Opinion
Civil Action 24-0556
07-09-2024
RYK ANTHONY FRICKEY v. E. DUSTIN BICKHAM, WARDEN
SECTION “E” (2)
REPORT AND RECOMMENDATION
DONNA PHILLIPS CURRAULT UNITED STATES MAGISTRATE JUDGE
Before the court is petitioner Ryk Anthony Frickey's petition for a writ of habeas corpus under 28 U.S.C. § 2254 (ECF No. 1) which was referred to a United States Magistrate Judge to conduct hearings, including an evidentiary hearing, if necessary, and to submit proposed findings and recommendations for disposition pursuant to 28 U.S.C. §§ 636(b)(1)(B) and (C) and, as applicable, Rule 8(b) of the Rules Governing Section 2254 Cases. Upon review of the entire record, I have determined that a federal evidentiary hearing is unnecessary. For the following reasons, I recommend that the petition for habeas corpus relief be DISMISSED WITHOUT PREJUDICE.
The state court record was electronically filed by the State at ECF Nos. 10-19. A district court may hold an evidentiary hearing only when the petitioner shows 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 by exercise of due diligence (id. § 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. Id. § 2254(e)(2)(B).
I. FACTUAL AND PROCEDURAL BACKGROUND
On September 17, 2020, St. Charles Parish filed an amended bill of information charging Frickey with aggravated criminal damage to property by discharge of a firearm into a residence at 201 Evelyn Drive in Luling, Louisiana. The Louisiana Fifth Circuit Court of Appeal summarized the testimony and facts established at trial as follows in relevant part:
ECF No. 10, at 24, Amended Bill of Information, 9/17/20. The original bill of information filed June 17, 2020, did not include the firearm enhancement language. Id. at 2.
Testimony of Brandon Breaux
Brandon Breaux, the victim in this case, testified at trial that defendant is his first cousin and they grew up together, living two houses apart, in Des Allemands near Twin Bridge Road. Approximately eleven years ago, the victim moved to 201 Evelyn Drive. He testified that things went “south” between him and defendant in 2011 or 2012, and that there has been trouble between them ever since. He admitted that in 2013, he testified before a federal judge that he has held a grudge against defendant for approximately the last five years.
The victim testified that he has “50/50 custody” of his children and that his daughters, who were eleven and nineteen years old at the time of trial, stay with him on Mondays, Wednesdays, and every other Friday, Saturday, and Sunday. On the date of the incident at issue, the victim's girlfriend, Jessica St. Amant, lived with him, as did her son on a split schedule.
The victim testified that on May 1, 2020, he arrived home at approximately 7:00 p.m. following a day spent fishing. Ms. St. Amant was home with him, but his children were staying with his mother. At approximately 10:45 p.m., after using the restroom, the victim thought he heard a vehicle stop. Realizing he had not locked his vehicle, he approached the French doors in his home, turned on the exterior lights, and peered out of the window, but he did not see anyone in his driveway or his neighbor's driveway. At the same time, his dogs also approached the French doors to be let out.
The victim testified that he exited the house with the dogs and proceeded towards his vehicle parked in the driveway to lock it before going to bed. While one dog continued into the yard, the other dog stopped and “just stood there,” refusing to move. When the victim looked to see what had the dog's attention, he saw defendant “above the white vinyl fence in the back of the house,” standing in the bed of a white Chevrolet pickup truck holding a long-barreled gun pointed towards the back of his house. The victim described the fence as approximately six feet tall. According to the victim, defendant did not speak and “was just more like a statue, just froze in that position while looking down the barrel of the gun.” Later, the victim identified defendant's truck in photographs.
The victim described defendant as wearing a white t-shirt and recalls that a streetlight was on. He explained that he knew it was defendant because he had known defendant his entire life and that defendant has “pretty distinct facial features.” The victim stated that, in a panic, he went to his vehicle where he had a firearm, but realized that if he opened the door, the vehicle lights would turn on. Through the vehicle window, the victim saw that defendant had not moved. Crouching behind his vehicle, the victim called 9-1-1.
After placing the 9-1-1 call, the victim retreated into his home, called the dogs inside, and locked the door. He alerted Ms. St. Amant, who was sleeping on the couch, that someone was outside pointing a gun at the house and instructed her to go to an interior room. He stated that as Ms. St. Amant crossed the threshold of the bathroom, “a shot was fired” through the door. While still speaking with 9-11, a single shot into the home could be heard. During the 9-1-1 call - which
pursuant to a pretrial stipulation was played for the jury - the victim told the operator that he had previously told others that defendant threatened to kill him.
Once law enforcement arrived on the scene, the victim opened the door. He explained that he saw glass everywhere and “holes in the wall where the shotgun pellets had entered the wall.” There were also holes in the laundry room wall and into the refrigerator located in the laundry room. The victim testified that at the end of the hallway, he saw what he believed to be the wad from the shotgun shell. He picked it up and gave it to a deputy. The victim described tire marks in the drainage ditch where defendant's truck was parked, which he did not remember seeing earlier in the day.
In addition to the physical damage to his property, the victim testified that the incident “had a great deal of negative effect” on his life, that he feels constantly threatened, and that it has negatively affected his relationships. He explained that his girlfriend no longer felt comfortable in his home and purchased her own residence. The victim stated that the mother of his children also no longer felt comfortable with his children being in the home because she felt “there was no safety net or nothing to stop it from happening again.”
State v. Frickey, 360 So.3d 19, 29-30 (La.App. 5 Cir. 2023); ECF No. 10, at 228-30, 5th Cir. Opinion, 22-KA-261, at 3-5, 3/1/23.
