K-2351 (La.App. 4th Cir. March 13, 1990). The Louisiana Supreme Court also denied writs. State ex rel Washington v. Louisiana, 584 So.2d 671 (La. 1991).
Petitioner then filed a second application for state habeas relief. The state trial judge denied the application. Washington v. Louisiana, No. 288-737 (Criminal District Court Parish of Orleans, July 29, 1996). The state court of appeals denied Washington's application for writ of review. Washington v. Cain, No. 96-KH-2479 (La.App. 4th Cir. August 28, 1996). The Louisiana Supreme Court also denied writs. State ex rel Washington v. Louisiana, 701 So.2d 150 (La. 1997).
EXHAUSTION
Petitioner contends that his aggravated rape conviction must be vacated because contrary to Brady v. Maryland, 373 U.S. 83. 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), the prosecution failed to disclose evidence material to petitioner's defense (hereinafter referred to as the Brady claim) and because his counsel was ineffective for failing to conduct a reasonable investigation, failing to discover the police report withheld by the prosecution, failing to subpoena Rusty St. Cyr to testify at trial, and failing to cite case law in support of counsel's motion to exclude serological evidence. Petitioner raised the Brady claim in the state court proceedings described above. He has exhausted his available state court remedies as to that claim. Rose v. Lundy, 455 U.S. 509, 102 S.Ct. 1198, 71 L.Ed.2d 379 (1982); Dupuy v. Butler, 837 F.2d 699, 702 (5th Cir. 1988).
Contrary to the state's assertion, petitioner's present ineffective assistance of counsel claim was not presented to the Louisiana Supreme Court. Even though petitioner failed to exhaust his state court remedies as to this claim, it is not necessary to dismiss this "mixed" petition containing both exhausted and unexhausted claims. 28 U.S.C. § 2254(b)(2) permits the denial of unexhausted claims on the merits. Because petitioner is not entitled to relief on his unexhausted claim, it is not necessary to dismiss the petition to permit petitioner to pursue his ineffective assistance of counsel claim in state court.
Petitioner's last brief to the Louisiana Supreme Court addressed only the issue of the timeliness of his Brady claim under Louisiana law. The Louisiana Supreme Court rejected a claim of ineffective assistance of counsel in petitioner's first application for state habeas relief. However that claim of ineffective assistance was based on a different ground than that urged in petitioner's second application for state habeas relief.
FACTS
The Louisiana Fourth Circuit Court of Appeals succinctly set forth the facts as follows:
At about 8:00 p.m. on January 7, 1982, two men accosted the husband of the victim as he got out of his car after arriving home from the grocery store. The shorter of the two men carried a sawedoff shotgun. After taking his jewelry, the two men forced the husband into the house, where his pregnant wife was waiting for him. They took the wife's purse, then forced her husband to lie face down on their bed, and began questioning the victims as to where their valuables were located. At one point, as the wife emerged from a closet with some jewelry to give the intruders, she saw a third man, who was talking to one of the others for only a few minutes before he left, going in the direction of the front door.
While the shorter of the first two men held the gun over the husband the taller one took the wife into the bathroom, where he raped her and forced her to participate in oral sex. He then told her to get into the bathtub and stay there, took the jewelry she was wearing and left. The shorter man brought the wife out of the bathroom.
After taking some silverware, the men tied up the couple with a stereo cord and placed them in their utility room. The couple crouched behind their washer and dryer until the house became quiet and they heard a loud, unfamiliar car go down the street. They escaped from the utility room and ran to a neighbor's house, where they called the police. The wife was then taken to a hospital and examined by her physician.
On April 8, 1982, the defendant and two other persons, Rusty St. Cyr and Tony Wright, were indicted on two counts of armed robbery, one count of aggravated rape, and one count of aggravated crime against nature. The three pled not guilty and were tried separately.State v. Washington, No. KA-1812 (La.App. 4th Cir. December 10, 1984), pgs. 2-3.
BRADY CLAIM
Petitioner contends that his aggravated rape conviction must be vacated because, contrary to Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), the state failed to disclose material evidence, i.e., a supplemental police report containing allegedly exculpatory evidence. Specifically, petitioner contends that the description of the rapist in the supplemental police report differs from Mrs. McMillan's description of the rapist at trial, and that the description in that police report could have been used to impeach Mrs. McMillan's trial testimony.
