Opinion
Civil Action No. 00-1408
December 31, 2001
ORDER AND REASONS
This matter was referred to the United States Magistrate Judge for the purpose of conducting a hearing, if necessary, and submission of proposed findings of fact and recommendations pursuant to 28 U.S.C. § 636(b)(1)(B) and, as applicable, Rule 8(b) of the Rules Governing Section 2254 Cases. Before the Court are petitioner's objections to the Magistrate's Report and Recommendation. Having reviewed de novo the complaint, the record, the applicable law, the Report and Recommendation of the United States Magistrate Judge, and petitioner's objections thereto, the Court agrees that petitioner's complaint should be dismissed with prejudice.
I. BACKGROUND
Petitioner, Reginald A. Green, is a state prisoner incarcerated at the Louisiana State Penitentiary in Angola, Louisiana. A state jury convicted him of armed robbery on January 25, 1996. The state trial court sentenced Green as a multiple offender to sixty-six years and eight months imprisonment. The Louisiana Fourth Circuit Court of Appeal affirmed his conviction and sentence on June 25, 1997. See State v. Green, 696 So.2d 286 (La.App. 4th Cir. 1997) (table). The Louisiana Supreme Court denied Green's application for writ of certiorari and/or review on January 9, 1998. See State v. Green, 705 So.2d 1098 (La. 1998)
On February 9, 1998, Green applied for post-conviction relief, which the state trial court granted, ordering a new trial. See State Rec. Vol. 1 of 6. The Louisiana Fourth Circuit, however, reversed the trial court and reinstated Green's conviction and sentence. See State v. Green, 731 So.2d 286 (La.App. 4th Cir. 1998), opinion reinstated on reh'g, 731 So.2d 298 (La.App. 4th Cir. 1998). On May 7, 1999, the Louisiana Supreme Court denied Green's application for writ of certiorari and/or review. See State v. Green, 741 So.2d 28 (La. 1999).
On May 5, 2000, petitioner filed this application for habeas corpus relief. Petitioner raises the following grounds for relief: (1) failure by the State to disclose exculpatory evidence and (2) ineffective assistance of counsel before and during trial.
II. DISCUSSION
A. Standard of Review
The Antiterrorism and Effective Death Penalty Act of 1996, effective April 24, 1996, comprehensively revised federal habeas corpus legislation and instituted revised standards of review for federal habeas claims adjudicated on the merits in state court. Under the AEDPA, a federal habeas court may not grant a state prisoner's application for a writ of habeas corpus with respect to claims adjudicated on the merits in state court unless the state-court adjudication resulted in a decision that (1) was contrary to, or involved an unreasonable application of clearly established federal law as determined by the Supreme Court; or (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding. See 28 U.S.C. § 2254(d). The Supreme Court recently held that a decision is contrary to clearly established federal law if the state court arrives at a conclusion opposite to that reached by the Supreme Court on a question of law, or if the state court decides a case differently than the Supreme Court has on a set of materially indistinguishable facts. See Williams v. Taylor, 529 U.S. 362, 120 S.Ct. 1495, 1523 (2000); accord Hill v. Johnson, 210 F.3d 481 (5th Cir. 2000). The Court held that a federal court may grant a writ of habeas corpus only if the state court unreasonably applies the correct governing legal principle to the facts of the prisoner's case. See id. The state court's findings of fact are entitled to a presumption of correctness, rebuttable only by clear and convincing evidence. See 28 U.S.C. § 2254(e)(1)
B. Brady Violation
The Supreme Court has held that the suppression of evidence that is material to either guilt or punishment violates due process whether or not the state acted in good faith. Brady v. Maryland, 373 U.S. 83, 87, 83 S.Ct. 1194, 1197 (1963). To establish a Brady claim, the petitioner must demonstrate that: (1) the prosecution suppressed evidence, (2) the evidence was favorable to the petitioner, and (3) the evidence was material. See Little v. Johnson, 162 F.3d 858, 861 (5th Cir. 1998) (citing United States v. Ellender, 947 F.2d 748, 756 (5th Cir. 1991)).
