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holding that Article 930.4(C) is "not 'adequate' so as to render an ineffective assistance of counsel claim procedurally barred . . . ."
Summary of this case from Thurman v. CainOpinion
Civil Action No. 02-0259, Section: "I"
August 29, 2002
ORDER AND REASONS
Petitioner, Cleveland Bell, filed this application for federal habeas corpus relief pursuant to 28 U.S.C. § 2254. Upon review of the record and the law, the Court has determined that the record is sufficient, that no evidentiary hearing is required, and that petitioner is not entitled to relief for the following reasons.
Pursuant to 28 U.S.C. § 2254(e)(2), whether to hold an evidentiary hearing is now a statutorily mandated determination. According to Section 2254(e)(2), the district court generally may hold an evidentiary hearing only when the petitioner has shown that either the claim relies on a new, retroactive rule of constitutional law that was previously unavailable ( 28 U.S.C. § 2254(e)(2)(A)(i)) or the claim relies on a factual basis that could not have been previously discovered through the exercise of due diligence ( 28 U.S.C. § 2254(e)(2)(A)(ii)); and the facts underlying the claim show by clear and convincing evidence that, but for the constitutional error, no reasonable jury would have convicted the petitioner ( 28 U.S.C. § 2254(e)(2)(B)).
Petitioner is a state court prisoner incarcerated at the Louisiana State Penitentiary, Angola, Louisiana. On May 16, 1997, petitioner was convicted of second degree murder in violation of La.Rev.Stat.Ann. § 14:30.1 (West 1995). On June 4, 1997, petitioner was sentenced to a term of life imprisonment at hard labor, without the benefit of parole, probation or suspension of sentence, with credit for time served. On October 14, 1998, petitioner's conviction and sentence were affirmed by the Louisiana Fifth Circuit Court of Appeal. Petitioner filed applications for writs of certiorari and review which were denied by the Louisiana Supreme Court on March 12, 1999.
State Rec., Vol. V of VI, May 16, 1997, transcript, p. 67; State Rec., Vol. II of VI, May 16, 1997, minute entry; State Rec., Vol. II of VI, jury verdict form.
State Rec., Vol. V of VI, June 4, 1997, transcript, p. 9; State Rec., Vol. II of VI, June 4, 1997, minute entry; State Rec., Vol. II of VI, commitment.
State v. Bell, 721 So.2d 38 (La.App. 5th Cir. 1999); State Rec., Vol. II of VI.
State v. Bell, 738 So.2d 1085 (La. 1999) (case no. 98-KO-2875); State v. Bell, 738 So.2d 1085 (La. 1999) (case no. 98-KO-2890); State Rec., Vol. II of VI.
On March 10, 2000, petitioner filed with the state district court an application for post-conviction relief which was denied on March 16, 2000. Petitioner also filed a motion to add a supplemental post-conviction claim regarding the admission of hearsay testimony which was denied on October 17, 2000. Petitioner filed with the Louisiana Fifth Circuit Court of Appeal an application for a writ of review. The intermediate appellate court denied that application on November 21, 2000. Petitioner then filed with the Louisiana Supreme Court an application for a writ of supervisory review which was denied on November 2, 2001.
State Rec., Vol. I of VI.
State Rec., Vol. II of VI, March 16, 2000, order.
The motion was originally filed on or about March 9, 2000, but apparently no ruling was issued by the state district court. See Bell v. State, No. 00-KH-1010 (La.App. 5th Cir. May 5, 2000); State Rec., Vol. II of VI. In response to a subsequent writ application regarding the supplemental claim, the Louisiana Fifth Circuit Court of Appeal suggested that "[r]ealtor may wish to re-file his supplemental application" with the state district court. Bell v. State, No. 00-KH-1520 (La.App. 5th Cir. Sept. 14, 2000). Petitioner refiled the supplemental claim on or about October 3, 2000.
State Rec., Vol. II of VI, October 17, 2000, order.
Bell v. State, No. 00-KH-1780 (La.App. 5th Cir. Nov. 21, 2000); State Rec., Vol. II of VI.
State ex rel. Bell v. State, 800 So.2d 872 (La. 2001); State Rec., Vol. II of VI.
On January 13, 2002, petitioner filed his application for federal habeas corpus relief. In support of his application, petitioner claims:
Rec. Doc. 2.