In Brady, the Supreme Court held that "the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution." Id. at 87, 83 S.Ct. at 1196- 97. Thereafter the Supreme Court held that the prosecution had a duty to disclose evidence favorable to the accused even if the accused did not request the disclosure — if the suppression of the evidence would be "of sufficient significance to result in the denial of the defendant's right to a fair trial." United States v. Agurs, 427 U.S. 97, 108, 96 S.Ct. 2392, 2400, 49 L.Ed.2d 342 (1976). In United States v. Bagley, 473 U.S.667, 105 S.Ct. 3375, 3385, 87 L.Ed.2d 481 (1985), the Supreme Court again addressed the issue of suppression of evidence by the prosecution, concluding that regardless of whether the defendant requested the evidence, favorable evidence is material, and constitutional error results from its suppression by the government "if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding could have been different. . . ." Id. at 682, 105 S.Ct. at 3383 (opinion of Blackmun, J.); Id. at 685, 105 S.ct. at 3385 (White, J. concurring in part and concurring in judgment). Additionally, in Bagley the Supreme Court concluded that "impeachment evidence, . . . as well as exculpatory evidence, falls within the Brady rule." Id. at 676, 105 S.Ct. at 3380.
The state contends that federal review of this claim is procedurally barred. I agree. "[A] federal court may not consider a state prisoner's federal habeas claim when the state based its rejection of that claim on an adequate and independent state ground." Martin v. Maxey, 98 F.3d 844, 846 (5th Cir. 1996), citing Coleman v. Thompson, 501 U.S. 722, 750, 111 S.Ct. 2546, 2565, 115 L. Ed.2d 640 (1991). A procedural bar is "adequate" if it is applied "strictly or regularly" to the "vast majority of similar claims." Amos v. Scott, 61 F.3d 333, 339 (5th Cir.), cert. denied, 516 U.S. 1005, 116 S.Ct. 557, 133 L.Ed.2d 458 (1995).
The Louisiana Supreme Court rejected petitioner's second application for state habeas relief, which raised this claim, based on Louisiana Code of Criminal Procedure articles 930.4 and 930.8. Article 930.4, entitled "Repetitive applications", provides in pertinent part that "[a] successive application may be dismissed if it raises anew or different claim that was inexcusably omitted from a prior application."
In his first application for state habeas relief, Washington also urged a violation of Brady v. Maryland based on the prosecution's failure to disclose the initial police report, which petitioner contended was exculpatory because it did not include a description of the rapist.
In denying petitioner's second application for state habeas relief, the Louisiana Supreme Court also concluded that the Brady claim alleging the failure to disclose the supplemental police report was barred from consideration under article 930.8 of the Louisiana Code of Criminal Procedure because it was filed more than three years after the judgment of conviction and sentence became final.
Because articles 930.4 and 930.8 operate as independent and adequate state grounds, and were applied by the state as bars to petitioner's claims, Washington's federal claim is barred under the procedural default doctrine unless he can demonstrate "cause" for the default and prejudice resulting from the default, or show that the federal court's failure to review the defaulted claim will result in a fundamental miscarriage of justice. Amos v. Scott, 61 F.3d at 339 (citations omitted). "Cause" is "`something external to the petitioner, something that cannot fairly be attributed to him' that impedes his efforts to comply with the procedural rule." Moore v. Roberts, 83 F.3d 699, 703 (5th Cir. 1996), cert. denied, 519 U.S.1093, 117 S.Ct. 772, quoting Coleman v. Thompson, 501 U.S. at 753, 111 S.Ct.at 2566.
Petitioner does not urge that either article 930.4 or article 930.8 is not regularly applied to the majority of similar claims.
Petitioner seeks to establish "cause" for his successive and untimely application for state habeas relief urging that the supplemental police report is "newly discovered" evidence which he did not receive until December 1993, several years after he filed his first application for state habeas relief and more than three years after his conviction became final. Petitioner's contention lacks merit.
Petitioner received the police report in December 1993, in response to his request, pursuant to the Louisiana Public Records Act (44 La. Rev. Stat. § 3), for information from the district attorney's file concerning his prosecution. Petitioner does not contend that access to that information was unavailable when he filed his first, timely application for state habeas review, nor does he attempt to explain his failure to request the information in the district attorney's file until late 1993. Because petitioner failed to provide any evidence of an impediment to obtaining the police report at issue prior to the filing of his first application for state habeas relief, he cannot establish "cause" for his procedural default.
Absent a showing of"cause" and "prejudice", petitioner is entitled to relief only if failing to consider his claim would result in a "fundamental miscarriage of justice." Amos v. Scott, 61 F.3d at 339. Petitioner contends that failure to review this claim will result in a fundamental miscarriage of justice because he is actually innocent of the aggravated rape. Additional facts are necessary in order to analyze this contention.