Frickey went to trial before a jury on April 20 through 22, 2021. The jury found him guilty as charged. At a July 20, 2021, hearing, the state trial court denied Frickey's motions for appointment of a sanity commission and for a new trial. At the same hearing, after waiver of legal delays, the state trial court sentenced Frickey to serve the mandatory minimum sentence of 10 years in prison without benefit of parole, probation, or suspension of sentence. The State thereafter entered a nolle prosequi as to the charges pending in two other cases for domestic abuse battery, simple criminal damage to property under $1000, and misdemeanor discharge of weapons. The state trial court later denied Frickey's motion to reconsider the sentence.
ECF No. 11-2, at 85-434, Trial Tr., 4/20/21; id. at 435-521, Trial Tr., 4/21/21; ECF No. 11-3, at 1-202, Trial Tr., 4/21/21; id. at 203-412, Trial Tr., 4/22/21.
ECF No. 10, at 162, Verdict of the Jury, 4/22/21.
ECF No. 11-3, at 462, 473, Sentencing Tr., 7/20/21; ECF No. 10, at 113, Motion for New Trial, 7/2/21; id., at 132, Motion for Appointment of Sanity Commission, 7/14/21.
ECF No. 11-3, at 481, Sentencing Tr., 7/20/21; ECF No. 10, at 188, Sentencing Commitment Order, 7/20/21.
ECF No. 11-3, at 482, Sentencing Tr., 7/20/21.
ECF No. 10, at 191, Trial Court Order, 8/3/21; id. at 195-197, Reasons for Judgment, 8/4/21; id. at 189-90, Motion to Reconsider Sentence, 7/27/21.
On direct appeal to the Louisiana Fifth Circuit, Frickey's counsel asserted claims that: (1) the evidence was insufficient to support the jury verdict; (2) Frickey was denied the right to counsel of his choice; (3) the sentence was excessive; (4) the trial court erred by denying Frickey's request to introduce evidence a deputy's prior behavior towards him, (5) the trial court erred by admitting Rule 404(b) evidence, (6) the trial court erred by failing to appoint a sanity commission, (7) the trial court erred by refusing to provide the defense a copy of the presentence investigation report; and (8) an errors patent review was requested. On March 1, 2023, the Louisiana Fifth Circuit affirmed Frickey's conviction and sentence finding no merit in the claims asserted.
Frickey, 360 So.3d at 29; ECF No. 10, at 228, 5th Cir. Opinion, 22-KA-261, at 3, 3/1/23; ECF No. 14, at 35-74, Appellate Brief, dated 7/25/22.
Frickey, 360 So.3d at 34-55; ECF No. 10, at 237-73, 5th Cir. Opinion, 22-KA-261, 3/1/23. The court did note that the state trial court failed to properly advise Frickey of his post-conviction rights, which was corrected by the appellate court's order. Frickey, 360 So.3d at 55; ECF No. 10, at 273, 5th Cir. Opinion, 22-KA-261, 3/1/23.
The Louisiana Supreme Court denied Frickey's subsequent counsel-filed writ application without stated reasons on November 8, 2023. Frickey did not file an application for writ of certiorari with the United States Supreme Court within 90 days, and his conviction and sentence became final on February 6, 2024.
State v. Frickey, 373 So.3d 59 (La. Nov. 8, 2023); ECF No. 10, at 288, La. Sup. Ct. Order, 2023-K-468, 11/8/23; ECF No. 13, at 1-30, La. Sup. Ct. Writ Application, dated 3/31/23.
Ott v. Johnson, 192 F.3d 510, 513 (5th Cir. 1999) (period for filing for certiorari with the Supreme Court is considered in the finality determination under 28 U.S.C. § 2244(d)(1)(A)); SUP. CT. R. 13(1).
After his direct appeal, including while his post-conviction Louisiana Supreme Court writ application was pending, Frickey pursued several avenues of relief in the state courts. On March 23, 2023, Frickey filed pro se a Louisiana Supreme Court writ application addressing, using a broad reading, the timeliness of his prosecution. On August 2, 2023, the Louisiana Supreme Court declined to consider the writ application, citing La. Sup. Ct. Rule X §5(b), because Frickey failed to demonstrate that he sought review of his claims in the lower state courts before filing the writ application. That same day, the court denied a second writ application for the same reasons, although the record does not clearly contain a copy of Frickey's related writ application.
ECF No. 19, at 14-15, La. Sup. Ct. Writ Application, 23-KH-473, 4/3/23 (dated 3/23/23).
State v. Frickey, 367 So.3d 637 (La. Aug. 2, 2023); ECF No. 19, at 4, La. Sup. Ct. Order, 2023-KH-0473, 8/2/23.
State v. Frickey, 367 So.3d 632 (La. Aug. 2, 2023); ECF No. 19, at 6, La. Sup. Ct. Order, 2023-KH-0397, 8/2/23.
In the meantime, on April 1, 2023, Frickey filed a motion seeking a speedy trial on the aggravated criminal damage to property charges for which he had already been convicted. On April 4, 2023, he also filed a motion seeking to quash the prosecution for aggravated criminal damage to property claiming the time limitation to institute the prosecution had expired. The state trial court denied both motions on April 11, 2023.
ECF No. 10, at 278, Motion for Speedy Trial, 4/10/23 (dated 4/1/23).
Id. at 275-76, Motion to Quash, 4/10/23 (dated 4/4/23).
Id. at 277, Trial Court Order on Motion to Quash, 4/11/23; id. at 281, Trial Court Order on Motion for Speedy Trial, 4/11/23.
The record does not reflect that Frickey sought review of these orders in the Louisiana Fifth Circuit. However, on or after May 15, 2023, Frickey sought review of the denial of his motions with the Louisiana Supreme Court. On September 6, 2023, the court again declined to consider Frickey's writ application, citing LA. SUP. CT. R. X§5(b), for his failure to first seek review in the lower courts.
ECF No. 16, at 1-13, La. Sup. Ct. Writ Application, dated 5/15/23; ECF No. 19, at 1-2, La. Sup. Ct. Letter, 2023-KH-757, 5/31/23.