Here, petitioner alleges that the State failed to disclose a discrepancy as to when the robbery took place. The prosecutor discovered the time discrepancy during a pretrial hearing the morning of trial. During the hearing, the judge informed both the prosecutor and petitioner's counsel that the arrest register stated that the incident occurred at 8:15 a.m., as opposed to 9:15 a.m., when the prosecutor and defense counsel believed the incident took place. Neither the prosecutor nor defense counsel was aware of the discrepancy before the judge informed them of the contents of the arrest register. The victim, who was in the courtroom during the hearing, overheard the discussion between the judge and the attorneys and informed the prosecutor that she was going to testify that the crime occurred at 8:15 a.m. The Court finds that the prosecutor and defense counsel became aware of the discrepancy regarding the time of the. incident at the same time, and therefore, the State did not suppress any evidence, let alone Brady material. Accordingly, the petitioner's Brady claim is dismissed.
C. Ineffective Assistance of Counsel
Petitioner claims that he suffered ineffective assistance of counsel before the trial and during the trial. To prevail on an ineffectiveness claim, petitioner must demonstrate (1) that his counsel's performance was deficient and (2) that his counsel's deficient performance prejudiced the outcome of his trial. See Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052 (1984). Petitioner must satisfy both prongs of the Strickland test in order to succeed. See id. at 687, 104 S.Ct. at 2064. To establish a deficient performance, petitioner must show that his counsel's representation "fell below an objective standard of reasonableness."Jones v. Jones, 163 F.3d 285, 301 (5th Cir. 1998) (quoting Strickland, 466 U.S. at 688, 104 S.Ct. 2052). The Court applies a highly deferential standard to the examination of counsel's performance, making every effort to eliminate the distorting effects of hindsight and to evaluate the conduct from counsel's perspective at the time of trial. See id. (quotingPitts v. Anderson, 122 F.3d 275, 279 (5th Cir. 1997)); see also Lockhart v. Fretwell, 506 U.S. 364, 371, 113 S.Ct. 838, 844 (1993) (on ineffective assistance claim, courts judge counsel's conduct on the facts of the particular case, viewed as of the time of counsel's conduct) (quotingStrickland, 466 U.S. at 690, 104 S.Ct. at 2066)).
The second, or prejudice, prong of Strickland requires petitioner to show that "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome." Strickland, 466 U.S. at 694, 104 S.Ct. at 2068.
1. Failure to Adequately Investigate
The Fifth Circuit stated that "because an accused's trial can be seriously affected by the action of his attorney in preparing a case, effective counsel must conduct a reasonable amount of pretrial investigation." Lockhart v. McCotter, 782 F.2d 1275, 1282 (5th Cir. 1986) (citing Nealy v. Cabana, 764 F.2d 1173, 1177 (5th Cir. 1985). At a minimum, defense counsel must interview potential witnesses and make an independent investigation of the facts and circumstances of the case.Bryant v. Scott, 28 F.3d 1411, 1415 (5th Cir. 1994) (citing Nealy, 764 F.2d at 1177)). The failure to interview eyewitnesses to a crime may strongly support a claim of ineffective assistance of counsel. See id. (citing Gray v. Lucas, 677 F.2d 1086, 1093 n. 5 (5th Cir. 1982), cert. denied, 461 U.S. 910, 103 S.Ct. 1886 (1983)).