1. Petitioner's conviction was obtained through the use of perjured testimony;
2. Petitioner's conviction was obtained through prosecutorial misconduct;
3. A law enforcement officer's testimony obstructed justice;
4. Defense counsel was ineffective when he failed to call two impeachment witnesses;
5. Defense counsel was ineffective when he presented an unsupported defense; and
6. Petitioner's conviction was obtained through the use of hearsay testimony in violation of the Confrontation Clause of the United States Constitution.
This Court has rearranged the order of petitioner's claims for ease of analysis.
The state concedes that petitioner's federal application was timely filed. Additionally, the state does not argue that petitioner has failed to exhaust his state court remedies. Therefore, this Court will address the merits of petitioner's claims.
Rec. Doc. 6, p. 3.
"Under [the] AEDPA, [a] State shall not be deemed to have waived the exhaustion requirement or be estopped from reliance upon the requirement unless the State, through counsel, expressly waives the requirement." Mercadel v. Cain, 179 F.3d 271, 276 (5th Cir. 1999) (quotation marks omitted) (emphasis in original). There has been no express waiver in this case. However, 28 U.S.C. § 2254(b)(2) "allows a federal court, in its discretion, to deny habeas relief on the merits, regardless of whether the applicant has exhausted state remedies." Jones v. Jones, 163 F.3d 285, 299 (5th Cir. 1998) (emphasis in original). Accordingly, regardless of whether petitioner exhausted his state remedies, an issue this Court does not decide, the Court exercises its discretion to deny habeas relief on the merits.
Facts
The following testimony was offered at trial:
Juanita Hernandez testified that she was the victim's daughter. She also identified photographs of the victim and his possessions.
Hernandez's testimony is found at State Rec., Vol. III of VI, May 15, 1997, transcript, pp. 21-25.
Officer Brian Brocato testified that he was dispatched to the Keystone Motel in Jefferson Parish, Louisiana, at 4:41 a.m. on September 7, 1995. When he arrived, he found a white male who was barely conscious, bloody, and lying face down. Paramedics arrived at the scene. The victim told the paramedics that his money had been stolen.
Brocato's testimony is found at State Rec., Vol. III of VI, May IS, 1997, transcript, pp. 27-45.
Steven D. Brown testified that he was one of the paramedics responding to the crime scene at the Keystone Motel on September 7, 1995. Upon arrival, he determined that the victim had been stabbed and that he was near death. The victim died while being transported to the hospital. Brown did not recall the victim making any statements other than requesting help.
Brown's testimony is found at State Rec., Vol. III of VI, May 15, 1997, transcript, pp. 46-59.
Ora Smith Houston testified that she grew up in the same neighborhood as Cleveland Bell and that she had known him since she was approximately six years old. She spent September 6, 1995, with a friend from Tennessee. In the early morning of September 7, 1995, she saw Cleveland Bell at the home of his sister Merlene Bell. After Bell took a knife from his sister's kitchen, he and Houston went for a walk. Houston and Bell later parted company, and she was subsequently approached by Willie Chisholm, the father of her child. After a conversation, Chisholm left to use a telephone at the motel. Houston then heard screaming. She saw Bell "tussling" with another man who was trying to run toward the motel. The man broke free, but he collapsed before reaching the motel office. Bell approached Chisholm, said something, and they both began running away from the motel. Two men drove up in a sports car. One caught Chisholm, and the other unsuccessfully tried to catch Bell. Bell, with a knife in his hand, told Houston, "Run, Ora. I'd done broke this motherfucker up." Bell then ran away. Houston later went to Bell's sister's house and found Bell changing clothes. The sister threw away the clothes that Bell had been wearing and took the knife to her mother's house. Houston later gave a statement to the police, but she did not mention the clothing or the knife and she originally indicated that the victim was a woman. Houston admitted to having a criminal record.
Houston's testimony is found at State Rec., Vol. III of VI, May 15, 1997, transcript, pp. 60-134; State Rec., Vol. V of VI, May 15, 1997, transcript, pp. 135-45; and State Rec., Vol. V of VI, May 16, 1997, transcript, pp. 54-55.
Willie Chisholm, Jr., testified that he was using a telephone near the motel office when he heard an African-American male attempting to rob the victim. The perpetrator then stabbed the victim and fled after telling Chisholm, "You better get up, Juney Boy." Chisholm did not know the perpetrator's identity. "Juney Boy" was Chisholm's childhood nickname, a fact known by Bell.
Chisholm's testimony is found at State Rec., Vol. V of VI, May 15, 1997, transcript, pp. 148-82.