State v. Frickey, 369 So.3d 806 (La. Sep. 6, 2023).
On November 4, 2023, Frickey filed another writ application with the Louisiana Supreme Court in which he alleged, under a broad reading of his pleading: (1) he has been targeted by gangs, oil companies, and associates in the hometown of his victims Terry and Brandon Breaux through a corrupt network of attorneys and political figures; (2) the evidence was insufficient because the firearm was inoperable, broken and jammed, because his hunting gear and bullets were stolen out of his truck; and (3) he has been a targeted distraction for a terrorist crime family on the gulf coast and in the fishing industry which is part of Islamic Al-Qaida. On January 17, 2024, the Louisiana Supreme Court decreed that the writ would not be considered, citing La. Sup. Ct. Rule X §5(b), because Frickey failed to demonstrate that he sought review of his claims in the lower state courts before filing the writ application.
ECF No. 17, at 1-8, La. Sup. Ct. Writ Application, 23-KH-1496, 11/13/23 (dated 11/4/23).
State v. Frickey, 376 So.3d 850 (La. Jan. 17, 2024); ECF No. 10, at 289, La. Sup. Ct. Order, 2023-KH-1496, 1/17/24. The record contains a copy of a post-conviction application, bearing no file stamp or date, which appears to be part of an appendix to Frickey's La. Sup. Ct. Writ Application No. 23-KH-1496. ECF No. 18, at 3-7, Copy of Post-Conviction Application, dated 9/18/23.
II. FEDERAL HABEAS PETITION
On March 4, 2024, the clerk of court filed Frickey's federal habeas petition brought pursuant to 28 U.S.C. § 2254. Although Frickey's original petition is crafted in an almost indecipherable handwriting and includes multiple pages of disconnected ramblings, on its review, the Court identifies the following claims as being presented by Frickey:
ECF No. 1.
(1) he has been targeted individually and distinctly by a terrorist and crime organization in the State and underworld of prison businesses targeting the areas of St. Charles and Lafourche Parishes and plaguing the State gulf coast fishing and small business industries for enemy tactics and agenda. The accusers attack and target his family, children, and businesses. There has been prison and unethical targeting by a terrorist and crime family out of lower Lafourche and connected Parish of Catahoula, town of Gheens, La.,
corrupted C.O. and officers, corrupt targeting in lower Lafourche, Plaquemines Parish, and Catahoula Parish connections, gang targeting and stalking and prison underworlds targeting (Cartel type) crime and terrorist groups on his life and family for pyramid schemes and trafficking schemes.
(2)(a) attacks have been made on his family and business through targeting by Freedom members and Al-Qaida soldiers, prison militias, gang informants, and some terrorist programs and projects to commit pyramid schemes with unjust chain of events to gain a lawsuit on his life and his family's lives. Terrorist soldiers and identity and control programs and torture attacks -same tactic was used on businessmen and military families since the ‘90s and 2005 in Des Allemandes and St. Charles area (female soldiers) and division tactics and control tactics to commit pyramid schemes and theft of assets of cartel victims of native Americans. Blood soldiers are constantly watching the growth of his family since 1970's and Vietnam era in these communities with constant racist state, plotting, and calculating pyramid schemes and vandalizing conflicts on original soldier family and native Americans who backed the South; and
(b) there was insufficient evidence because the firearm was not working with a broken jam that gang terrorist attacked resources in matters called about when hunting bags were stolen out of his truck, including gear and bullets, deer gear, and duck gear before the incident. The deputy on the stand could not even explain that firearm reported to caller and made report on theft. There also was a copperplated pellet on the floor in the home and the casings on scene were not of copper Winchester shells, the only one that used copper pellets.
(3) he has suffered previous acts of violence on himself and his juvenile son. He suffered an injury to his lower back and had a lawsuit in federal court, but his lawyer did not subpoena witnesses. While healing, he was jumped by four people nearly losing his arm and had a 12 month infection and surgery. There was a case and conflict over an attempted murder in 2009 on his then 10-year-old son on a day of riding with friends, seeking him out of three, pushing him off trails into trees, throwing rocks and bricks at him, in a jealous rage and bully episode. He claims he can prove that there were seven other youths summoned by the attacker who corrupted and stole this boy's bike and found by a guy in Bayou Blue. This man caters to high profile people in terrorist and prison world and has always targeted our children, with a few also found deceased from his previous attacks. Witnesses that were also denied protection in the Parish, as his daughter and
grandchildren, targeting with those collaborating type Al-Qaida soldiers, prison type connection.
ECF No. 1, ¶I, at 6.
Id., ¶II(a), at 6.
Id. at 9 (“Claim 2 Insufficient Evidence).
Id., ¶III, at 12.
On June 10, 2024, in response to the State's opposition, discussed below, Frickey filed a form habeas petition (docketed as a supplemental petition) in which he asserted no additional grounds for relief. Instead, Frickey merely requested that the court “see attached copies of all filings in this case.” Attached to his pleading are forty pages of handwritten assertions, which include a number of claims and related arguments. Broadly construing the pleading as a supplemental petition and, in an effort to minimize the nonsensical ramblings, synthesizes here the comprehensible arguments presented by Frickey:
ECF No. 20 at 3, ¶12, Ground One, subpart (a).