At trial, the rape victim described the men who participated in the armed robbery as follows:
The first guy with the gun was short, about my height. He was wearing a ski mask that only showed the eyes and the mouth and it was a green color with some rings around where the eyes and mouth were, red or orange or something. He had the sawed off shotgun. The second one who came in with him was taller, close to six feet, I would imagine, thin, slender and he was wearing blue jeans and a dark-colored windbreaker, I think navy or something and then the third person was close to the same height and build —
Q. As which one?
A. As the second one, tall.
Q. Around six feet, you would say?
A. Around there, yes. Also he had blue jeans and a dark jacket. I don't know what color it was.
Trial Transcript, pgs. 51-51. Mrs. McMillan testified that the rapist was the second intruder she described. Trial transcript, p. 40.
Approximately three weeks after the crime, detectives with the New Orleans Police Department interviewed Mr. And Mrs. McMillan and prepared a supplemental police report stating in pertinent part:
From the victims, a description of the perpetrators are as follows:
1. Negro male, 17-19 years, 5'5", muscular build, dark complexion, wearing a green ski mask trimmed around the eyes and mouth hole in red, and a light color zipper jacket.
2. Negro male, 21-22 years, 6', slim build, dark complexion, wearing a blue and white bandana, green jacket (possibly army fatigue or field jacket), new unfaded blue jeans.
3. Negro male, 17-20, approximately 6', appeared to be wearing some type of bandana over his face, no further description.
(Emphasis added). That police report was not disclosed to petitioner or his counsel prior to or during trial.
After petitioner's arrest, he gave police detectives a statement in which he admitted committing the armed robbery, stated that at the time of the crime he was wearing a navy blue windbreaker and blue jeans, and identified Tony Wright as the rapist.
This "newly discovered" evidence is not sufficient to invoke the fundamental miscarriage of justice exception. While the descriptions of the rapist are not identical in Mrs. McMillan's trial testimony and in the undisclosed supplemental police report, it is significant that the description in the police report is noted to be the description by the "victims", Mr. and Mrs. McMillan, not just Mrs. McMillan alone. Because the description in the supplemental police report was not based solely on what Mrs. McMillan told the detectives, it is less likely that the combined description would have effectively impeached Mrs. McMillan's testimony. Additionally, Mrs. McMillan's description at trial of the rapist's windbreaker was equivocal; she testified that he was wearing "a dark-colored windbreaker, I think navy or something. . . ." Trial Transcript, p. 51. The jury was already aware that Mrs. McMillan was not positive that the jacket was navy. Considering this knowledge it is unlikely that the description contained in the non-disclosed supplemental police report would have significantly impeached Mrs. McMillan's testimony and adversely impacted her credibility.
Additionally, and most importantly, Mrs. McMillan's description of the rapist was not the primary evidence supporting petitioner's conviction for aggravated rape. In a post-arrest statement Washington confessed to participating in the armed robbery and admitted that the rape occurred. Although he denied committing the rape and identified Tony Wright as the rapist, the jury was clearly entitled to disregard that self-serving portion of the statement, particularly considering the serological evidence.
There was also convincing serological evidence that petitioner, not Tony Wright, was the rapist. As the Louisiana Fourth Circuit Court of Appeals noted in rejecting petitioner's claim of insufficient evidence to support the aggravated rape-conviction on direct appeal:
chemical tests run by the police lab indicate that the defendant was therapist. The secretor test, which measures secretions of a person's blood type in his bodily fluids, showed that the victim, the defendant and Rusty St. Cyr were Group A secretors, whereas Tony Wright was a Group O non-secretor. When tested, a stain from the victim's slip was positive for spermatozoa and A secretor activity. Moreover, Harry O'Neal testified that the positive reaction was so strong that, in his opinion, it could only have been caused by seminal fluid (as opposed to vaginal fluid). This result would rule out the possibility that Tony Wright, a non-secretor, was the rapist.State v. Washington, No. KA-1812 (La.App. 4th Cir. December 10, 1984), p. 6. Considering the strength of the evidence against him, petitioner is not entitled to avail himself of the "fundamental miscarriage of justice" exception to overcome his failure to demonstrate "cause" for his procedural default.
INEFFECTIVE ASSISTANCE OF COUNSEL
Petitioner also contends that his aggravated rape conviction should be vacated because his counsel was ineffective in the following respects: failing to conduct a reasonable investigation, failing to discover the undisclosed supplemental police report, failing to cite cases to support the exclusion of the serological evidence, and failing to subpoena Rusty St. Cyr as a trial witness.
In Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1982), the Supreme Court established a two prong test for evaluating claims of ineffective counsel: a defendant seeking relief must demonstrate that counsel's performance was deficient and that the deficient performance prejudiced the defense. Id. With regard to the performance prong, "the defendant must show that counsel's representation fell below an objective standard of reasonableness." Id. at 668, 104 S.Ct. at 2064. There is a strong presumption that an attorney's performance "falls within the wide range of reasonable professional assistance." Id. at 689. 104S.Ct. at 2065. The defendant must overcome the presumption that the challenged action-might be considered to be sound trial strategy. Id.
In order to satisfy the prejudice requirement, "[t]he defendant must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome." Strickland v. Washington, 466 U.S. at 694, 104 S.Ct. at 2068. It is clear that even "professionally unreasonable" errors on the part of counsel do not warrant setting aside a conviction if the error had no effect on the proceeding. Larsen v. Maggio, 736 F.2d 215 (5th Cir. 1984).
The burden of demonstrating prejudice rests on the defendant. Strickland v. Washington, 466 U.S. at 693, 104 S.Ct. at 2067. The defendant must prove that an alleged error actually had an adverse effect on the defense. "[T]he petitioner must demonstrate that the `might have beens' [at trial] would have been important enough to affect the proceedings' reliability." Larsen v. Maggio, 736 F.2d at 218. If the defendant makes an insufficient showing on either component of the ineffective assistance of counsel inquiry, it is not necessary to examine the remaining prong of the test. Strickland v. Washington, 466 U.S. at 697, 104 S.Ct. 2069.
Petitioner asserts that his counsel was ineffective for failing to discover the supplemental police report. For the reasons stated in connection with the analysis of petitioner's contention that failure to consider his Brady claim would result in a fundamental miscarriage of justice, petitioner has failed to establish that he was prejudiced by his counsel's failure to discover the supplemental police report.
Petitioner also contends that his counsel was ineffective for failing to reasonably investigate "the circumstances and facts surrounding petitioner's case." Petitioner urges that had his counsel investigated the case "the facts would have revealed that petitioner's post-arrest statements were true and that he is innocence [sic] of the accused aggravated rape of Mrs. McMillan. " Petitioner does not specifically identify any "circumstances and facts", other than the supplemental police report, which his counsel should have discovered which would have either exculpated petitioner or inculpated Tony Wright. Claims of ineffective assistance of counsel must identify specific acts and omission of counsel; general statements and conclusory allegations are not sufficient. Knighton v. Maggio, 740 F.2d 1344. 1349-50 (5th Cir. 1984). Because petitioner failed to identify specific avenues of investigation which counsel failed to undertake, this claim lacks merit.
In a post-arrest statement, Washington denied having committed the rape and stated that Tony Wright raped Mrs. McMillan.
Petitioner further asserts that he received ineffective assistance of counsel because his counsel failed to gather case law supporting the exclusion of the serological evidence. Washington alleges that his counsel stated "[t]here were cases to support his objection to the introduction of scientific evidence, but he hasn't found them yet." There is no factual basis for petitioner's claim.
Prior to the beginning of the trial, petitioner's counsel orally moved "that the State be prohibited from introducing any scientific evidence of the testing of the saliva, of the blood as to the secretion of blood type." Trial Transcript, p. 3. In support of his motion counsel stated "I haven't found any cases in Louisiana, but there is [sic] cases in New York." Id. Thereafter the following colloquy occurred:
THE COURT: I am not interested in New York. . .
THE COURT: Do you have any Louisiana cases?
MR. DeAGANO: I don't see any Louisiana cases.
THE COURT: Your motion is denied. File it in writing and you file a written answer.
Trial transcript, pgs. 3-4. The transcript establishes that there is no factual basis for this claim. Petitioner cites no Louisiana cases to support the exclusion of the evidence in question.
Petitioner urges that his counsel was ineffective for failing to subpoena Rusty St. Cyr, petitioner's co-defendant, as a trial witness. Petitioner contends that St. Cyr's could have testified concerning his post-arrest statement in which he named Tony Wright as the rapist.
Assuming arguendo that St. Cyr agreed to testify and testified in accordance with his post-arrest statement that Wright was the rapist, petitioner, nevertheless cannot establish the requisite "prejudice" necessary to prevail on this claim. Considering the rape victim's testimony and the serological evidence excluding Wright as the rapist, there is no reasonable probability that the outcome of the trial would have been different if the jury had heard evidence that St. Cyr, a co-defendant, identified Tony Wright as the rapist.