David Hislop testified that on September 7, 1995, he and a friend were driving when a man staggered into the road screaming that he had been stabbed and robbed. Hislop and his friend gave chase to the two men they saw fleeing. They tried to "clip" one of the men with their car, but both men escaped.
Hislop's testimony is found at State Rec., Vol. V of VI, May 15, 1997, transcript, pp. 183-96.
Officer James Wright testified that he was a homicide detective assigned to the investigation. Initially both Bell and Chisholm were suspects. No physical evidence was found linking Bell or anyone else to the crime. Wright took a statement from Ora Houston who identified Bell as a suspect. As previously stated, Houston indicated that she did not see Bell with a knife and that the victim was female. She did not mention Bell changing clothes.
Wright's testimony is found at State Rec., Vol. V of VI, May 15, 1997, transcript, pp. 198-229.
Dr. Susan M. Garcia testified that she performed the victim's autopsy. Dr. Garcia determined that the victim sustained two stab wounds to the back, one of which was fatal.
Garcia's testimony is found at State Rec., Vol. V of VI, May 16, 1997, transcript, pp. 13-24.
Keith Lobrono testified. He is a private investigator who identified several photographs he had taken of the motel and the surrounding area.
Lobrono's testimony is found at State Rec., Vol. V of VI, May 16, 1997, transcript, pp. 29-52.
Standard of Review
The Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA") comprehensively overhauled federal habeas corpus legislation, including 28 U.S.C. § 2254. Amended subsections 2254(d)(1) and (2) contain revised standards of review for questions of law, questions of fact, and mixed questions of law and fact. Provided that the state court adjudicated the claim on the merits, pure questions of law and mixed questions of law and fact are reviewed under § 2254(d)(1) and questions of fact are reviewed under § 2254(d)(2). Hill v. Johnson, 210 F.3d 481, 485 (5th Cir. 2000), cert. denied, 532 U.S. 1039, 121 S.Ct. 2001, 149 L.Ed.2d 1004 (2001).
As to questions of law and mixed questions of law and fact, a federal court must defer to the state court's decision unless it "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). The United States Supreme Court recently noted:
§ 2254(d)(1)'s "contrary to" and "unreasonable application" clauses have independent meaning. A federal habeas court may issue the writ under the "contrary to" clause if the state court applies a rule different from the governing law set forth in our cases, or if it decides a case differently than we have done on a set of materially indistinguishable facts. The court may grant relief under the "unreasonable application" clause if the state court correctly identifies the governing legal principle from our decisions but unreasonably applies it to the facts of the particular case. The focus of the latter inquiry is on whether the state court's application of clearly established federal law is objectively unreasonable, and we stressed in Williams[ v. Taylor, 529 U.S. 362, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000)] that an unreasonable application is different from an incorrect one.
Bell v. Cone, 535 U.S. ___, 122 S.Ct. 1843, 1850, 152 L.Ed.2d 914 (2002) (citations omitted).
As to questions of fact, factual findings are presumed to be correct and a federal court will give deference to the state court's decision unless it "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)(2); see also 28 U.S.C. § 2254(e)(1); Hill, 210 F.3d at 485.
Perjured Testimony, Prosecutorial Misconduct and Obstruction of Justice Claims
The state notes that the state court rejected the following three claims based on a procedural default: (1) petitioner's conviction was obtained through the use of perjured testimony; (2) petitioners s conviction was obtained through prosecutorial misconduct; and (3) a law enforcement officer's testimony obstructed justice. The trial court held that those errors "were known to the defendant at the time of trial and are appealable issues which [are] waived if not raised on appeal." The trial court's ruling is apparently based on La.C.Cr.P. art. 930.4(C) (West 1997) which provides: "If the application alleges a claim which the petitioner raised in the trial court and inexcusably failed to pursue on appeal, the court may deny relief." Based on the trial court's ruling, the state argues that the three claims are procedurally barred.
State Rec., Vol. II of VI, March 16, 2000, order.
Rec. Doc. 8, p. 5.
The United States Fifth Circuit Court of Appeals has concisely set forth the standards to be used when analyzing whether a claim is procedurally barred:
A claim that a state has withheld a federal right from a person in its custody may not be reviewed by a federal court if the last state court to consider that claim expressly relied on a state ground for denial of relief that is both independent of the merits of the federal claim and an adequate basis for the court's decision. To satisfy the "independent" and "adequate" requirements, the dismissal must "clearly and expressly" indicate that it rests on state grounds which bar relief, and the bar must be strictly or regularly followed by state courts, and applied to the majority of similar claims. This rule applies to state court judgments on both substantive and procedural grounds. Where there has been one reasoned state judgment rejecting a federal claim, later unexplained orders upholding that judgment or rejecting the same claim are presumed to rest upon the same ground.