I have omitted the following assertions, similar to those in the original filing, to avoid repetition: (1) there has been targeting by corrupted world of prison informants tied to suspected connected cartels, crime organization or family, and soldiers; stalking and targeting by lobbyists and militants and corrupt informers and soldiers connection to crime and terrorist, cartel underworld of state prison system (gang, targeting and stalking); (2) the division from family for the agenda of prison destruction from lobbyist and militant underworld, targeting children by cartels and soldiers, told terrorist connected extremist program, from Africa, Arabic world and crime terrorist connection to underworld targeting and stalking catholic and military law enforcement; and (3) the night this happened, he was on an old ice chest of beer and water. That way, if he was hit with a chemical attack, “seeing needle holey in water bottles,” he would leave in his boat. Mice were coming in his boat shed that night, saying Mojo dealers had the run of his son's life. They were going take their lives as his then-girlfriend was helping Frickey keep him away from this group of drug dealers with tracking on his phone. This girl and Frickey's son would have lived in the area where he was pulled over. After binding two witnesses' hands, this opened up and two hour confessions in Arabic on this phone, with witnesses if they don't lie after this charge. See ECF No. 20, at 12, ¶12(1); id. at 12-13, ¶J(10)-M(12); id. at 13, ¶O(15); see also id. at 18-31.
(1) insufficient evidence and denial of Miranda rights;
(2) denial of due process when denied counsel of choice at trial;
(3) denial of right to present a defense relative to Officer Jeffery Wynne;
(4) denial of due process relative to competency at sentencing;
(5) denial of due process relative to the presentence investigation report;
(6) denial of due process when the court impermissibly allowed evidence of other bad acts in at trial and prevented exposing the targeting attack on his life and family by the victim's and witness's crimes and connections;
(7) excessive sentence;
(8) errors patent review;
(9) the trial was staged and the jury tainted by corruption;
(10) the State had a picture of a copper plated pellet on the floor where this shooting took place but there was no Winchester shell on ground;
(11) Ms. Jessica St. Amant testified to her and Breaux laying in the bed at the time. His attorney failed to cross-examine this contention as Frickey requested. Breaux said he was out walking the dogs and witness Frickey on the bed of his truck. He was on the street checking on his children.
On May 29, 2024, the State filed an answer and memorandum in opposition to Frickey's original petition. The State argued that, except for the sufficiency of the evidence claim, review of Frickey's remaining claims has not been exhausted in the state courts. The State also conclusorily asserts that the remaining claims are fanciful or legally frivolous under Rule 4 of the Rules Governing Section 2254 Cases. The State further argued that the sufficiency of the evidence claim, alleging that the firearm was not working, is without merit under the standards set forth in Jackson v. Virginia, 443 U.S. 307 (1979).
ECF Nos. 9, 9-1.
ECF No. 9, at 3.
ECF No. 9, at 4.
ECF No. 9-1, at 11-14.
The State's response was filed before Frickey's supplemental petition was filed. Nevertheless, the State's response is sufficient for the Court to proceed with its review.
III. LAW AND ANALYSIS
A. Frickey's Request to Be Removed from the 29th Judicial District
On June 18, 2024, Frickey filed a request to be removed from the 29th Judicial District for St. Charles Parish, Louisiana. Broadly construing his request, he seeks to be moved out any facility or custodial status that involves St. Charles or Lafourche Parishes. Instead, he wants to be placed on work release or on a federal hold with an ankle bracelet outside of those Parishes.
ECF No. 23.
Id., ¶2, at 1.
Federal habeas corpus relief is not available to review questions unrelated to the cause and constitutionality of the petitioner's detention. The United States Fifth Circuit has held that the “sole function” of federal habeas “is to grant relief from unlawful imprisonment or custody and it cannot be used properly for any other purpose.” The Supreme Court likewise has decreed that federal habeas corpus has “no other power” than “to enforce the right of personal liberty” when that person is detained without authority.
Pierre v. United States, 525 F.2d 933, 935 (5th Cir. 1976).
Id. at 936.
Fay v. Noia, 1963, 372 U.S. 391, 430-431 (1963); Pierre, 525 F.2d at 936.
However, the Due Process Clause does not, by itself, grant a prisoner a protected liberty interest in the location of his confinement. Thus, a prisoner does not have a constitutional right to serve a sentence in any particular institution or to be transferred from one facility to another.
See Meachum v. Fano, 427 U.S. 215, 224 (1976); Sandin v. Conner, 515 U.S. 472, 478 (1995) (“the Due Process Clause did not itself create a liberty interest in prisoners to be free from intrastate prison transfers.”); Yates v. Stalder, 217 F.3d 332, 335 (5th Cir. 2000); Tighe v. Wall, 100 F.3d 41, 42 (5th Cir. 1996).
See Olim v. Wakinekona, 461 U.S. 238, 249-50 (1983); Tighe, 100 F.3d at 42.
Similarly, under Louisiana law, inmates have no constitutionally protected right to be housed in a particular location. Louisiana law instead grants the Department of Corrections (“DOC”) broad discretion to decide to which penal institution an inmate should be committed or transferred. The Fifth Circuit has repeatedly held that, pursuant to the unvaried language in § 15:824, the placement of inmates in Louisiana is the discretionary duty of the DOC. As a result, state inmates have no constitutionally protected right to be housed in a particular location.
Woods v. Edwards, 51 F.3d 577, 581-82 (5th Cir. 1995).
LA. STAT. ANN. § 15:824; Haynes v. Henderson, 480 F.2d 550, 552 (5th Cir. 1973) (finding § 15:824 “leaves complete discretion in the DOC to decide in what institution a convicted adult offender shall serve his sentence of confinement”); Alphonse v. La. Dep't of Pub. Safety & Corrs., No. 18-6133, 2018 WL 4252642, at *1 (E.D. La. Sep. 6, 2018) (citing Haynes, 480 F.2d at 552); see also Sandifer v. Tanner, No. 14-1670, 2015 WL 4168172, at *5 (E.D. La. Jul. 1, 2015); Addison v. McVea, No. 13-5264, 2014 WL 7137565, at *3 (E.D. La. Dec. 15, 2014).
Woods, 51 F.3d at 581-82.
Frickey has failed to present a basis for this court to review the legality or constitutionality of his placement in any particular prison within Louisiana. Without that showing, he is not entitled to any such relief under this court's habeas corpus authority. For these reasons, and in light of the following recommendation that his entire petition be dismissed, Frickey's request to be removed from custody in St. Charles Parish or Lafourche Parish should be denied.
B. Review of Frickey's Habeas Petition
The Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), Pub. L. No. 104 132, 110 Stat. 1214, comprehensively revised federal habeas corpus legislation, including 28 U.S.C. § 2254. The AEDPA went into effect on April 24, 1996, and applies to habeas petitions filed after that date. Frickey's original petition is deemed filed on February 29, 2024.
The AEDPA was signed into law on that date and did not specify an effective date for its non-capital habeas corpus amendments. Absent legislative intent to the contrary, statutes become effective at the moment they are signed into law. United States v. Sherrod, 964 F.2d 1501, 1505 (5th Cir. 1992).
Flanagan v. Johnson, 154 F.3d 196, 198 (5th Cir. 1998) (citing Lindh v. Murphy, 521 U.S. 320 (1997)).
The Fifth Circuit has recognized that a “mailbox rule” applies to pleadings, including habeas corpus petitions filed after the effective date of the AEDPA, submitted to federal courts by prisoners acting pro se. Under this rule, the date when prison officials receive the pleading from the inmate for delivery to the court is considered the time of filing for limitations purposes. Coleman v. Johnson, 184 F.3d 398, 401 (5th Cir. 1999), abrogated on other grounds by Richards v. Thaler, 710 F.3d 573, 578-79 (5th Cir. 2013); Spotville v. Cain, 149 F.3d 374, 376-78 (5th Cir. 1998); Cooper v. Brookshire, 70 F.3d 377, 379 (5th Cir. 1995). Frickey did not date his signature or any part of the form petition or his attached pages. The envelope, however, bears a postal date of February 19, 2024. This is the earliest date appearing in the record on which Frickey could have mailed his pleadings to this court for filing. ECF No. 1, at 14.
1. Preliminary Considerations
The two threshold questions in habeas review under the amended statute are (1) whether the petition is timely and (2) whether petitioner's claims were adjudicated on the merits in state court. In other words, has the petitioner exhausted state court remedies and is the petitioner in “procedural default” on a claim. The State asserts that Frickey failed to exhaust state court review of all but one of his claims, specifically, the sufficiency of the evidence, for which state court review was exhausted on direct appeal. The court recognizes that Frickey's supplemental petition presents all eight of the claims asserted by his counsel on direct appeal, all of which are considered exhausted through the appeal to the Louisiana Fifth Circuit and the related Louisiana Supreme Court writ application, also filed by Frickey's counsel.
Nobles v. Johnson, 127 F.3d 409, 419-20 (5th Cir. 1997) (citing 28 U.S.C. § 2254(b), (c)) (“If a state court clearly and expressly bases its dismissal of a prisoner's claim on a state procedural rule, and that procedural rule provides an independent and adequate ground for the dismissal, the prisoner has procedurally defaulted his federal habeas claim.” (citations omitted)).
However, Frickey's original and supplemental federal habeas petitions present a number of claims and arguments that have not been properly presented to any state court much less exhausted through the state courts. The State was not directed to file a response to Frickey's supplemental petition. Nevertheless, the State's reasoning and defenses asserted in its initial opposition response apply equally to the unexhausted claims in the supplemental petition. The court, therefore, will sua sponte consider Frickey's failure to exhaust review of those claims and arguments not brought to the state courts on appeal or post-conviction review.
The United States Fifth Circuit has held that when there is no express waiver, the district court may, in its discretion, address affirmative defenses sua sponte. When the court exercises its discretion to do so sua sponte, it must assure that the petitioner has notice that the issue is being considered. Because the court is expanding the scope of the exhaustion defense urged by the State, I hereby give Frickey express notice that the court is considering his failure to exhaust state court review of a number of his claims enumerated below. Accordingly, petitioner is hereby specifically instructed that this Report and Recommendation is notice to him that this Court is sua sponte raising the issue of failure to exhaust beyond that asserted by the State and that petitioner must submit any evidence or argument concerning his failure to exhaust as part of any objections he may file to this report.
Prieto v. Quarterman, 456 F.3d 511, 518 (5th Cir. 2006) (citing Magouirk v. Phillips, 144 F.3d 348, 360 (5th Cir. 1998)) (addressing procedural default); Day v. McDonough, 547 U.S. 198, 209-10 (2006) (addressing limitations).
Fisher v. Texas, 169 F.3d 295, 301 (5th Cir.1999); Magouirk, 144 F.3d at 358.
Fisher, 169 F.3d at 301; Magouirk, 144 F.3d at 358.
Id. at 348.
For the reasons that follow, the State is correct in its assertion that Frickey failed to properly exhaust state court review of all of his claims, and Frickey's petition should be dismissed without prejudice.
2. Exhaustion Doctrine
“A fundamental prerequisite to federal habeas relief under § 2254 is the exhaustion of all claims in state court prior to requesting federal collateral relief.” A federal habeas petition should be dismissed if state remedies have not been exhausted as to all of the federal habeas claims and supporting arguments brought by the petitioner.
Whitehead v. Johnson, 157 F.3d 384, 387 (5th Cir. 1998) (citing Rose v. Lundy, 455 U.S. 509, 519-20 (1982)); Preiser v. Rodriguez, 411 U.S. 475, 500 (1973); Nobles, 127 F.3d at 419.
Whitehead, 157 F.3d at 387 (citing 28 U.S.C. § 2254(b)(1)(A); Rose, 455 U.S. at 519-20) (emphasis added).