Finley v. Johnson, 243 F.3d 215, 218 (5th Cir. 2001) (citations omitted). "When the state court has relied on an independent and adequate state procedural rule, federal habeas review is barred unless the petitioner demonstrates either cause and prejudice or that a failure to address the claim will result in a fundamental miscarriage of justice." Hughes v. Johnson, 191 F.3d 607, 614 (5th Cir. 1999).
Because it is indisputable that a denial pursuant to La.C.Cr.P. art. 930.4(C) is a state procedural rule "independent of the merits of the federal claim," the next question is whether it is "adequate." "The [procedural bar] doctrine presumes that a state procedural ground is adequate and, ordinarily, the burden is on the habeas petitioner to demonstrate otherwise." Hughes, 191 F.3d at 614. In order to establish that a state procedural default is not "adequate," the "petitioner bears the burden of showing that the state did not strictly or regularly follow [the] procedural bar around the time of his direct appeal." Stokes v. Anderson, 123 F.3d 858, 860 (5th Cir. 1997). Here, petitioner has made no argument that La.C.Cr.P. art. 930.4(C) was not strictly or regularly followed.
Out of an abundance of caution, however, this Court has attempted to glean the consistency with which La.C.Cr.P. art. 930.4(C) is applied in Louisiana state courts by reviewing reported decisions containing a citation to the provision. A search of reported decisions revealed six cases referencing the provision and in five of those cases the restriction was applied. Roy v. Cain, 792 So.2d 3 (La. 2001); State ex rel. Brister v. State, 775 So.2d 1079 (La. 2000) (Johnson, J., concurring); State ex rel. Baylis v. Maggio, 464 So.2d 1370 (La. 1985); State v. Gaines, 701 So.2d 688 (La.App. 4th Cir. 1997), writ denied, 717 So.2d 1160 (La. 1998); State v. Ballom, 520 So.2d 476 (La.App. 4th Cir.), writ granted on other grounds, 523 So.2d 860 (La. 1988). That consistency, as well as petitioner's failure to meet his burden and demonstrate that the provision is not strictly or regularly followed, leads this Court to conclude that La.C.Cr.P. art. 930.4(C) serves as a sufficiently "adequate" state procedural rule to support the state court's decision.
In one case, State v. Butler, 405 So.2d 836 (La. 1981), the restriction was not applied. See id. at 841 (Lemmon, J., concurring). However, an occasional "act of grace" in entertaining the merits of a claim that might be viewed as procedurally defaulted does not constitute a failure to strictly or regularly follow the rule at issue. See Hogue v. Johnson, 131 F.3d 466, 487-88 (5th Cir. 1997).
Because the state court rejected the three claims pursuant to La.C.Cr.P. art. 930.4(C), and because that article is an independent and adequate state procedural rule, "federal habeas review is barred unless the petitioner demonstrates either cause and prejudice or that a failure to address the claim will result in a fundamental miscarriage of justice." Hughes, 191 F.3d at 614.
"To establish cause for a procedural default, there must be something external to the petitioner, something that cannot fairly be attributed to him." Johnson v. Puckett, 176 F.3d 809, 816 (5th Cir. 1999) (quotation marks omitted) (emphasis in original). Therefore, petitioner must show that some objective factor, external to the defense, prevented him or his defense counsel from raising the claim at issue in a procedurally proper manner. Romero v. Collins, 961 F.2d 1181, 1183 (5th Cir. 1992). Objective factors that can constitute cause include interference by officials that makes compliance with the state procedural rule impracticable, a showing that the factual or legal basis for the claim was not reasonably available to counsel, and ineffective assistance of counsel. Id. Because petitioner has made no attempt whatsoever to establish why his claims were not presented in a procedurally proper manner, he has failed to establish cause for the procedural default. "Absent a showing of cause, it is not necessary for the court to consider whether there is actual prejudice." Martin v. Maxey, 98 F.3d 844, 849 (5th Cir. 1996).