The exhaustion requirement is satisfied when the substance of the federal habeas claims has been “fairly presented to the highest state court” in a procedurally proper manner. “State prisoners must give the state courts one full opportunity to resolve any constitutional issues by invoking one complete round of the State's established appellate review process,” including discretionary review when that review is part of the State's ordinary review procedures. The federal claim also must be “the ‘substantial equivalent' of one presented to the state courts if it is to satisfy the ‘fairly presented' requirement.” “This requirement is not satisfied if the petitioner presents new legal theories or new factual claims in his federal application.” When ineffective assistance of counsel is asserted, the claim is not exhausted if the petitioner did not raise or mention the same factual basis or legal theory in the state court proceedings that is asserted in a federal petition. It also is not enough for a petitioner to raise the claims in the lower state courts, if they were not also specifically presented to the Louisiana Supreme Court in a procedurally proper manner, and vice versa.
Id. (citing Picard v. Connor, 404 U.S. 270, 275-78 (1971)).
O'Sullivan v. Boerckel, 526 U.S. 838, 845 (1999); Duncan v. Walker, 533 U.S. 167, 177-79 (2001).
Whitehead, 157 F.3d at 387 (citing Picard, 404 U.S. at 275-78).
Id. (citing Nobles, 127 F.3d at 420) (emphasis added).
See Ogan v. Cockrell, 297 F.3d 349, 358 (5th Cir. 2002) (“Because Ogan is now proceeding on a different theory than that advanced in the state habeas court, we find this ineffectiveness of habeas counsel claim to be unexhausted.”); Burns v. Estelle, 695 F.2d 847, 849-50 (5th Cir. 1983) (factual bases for ineffective assistance claim were not exhausted as “significantly different” from those raised in state court).
See Baldwin v. Reese, 541 U.S. 27, 32 (2004) (a prisoner does not fairly present a claim to a state court if that court must read beyond a petition or brief, such as a lower court opinion, to find the claim).
The burden is on the petitioner to properly assert his federal claims in the state courts in a manner and time when state procedural law permits its consideration on the merits.
Bell v. Cone, 543 U.S. 447, 451 n.3 (2005) (citing Baldwin, 541 U.S. at 30-32).
a. Frickey Failed to Exhaust State Court Review of All Claims
“Habeas petitioners must exhaust state remedies by pursuing their claims through one complete cycle of either state direct appeal or post-conviction collateral proceedings.” In Louisiana, an application for post-conviction relief must first be filed in the state trial court and assert all post-conviction claims to be reviewed. Louisiana's rules further require that, when a trial court denies post-conviction relief, the defendant has 30 days from issuance of the trial court's order to file for review in the appellate court. The defendant would then have 30 days from issuance of the appellate court's ruling to seek review in the Louisiana Supreme Court. Under federal law, when a claim or supporting argument is not specifically and properly presented to each level of the state courts, review is not exhausted.
Busby v. Dretke, 359 F.3d 708, 723 (5th Cir. 2004).
LA. CODE CRIM. P. art. 926(A), (B)(5) (the written application must be addressed to the district court and include “all errors known or discoverable with due diligence.”)
LA. APP. R. 4-3 (a writ application must be filed in the court of appeal within 30 days after issuance of a trial court's ruling); see also, LA. CODE CRIM. P. art. 930.6 (a petitioner may seek supervisory review of the denial of a postconviction application in the court of appeal).
LA. SUP. CT. R. X§5 (a writ application must be filed within thirty days of the mailing of the court of appeal's judgment); accord Wilson v. Cain, 564 F.3d 702 (5th Cir. 2009) (discussing LA. SUP. CT. R. X§5).
Whitehead, 157 F.3d at 387 (citing Nobles, 127 F.3d at 420) (emphasis added).
In this case, Frickey failed to properly exhaust state court review of all of the claims asserted in this federal habeas proceeding. On direct appeal, his counsel asserted the eight claims listed above, which Frickey repeated in his supplemental complaint:
(1) insufficient evidence to prove identification, that Frickey was the shooter, or that Frickey's gun was used in the assault;
(2) denial of due process when denied counsel of choice at trial;
(3) denial of right to present a defense relative to Officer Jeffery Wynne;
(4) denial of due process relative to competency at sentencing;
(5) denial of due process relative to the presentence investigation report;
(6) denial of due process when the court impermissibly allowed evidence of other bad acts in at trial and prevented exposing the targeting attack on his life and family by the victim's and witness's crimes and connections;
(7) excessive sentence; and
(8) errors patent review.
Frickey was denied relief on each of the first seven substantive claims on direct appeal by the Louisiana Fifth Circuit. His counsel presented each of the seven substantive claims in a writ application to the Louisiana Supreme Court which was denied without additional reasons. Therefore, review of the seven claims has been properly exhausted in the state courts.
For the errors patent review, while the Louisiana Fifth Circuit discovered a post-conviction notice error, it was corrected by the appellate opinion and no further relief was given.
Frickey, however, raises the following additional claims in this federal petition, and these additional claims have not been properly exhausted in the state courts because he has not presented the claims in a procedurally proper manner at each level of the state courts:
(1) request for errors patent review;
(2) denial of Miranda rights;
(3) the trial was staged and the jury tainted by corruption;
(4) Ms. Jessica St. Amant testified to her and Breaux laying in the bed at the time. His attorney failed to cross-examine this contention as Frickey requested. Breaux said he was out walking the dogs and witness Frickey on the bed of his truck. He was on the street checking on his children;
(5) he has been targeted individually and distinctly by a terrorist and crime organization in the State and underworld of prison businesses targeting the areas of St. Charles and Lafourche Parishes and plaguing the State gulf coast fishing and small business industries for enemy tactics and agenda. The accusers attack and target his family, children, and businesses. There has been prison and unethical targeting by a terrorist and crime family out of lower Lafourche and connected Parish of Catahoula, town of Gheens, La., corrupted C.O. and officers, corrupt targeting in lower Lafourche, Plaquemines Parish, and Catahoula Parish connections, gang targeting and stalking and prison underworlds targeting (Cartel type) crime and terrorist groups on his life and family for pyramid schemes and trafficking schemes;
(6) attacks have been made on his family and business through targeting by Freedom members and Al-Qaida soldiers, prison militias, gang informants, and some terrorist programs and projects to commit pyramid schemes with unjust chain of events to gain a lawsuit on his life and his family's lives. Terrorist soldiers and identity and control programs and torture attacks -same tactic was used on businessmen and military families since the ‘90s and 2005 in Des Allemandes and St. Charles area (female soldiers) and division tactics and control tactics to commit pyramid schemes and theft of assets of cartel victims of native Americans. Blood soldiers are constantly watching the growth of his family since 1970's and Vietnam era in these communities with constant racist state, plotting, and calculating pyramid schemes and vandalizing conflicts on original soldier family and native Americans who backed the South;
(7) he has suffered previous acts of violence on himself and his juvenile son. He suffered an injury to his lower back and had a lawsuit in federal court, but his lawyer did not subpoena witnesses. While healing, he was jumped by four people nearly losing his arm and had a 12 month infection and surgery. There was a case and conflict over an attempted murder in 2009 on his then 10-year-old son on a day of riding with friends, seeking him out of three, pushing him off trails into trees, throwing rocks and bricks at him, in a jealous rage and bully episode. He claims he can prove that there were seven other youths summoned by the attacker who corrupted and stole this boy's bike and found by a guy in Bayou Blue. This man caters to high profile people in terrorist and prison world and has always targeted our children, with a few also found deceased from his previous attacks. Witnesses that were also denied protection in the Parish, as his daughter and grandchildren, targeting with those collaborating type Al-Qaida soldiers, prison type connection;
(8) he has been targeted individually and distinctly by a terrorist and crime organization in the State and underworld of prison businesses targeting the areas of St. Charles and Lafourche Parishes and plaguing the State gulf coast fishing and small business industries for enemy tactics and agenda;
(9) attacks have been made on his family and business through targeting by Freedom members and Al-Qaida soldiers, prison militias, gang informants, and some terrorist programs and projects to commit pyramid schemes with unjust chain of events to gain a lawsuit on his life and his family's lives;
(10) he has suffered previous acts of violence on himself and his juvenile son. He suffered an injury to his lower back and had a lawsuit in federal court, but his lawyer did not subpoena witnesses. While healing, he was jumped by four people nearly losing his arm and had a 12 month infection and surgery. There was a case and conflict over an attempted murder in 2009 on his then 10-year-old son on a day of riding with friends, seeking him out of three, pushing him off trails into trees, throwing rocks and bricks at him, in a jealous rage and bully episode. He claims he can prove that there were
seven other youths summoned by the attacker who corrupted and stole this boy's bike and found by a guy in Bayou Blue. This man caters to high profile people in terrorist and prison world and has always targeted our children, with a few also found deceased from his previous attacks. Witnesses that were also denied protection in the Parish, as his daughter and grandchildren, targeting with those collaborating type Al-Qaida soldiers, prison type connection;
(11) there has been targeting by corrupted world of prison informants tied to suspected connected cartels, crime organization or family, and soldiers; stalking and targeting by lobbyists and militants and corrupt informers and soldiers connection to crime and terrorist, cartel underworld of state prison system (gang, targeting and stalking);
(12) the division from family for the agenda of prison destruction from lobbyist and militant underworld, targeting children by cartels and soldiers, told terrorist connected extremist program, from Africa, Arabic world and crime terrorist connection to underworld targeting and stalking catholic and military law enforcement; and
(13) the night this happened, he was on an old ice chest of beer and water. That way, if he was hit with a chemical attack, “seeing needle holey in water bottles,” he would leave in his boat. Mice were coming in his boat shed that night, saying Mojo dealers had the run of his son's life. They were going take their lives as his then-girlfriend was helping Frickey keep him away from this group of drug dealers with tracking on his phone. This girl and Frickey's son would have lived in the area where he was pulled over. After binding two witnesses' hands, this opened up and two hour confessions in Arabic on this phone, with witnesses if they don't lie after this charge.
Frickey did not present to any state court or exhaust review in the state courts on his claims numbers two through four that he was denied his Miranda rights, that the trial was staged and the jury tainted by corruption, or that his counsel was ineffective for failing to properly cross-examine witnesses Breaux and St. Amant. This failure leaves review of these claims unexhausted.
He did assert claims similar to at least parts of claim numbers five through thirteen related to threats and attacks on and stalking of him as his family by Al-Qaida and other political and underworld operatives in several of his pro se writ applications to the Louisiana Supreme Court. However, as discussed above, the Louisiana Supreme Court did not consider any of those writ applications finding that each application was procedurally improper under LA. SUP. CT. R. X§5(b). This failure to properly present his claims at each level of the state courts renders review of these claims unexhausted.
I recognize that, under Rule 4 of the Rules Governing Section 2254 Cases, a district court may summarily dismiss an application “[i]f it plainly appears from the petition and any attached exhibits that the petitioner is not entitled to relief in the district court.” Id.; Kiser v. Johnson, 163 F.3d 326, 328 (5th Cir. 1999). As a general rule, the court must determine whether the petition's factual allegations are “so palpably incredible, . . . so patently frivolous or false, as to warrant summary dismissal.” Blackledge v. Allison, 431 U.S. 63, 76 (1977) (internal quotation marks and citations omitted). In this case, Frickey has asserted a number of arguments, specifically claims 5 through 13 of the unexhausted claims, that appear factually incredible and perhaps fanciful. Many of his statements are rambling, invoking images of foreign terrorists and underworld figures in politics and prisons stalking him and his family in multiple parts of rural Louisiana. However, because he has not exhausted review of his claims, the court need not reach the question of dismissal under Rule 4. Instead, Frickey will have the option to himself dismiss the claims if he intends for this court to address the exhausted claims in his petition.