The three claims are procedurally barred unless petitioner can show that a fundamental miscarriage of justice would result. In order to establish a "fundamental miscarriage of justice," petitioner must "make a persuasive showing that he is actually innocent of the charges against him. Essentially, the petitioner must show that, as a factual matter, he did not commit the crime for which he was convicted." Finley, 243 F.3d at 220 (citations omitted). The United States Fifth Circuit Court of Appeals has held:
To demonstrate actual innocence, it is necessary that the petitioner show that it is more likely than not that no reasonable juror would have found petitioner guilty beyond a reasonable doubt . . . in light of all of the evidence, including that alleged to have been illegally admitted (but with due regard to any unreliability of it) and evidence tenably claimed to have been wrongfully excluded or to have become available only after trial.
Lucas v. Johnson, 132 F.3d 1069, 1077 (5th Cir. 1998) (quotation marks and citations omitted). Petitioner has not demonstrated that any miscarriage of justice would result from application of the procedural bar to the three claims at issue.
Accordingly, because the three claims were rejected by the state court based on an independent and adequate state procedural rule, and because petitioner has failed to make the requisite showings to overcome the procedural bar, this Court is barred from considering those three claims in this federal habeas corpus proceeding.
Ineffective Assistance of Counsel Claims
Petitioner claims that his trial counsel was ineffective when he failed to interview and subpoena two potential impeachment witnesses and when he presented an unsupported defense. In Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), the United States Supreme Court established a two-prong test for evaluating claims of ineffective assistance of counsel. A convicted defendant seeking relief must demonstrate that counsel's performance was deficient and that the deficient performance prejudiced his defense. See Strickland, 466 U.S. at 697, 104 S.Ct. at 2069. If this Court finds that petitioner has made an insufficient showing as to either of those two prongs of inquiry, i.e. deficient performance or actual prejudice, it may dispose of the claim without addressing the other prong. Id.
Counsel's performance is deficient if it is "objectively unreasonable." United States v. Acklen, 47 F.3d 739, 742 (5th Cir. 1995). "[I]t is necessary to `judge . . . counsel's challenged conduct on the facts of the particular case, viewed as of the time of counsel's conduct.'" Lockhart v. Fretwell, 506 U.S. 364, 371, 113 S.Ct. 838, 844, 122 L.Ed.2d 180 (1993) (quoting Strickland, 466 U.S. at 690, 104 S.Ct. at 2066). Analysis of counsel's performance must take into account the reasonableness of counsel's actions in light of all the circumstances. See Strickland, 466 U.S. at 689, 104 S.Ct. at 2065. Petitioner carries the burden of proof and must overcome a strong presumption that the conduct of his counsel falls within a wide range of reasonable representation. See Crockett v. McCotter, 796 F.2d 787, 791 (5th Cir. 1986); Mattheson v. King, 751 F.2d 1432, 1441 (5th Cir. 1985). Petitioner must prove that the conduct of counsel fell below the constitutional minimum guaranteed by the Sixth Amendment. See Styron v. Johnson, 262 F.3d 438, 450 (5th Cir. 2001), cert. denied, ___ U.S. ___, 122 S.Ct. 1175, 152 L.Ed.2d 118 (2002).
In order to prove prejudice, 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." Strickland, 466 U.S. at 694, 104 S.Ct. at 2068. In this context, a reasonable probability is "a probability sufficient to undermine confidence in the outcome." Id. In making a determination as to whether prejudice occurred, courts must review the record to determine "the relative role that the alleged trial errors played in the total context of [the] trial." Crockett v. McCotter, 796 F.2d 787, 793 (5th Cir. 1986).
A claim of ineffective assistance of counsel is a mixed question of law and fact. See Pratt v. Cain, 142 F.3d 226, 230 (5th Cir. 1998). Therefore, this Court must defer to the state court unless its decision "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).
Petitioner's first ineffective assistance claim is premised on a contention that counsel failed to interview and subpoena two witnesses to impeach Houston. The state district court rejected that claim, holding:
Turning to . . . the ineffective assistance issue, Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984) provides the test for ineffective assistance of counsel. In order for a claim of ineffective assistance of counsel to prevail, the petitioner must show the counsel made errors so serious that counsel was not functioning as the counsel guaranteed by the Sixth Amendment and that the errors were so serious as to deprive petitioner of a fair trial.
The test to be applied in ineffective assistance of counsel claims is that of Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); State v. Sanders, 93-0001 (La. 11/30/94), 648 So.2d 1272, cert denied 116 S.Ct. 2504, 135 L.Ed.2d 194, which provides for the two-pronged test:
1. a deficient performance by counsel; and
2. the deficient performance prejudiced the defense so as to deprive the defendant of a fair trial.
A review of the record in the instant case reveals that neither of the prongs of the Strickland test were met. Defendant's counsel not only did not perform deficiently, but rather performed with a high standard of professional excellence. Additionally, the defendant was not prejudiced in his defense. Thus under the test of Strickland, defendant's claim of ineffective assistance of counsel is without merit.
State Rec., Vol. II of VI, March 16, 2000, order.
In support of the claim, petitioner argues that defense counsel should have interviewed and subpoenaed the friend with whom Houston had spent the day prior to the murder. Petitioner contends that the unidentified friend could have established that Houston was not at the scene of the crime. Additionally, petitioner contends that defense counsel should also have interviewed and subpoenaed Merlene Bell, petitioner's sister, who would have refuted Houston's statement that Houston and petitioner met at Merlene's home prior to the murder.
"[C]omplaints of uncalled witnesses are not favored in federal habeas corpus review because allegations of what the witness would have testified are largely speculative." Evans v. Cockrell, 285 F.3d 370, 377 (5th Cir. 2002) (citing Sayre v. Anderson, 238 F.3d 631, 635-36 (5th Cir. 2001)). To show the prejudice required to support an ineffective assistance claim premised on the failure to call a witness, a petitioner "`must show not only that [the] testimony would have been favorable, but also that the witness would have testified at trial.'" Evans, 285 F.3d at 377 (quoting Alexander v. McCotter, 775 F.2d 595, 602 (5th Cir. 1985)).
Petitioner has presented nothing but bald assertions in support of his claim. He has not provided affidavits from the potential witnesses or any other corroboration that they would have testified in a manner consistent with his version of the facts or, for that matter, that they would have testified at trial at all. Petitioner has, therefore, failed to establish either that counsel was deficient or that prejudice resulted from the failure to interview and subpoena the potential witnesses. Petitioner has failed to demonstrate that the state court decision denying his ineffective assistance of counsel claim was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States. Accordingly, applying the AEDPA's deferential standard, this Court rejects petitioner's claim that counsel was ineffective because he failed to interview and subpoena two witnesses.
Petitioner's second ineffective assistance of counsel claim is that counsel was ineffective when he failed to secure other evidence to support petitioner's defense that Houston was testifying falsely. The state argues that the claim regarding an "unsupported defense" is procedurally barred. The trial court's order does appear to have addressed only the merits of petitioner's claim that his counsel was ineffective when he failed to call the two impeachment witnesses. As to petitioner's claim that his counsel presented an unsupported defense, the trial court appears to have held that petitioner waived that claim when he failed to raise it on appeal. Therefore, the trial court's latter ruling was apparently based on La.C.Cr.P. art. 930.4(C) (West 1997).
Rec. Doc. 6, p. 7.
State Rec., Vol. II of VI, March 16, 2000, order.
As previously noted, La.C.Cr.P. art. 930.4(C) (West 1997) provides: "If the application alleges a claim which the petitioner raised in the trial court and inexcusably failed to pursue on appeal, the court may deny relief."
This Court, however, declines to find that claim to be procedurally barred. As noted earlier in this opinion, a claim is procedurally barred only if the state procedural ground is "adequate," i.e. that it was strictly or regularly followed. Previously in this opinion, this Court noted that La.C.Cr.P. art. 930.4(C) is strictly and regularly followed; however, that general rule is not true in the context of an ineffective assistance of counsel claim. Rather, in that limited context, the opposite is true. The Louisiana Supreme Court has noted, "The appropriate avenue for asserting a claim for ineffective assistance of counsel is through postconviction relief, not by direct appeal." State v. Truitt, 500 So.2d 355, 359 (La. 1987); see also State v. Watson, 817 So.2d 81, 84 (La. 2002) ("Generally, the preference for addressing claims of ineffective assistance of counsel is a post-conviction proceeding in the trial court, not on appeal."). Therefore, to the extent the state district court intentionally denied petitioner's claim pursuant to La.C.Cr.P. art. 930.4(C), this Court finds that, in that limited context, La.C.Cr.P. art. 930.4(C) is not "adequate" so as to render an ineffective assistance of counsel claim procedurally barred in a federal habeas corpus proceeding. Accordingly, this Court will address the merits of petitioner's claim.
As noted, plaintiff claims that counsel was ineffective when he failed to secure other evidence to support petitioner's defense that Houston was testifying falsely. Defense counsel cross-examined Houston vigorously regarding her potential motive for lying, i.e. to exonerate Willie Chisholm, the father of her child. She was questioned in great detail about inconsistencies in her prior statements. She was also questioned at length about her character and criminal record. Petitioner has failed to show that there was any additional evidence available to serve as a basis for impeaching Houston's testimony. Therefore, petitioner has failed to establish either that counsel was deficient or that any prejudice resulted. Accordingly, petitioner's claim that his counsel was ineffective when he presented an unsupported defense is likewise rejected.