As the Louisiana Supreme Court implied in their post-conviction rulings, Frickey's record contains no indication that he raised his claims in the lower courts in any manner, much less a procedurally proper manner, before seeking relief in the Louisiana Supreme Court. He, therefore, did not give the state courts one full and complete opportunity to review all of his claims at each level before presenting his claims in this federal habeas petition. Review of these thirteen listed claims and arguments were not properly exhausted in the state courts before being asserted in this federal habeas petition.
O'Sullivan, 526 U.S. at 845; Duncan, 533 U.S. at 177-79.
b. Frickey's Petition Should be Dismissed and Not Stayed
Frickey did not give the Louisiana courts the opportunity to consider all of his postconviction claims and theories in a procedurally proper manner before presenting his claims to this federal habeas court. As a result, Frickey's “mixed petition,” which includes both exhausted and unexhausted claims, is subject to dismissal without prejudice.
Whitehead, 157 F.3d at 387 (citing Nobles, 127 F.3d at 420).
The Supreme Court has long required that a mixed petition like this one be dismissed without prejudice to allow for complete exhaustion. The Supreme Court recognizes that a petitioner has two choices when faced with dismissal of a mixed petition: (1) return to the state courts to exhaust the claims in full; or (2) amend or resubmit the petition to pursue only exhausted claims in the federal district court. Frickey should now be required to make this choice.
Pliler v. Ford, 542 U.S. 225, 233 (2004) (citing Rose, 455 U.S. at 510).
Id. at 230-31.
In Pliler, the Supreme Court also addressed the possibility of a stay-and-abeyance in connection with “mixed petitions” for habeas relief containing both exhausted and unexhausted claims. The Supreme Court later held that stay-and-abeyance was an extraordinary remedy not to be made readily available to a habeas petitioner. The Court later in Rhines cautioned that a stay-and-abeyance “should be available only in limited circumstances,” and is appropriate only when the district court determines that there was “good cause” for the failure to exhaust. Stays are improper when the unexhausted claims are “plainly meritless” or when the petitioner has engaged in “abusive litigation tactics or intentional delay.”
Pliler, 542 U.S. at 230-31.
Rhines v. Weber, 544 U.S. 269, 278 (2005).
Id. at 277 (emphasis added).
Id. at 277-78.
In this case, there is no good cause for Frickey's failure to exhaust review of all of his claims and arguments, including but not limited to his claims suggesting an unfair trial, tainted jury, and ineffective assistance of counsel (see unexhausted claims one through four above). The Louisiana Supreme Court made clear on several occasions that Frickey had to first present his claims to the lower courts before seeking review in that court. The record does not indicate that he abided those procedurally requirements or filed any post-conviction applications in the state trial court or post-conviction writ applications in the Louisiana Fifth Circuit.
The extraordinary remedy of a stay for him to fully exhaust should not be available or deemed necessary under the circumstances of this case. Instead, Frickey's petition should be dismissed without prejudice to allow him to exhaust any available state court remedies as to his legitimate, non-frivolous constitutional challenges to his conviction, unless Frickey exercises the option, within the fourteen (14) day objection period provided below, to amend his habeas petition to dismiss the thirteen unexhausted claims and present only the seven exhausted claims identified in this report.
Pliler, 542 U.S. at 233 (citing Rose, 455 U.S. at 510); Whitehead, 157 F.3d at 387.
c. Summary of Exhaustion
For the foregoing reasons, Frickey did not exhaust state court review of all of his claims, specifically the thirteen claims identified above. Instead, the record confirms that Frickey has only exhausted the seven claims asserted in his direct appeal and presented in his supplemental federal petition: (1) insufficient evidence to prove identification, that Frickey was the shooter, or that Frickey's gun was used in the assault; (2) denial of due process when denied counsel of choice at trial; (3) denial of right to present a defense relative to Officer Jeffery Wynne; (4) denial of due process relative to competency at sentencing; (5) denial of due process relative to the presentence investigation report; (6) denial of due process when the court impermissibly allowed evidence of other bad acts in at trial and prevented exposing the targeting attack on his life and family by the victim's and witness's crimes and connections; and (7) excessive sentence.
However, Frickey has included thirteen other unexhausted claims in this federal petition, including claims of unfair trial, tainted jury, and ineffective assistance of counsel. The petition, therefore, should be dismissed without prejudice for failure to exhaust review of the unexhausted claims unless Frickey amends the petition to dismiss the thirteen unexhausted claims to proceed with only the seven exhausted claims identified herein.
RECOMMENDATION
For the foregoing reasons, it is RECOMMENDED that Ryk Anthony Frickey's request to be removed from custody in St. Charles Parish or Lafourche Parish (ECF No. 23) be DENIED.
It is further RECOMMENDED that Ryk Anthony Frickey's habeas corpus petition under 28 U.S.C. § 2254 be DISMISSED WITHOUT PREJUDICE for failure to exhaust state court remedies unless Frickey, within the fourteen (14) day objection period provided below, amends the petition to dismiss the unexhausted claims to proceed with only the seven exhausted claims identified in this report.
A party's failure to file written objections to the proposed findings, conclusions, and recommendation in a magistrate judge's report and recommendation within fourteen (14) days after being served with a copy shall bar that party, except upon grounds of plain error, from attacking on appeal the unobjected-to proposed factual findings and legal conclusions accepted by the district court, provided that the party has been served with notice that such consequences will result from a failure to object.
Douglass v. United Servs. Auto. Ass'n, 79 F.3d 1415, 1430 (5th Cir. 1996) (en banc) (citing 28 U.S.C. § 636(b)(1)). Douglass referred to the previously applicable ten-day period for filing of objections, which was extended to fourteen days by amendment effective December 1, 2009, 28 U.S.C. § 636(b)(1).