Confrontation Clause Claim
Petitioner claims that the prosecution used hearsay testimony to obtain his conviction in violation of the Confrontation Clause of the Sixth Amendment. His claim challenges, as inadmissible hearsay, Ora Houston's testimony that petitioner's sister told petitioner not to take a knife from her house and that his sister-in-law offered Houston $1,000 for her testimony.
Petitioner asserted his claim regarding that testimony in his motion for leave to supplement his state application for post-conviction relief. The state district court denied the claim, holding:
State Rec., Vol. II of VI.
Defendant claims that the trial court erred by admitting hearsay testimony from the state's witness, Ora Houston. Upon review, the Court finds the defendant is not entitled to the relief sought. This claim was known to the defendant at the time of trial and is an appealable issue. If not raised on appeal, then the issue is deemed waived. Also, part of defendant's claim was already reviewed by the 5th Circuit Court of Appeal in case number 97-KA-896 on October 14, 1998.
The referenced appellate court ruling in case number 97-KA-896 addressed the statement regarding the $1,000 offer, but it did not address the statement regarding the knife. Therefore, it appears that the state district court denied that part of petitioner's claim regarding the statement about the knife pursuant to La.C.Cr.P. art. 930.4(C) (West 1997) and denied that part of the claim regarding the $1,000 offer pursuant to La.C.Cr.P. art. 930.4(A) (West 1997).
In case number 97-KA-896, the Louisiana Fifth Circuit Court of Appeal held:
Defendant-appellant next contends that the trial court abused its discretion in refusing to grant a mistrial following improper testimony of a State witness that the defendant's sister-in-law, Ora Houston, had offered her $1,000.00 to testify favorably on behalf of the defendant.
We are reminded that, when a remark or comment, which is irrelevant or immaterial and of such a nature that it might create prejudice against the defendant, the court, upon the request of the defendant or the State, shall promptly admonish the jury to disregard the remark or comment. La. Code Crim. P. art. 771. On the motion of the defendant, the trial court has the discretion to grant a mistrial if it believes an admonition is insufficient to assure the defendant a fair trial. Id. A mistrial is warranted only if the comment or remark results in substantial prejudice. State v. Narcisse, 426 So.2d 118 (La. 1983), cert. denied, 464 U.S. 865, 104 S.Ct. 202, 78 L.Ed.2d 176 (1983). The trial court's ruling on a motion for mistrial will not be disturbed absent an abuse of discretion. Id.
We find that the trial court was within its discretion in denying defendant-appellant's motion for mistrial because the record clearly shows that the court immediately admonished the jurors to disregard the statements in question. Furthermore, the defendant-appellant has failed to establish any prejudice resulting from the statements. Accordingly, this assignment of error lacks merit.
State v. Bell, 721 So.2d 38, 40-41 (La.App. 5th Cir. 1999); State Rec., Vol. II of VI. It appears that the intermediate appellate court's phrasing of the claim is slightly erroneous. The claim concerns the fact that at trial Ora Houston testified that she was offered $1,000 by petitioner's sister-in-law. See State Rec., Vol. III of VI, May 15, 1997, transcript, p. 88.
As noted, La.C.Cr.P. art. 930.4(C) (West 1997) provides, "If the application alleges a claim which the petitioner raised in the trial court and inexcusably failed to pursue on appeal, the court may deny relief."
La.C.Cr.P. art. 930.4(A) (West 1997) provides, "Unless required in the interest of justice, any claim for relief which was fully litigated in an appeal from the proceedings leading to the judgment of conviction and sentence shall not be considered."
The state argues that the part of the claim regarding the testimony about the knife is procedurally barred. As noted previously in this opinion, a claim denied by the state courts pursuant to La.C.Cr.P. art. 930.4(C) generally is procedurally barred unless a petitioner demonstrates either cause and prejudice or that a fundamental miscarriage of justice will result if the claim is not addressed. Petitioner has made no attempt to establish cause for his failure to present the claim in a procedurally proper manner and he has failed to demonstrate that a miscarriage of justice would result if the claim is procedurally barred. Because he has not made the requisite showings, that part of petitioner's Confrontation Claim regarding the testimony about the knife is procedurally barred.
Rec. Doc. 8, p. 4.
The State acknowledges, however, that the part of petitioner's Confrontation Claim regarding the testimony about the $1,000 is not procedurally barred. Accordingly, this Court will address the merits of that claim.
Rec. Doc. 8, p. 4. The state is correct. A claim denied pursuant to La.C.Cr.P. art. 930.4(A) is not procedurally barred in a federal habeas corpus proceeding. Bennett v. Whitley, 41 F.3d 1581, 1583 (5th Cir. 1994).
The testimony regarding the $1,000 offer was as follows:
Q. [Mr. McNamara, the prosecutor]: Have you been offered anything for your testimony today by anybody?
A. [Ora Houston]: Yes.
Q. What was offered to you?
A. A thousand dollars.
Q. By whom?
State Rec., Vol. III of VI, May 15, 1997, transcript, p. 88.
On the basis of that testimony, defense counsel moved for a mistrial which was denied. However, the trial judge admonished the jury to disregard the hearsay statement.
State Rec., Vol. III of VI, May 15, 1997, transcript, p. 90.
This Court will defer to the state court's determination that the statement was indeed hearsay pursuant to Louisiana law. "What is or is not hearsay evidence in a state court trial is governed by state law." Gochicoa v. Johnson, 118 F.3d 440, 445 (5th Cir. 1997). The state district court ruled that the statement was hearsay. See State Rec., Vol. III of VI, May 15, 1997, transcript, pp. 88-91.
State Rec., Vol. III of VI, May 15, 1997, transcript, p. 91.
As noted, petitioner argues that the hearsay statements violated his rights under the Sixth Amendment's Confrontation Clause. The United States Fifth Circuit Court of Appeals has held:
Although the protections of the Confrontation Clause and the hearsay rule overlap, they are not co-extensive; the [Confrontation] Clause does not necessarily prohibit the admission of hearsay statements against a criminal defendant, even though the admission of such statements might be thought to violate the literal terms of the Clause. The wrongful admission of hearsay evidence violates the Confrontation Clause only when the evidence was a crucial, critical or highly significant factor in the framework of the whole trial. In making this determination, we consider five general factors derived from the Supreme Court's opinion in Dutton v. Evans, 400 U.S. 74, 87, 91 S.Ct. 210, 219, 27 L.Ed.2d 213 (1970):
(1) whether the hearsay evidence was crucial or devastating;
(2) whether prosecutors misused a confession or otherwise engaged in misconduct;
(3) whether a joint trial or the wholesale denial of cross-examination was involved;
(4) whether the most important prosecution witness, as well as other prosecution witnesses, was available for cross-examination; and
(5) the degree to which the hearsay evidence is supported by indicia of [its] reliability.
Gochicoa v. Johnson, 118 F.3d 440, 446 (5th Cir. 1997) (quotation marks and citations omitted). The Fifth Circuit continued:
The determination of whether evidence is "crucial" or "devastating" . . . recognizes that the erroneous admission of unreliable hearsay evidence may nonetheless be harmless in light of other evidence at trial; by examining whether hearsay was "crucial" or "devastating," the court seeks to determine whether the impermissible hearsay was sufficiently damaging to the defense to warrant reversal.
Id. at 447. The Fifth Circuit has similarly noted:
[V]iolations of the Confrontation Clause are still subject to harmless error analysis. . . . To determine whether the error was harmless, we consider the importance of the witness' testimony in the prosecution's case, whether the testimony was cumulative, the presence or absence of evidence corroborating or contradicting the testimony of the witness on material points, the extent of cross-examination otherwise permitted, and of course, the overall strength of the prosecution's case.
Hafdahl v. Johnson, 251 F.3d 528, 539-40 (5th Cir.) (quotation marks omitted), cert. denied, ___ U.S. ___, 122 S.Ct. 629, 151 L.Ed.2d 550 (2001).
This Court notes that the hearsay statement at issue was ruled inadmissible and the trial judge admonished the jury to disregard it. There is no reason to believe that the jury disregarded the admonition. Moreover, in any event, the statement was hardly "crucial" or "devastating" in light of the eyewitness testimony of Ora Houston, who like other prosecution witnesses, was subjected to rigorous cross-examination. Further, even if the trial court erred in not granting a mistrial as petitioner's counsel requested, the testimony was harmless.
State Rec., Vol. III of VI, May 15, 1997, transcript, p. 91.
State Rec., Vol. III of VI, May 15, 1997, transcript, p. 90.
For the foregoing reasons, petitioner's application for federal habeas corpus relief is DENIED.