Petitioner contends that his counsel failed to investigate the actual time of the incident because his counsel did not talk to the sole witness to the crime, the victim, Ms. Washington. Ms. Washington was a logical target of defense counsel's investigation and should have been interviewed. Therefore, the Court finds that the petitioner satisfies the first prong of the Strickland test. The petitioner, however, fails to establish that he was prejudiced by defense counsel's failure to interview Ms. Washington. First, it is not clear that defense counsel's belief that the crime occurred at 9:15 a.m. would have been changed by Ms. Washington's insistence that it occurred at 8:15 a.m. The police reports obtained by both defense counsel and the prosecution indicated that the crime occurred at 9:15 a.m. Further, once defense counsel learned of the time discrepancy, he was able to use the discrepancy to try to impeach the police officers called by the prosecution. See Fed. Habeas Pet.; Fed. Rec. Doc. 1, Ex. O at 15. Despite defense counsel's efforts to impeach Ms. Washington, her identification testimony was too strong to be overcome by the time discrepancy. See Lockhart, 782 F.2d at 1282-83 (no prejudice despite defense counsel's failure to interview State's principal witness given strength of evidence corroborating witness's testimony). Accordingly, the Court finds that the petitioner fails to establish prejudice under Strickland as to his claim regarding his counsel's failure to interview Ms. Washington.
Petitioner asserts that his counsel was ineffective for failing to file pretrial motions. The filing of pretrial motions falls squarely within the ambit of trial strategy. Murray v. Maggio, 736 F.2d 279, 283 (5th Cir. 1984). Here, petitioner's original counsel, Jack Dolen, filed pretrial motions to suppress the victim's identification when the case was before another judge. See Fed. Habeas Pet.; Fed. Rec. Doc. 1, Ex. O at 34-35. When petitioner's trial counsel, the subject of this ineffective assistance of counsel claim, took over the case, the case had been transferred to the trial judge. See id. at 19-20. Trial counsel received all the discovery materials obtained by the former counsel, including an incident report that contained Officer Stovall's correction of his notation as to the time of the incident from 8:15 to 9:15. See id. at 20, 35. Counsel did not file any new motions because he believed that the judge did not want to revisit discovery motions. See id. at 19. Under the circumstances, it was reasonable for defense counsel not to file pretrial motions after he picked up the case. Further, the state court found no evidence that the prosecutor had the arrest register in which 8:15 was indicated as the time of the crime, and the petitioner has not presented clear and convincing evidence to the contrary. See State v. Green, 731 So.2d at 297 n. 1. Therefore, the Court finds that petitioner fails to demonstrate that his counsel would have uncovered the time discrepancy had he filed any further discovery motions, so no prejudice can be shown from the failure of defense counsel to file pretrial motions.
Petitioner contends that his counsel further failed to adequately investigate his case because he did not contact potential alibi witnesses prior to trial. The Fifth Circuit has stated that "when alibi witnesses are involved, it is unreasonable for counsel not to try to contact the witnesses and `ascertain whether their testimony would aid the defense.'"Bryant, 28 F.3d at 1415 (quoting Grooms v. Solem, 923 F.2d 88, 90 (8th Cir. 1991)). An attorney's strategic choices, however, usually based on information supplied by the defendant and gathered from a thorough investigation of the relevant law and facts "are virtually unchallengeable." Id. (quoting Strickland, 466 U.S. at 691, 104 S.Ct. at 2066). The only witnesses who petitioner claims could have testified to his whereabouts before 9:15 a.m. are Dwight Martin and Roy Sterling. Petitioner has not established that his counsel failed to investigate Mr. Sterling as a possible alibi witness. Petitioner acknowledges that his counsel was aware of Mr. Sterling before trial but chose not to pursue him as an alibi witnesses because he was behind in child support payments. See Pet.'s Motion to Suppl. Rec., Fed. Rec. Doc. 25, Ex. 4a, 20(b). Therefore, the Court finds that defense counsel did not fail to adequately investigate Mr. Sterling, but rather, he made a strategic choice that Sterling would not be a helpful witness. See Lockhart, 782 F.2d at 1282-83 (no prejudice under Strickland for failure to investigate potential alibi witness when decision was tactical).
As to Dwight Martin, it is not clear whether defense counsel ever contacted Mr. Martin. Defense counsel, however, is not required to investigate everyone whose name happens to be mentioned by the defendant. Schwander v. Blackburn, 750 F.2d 494, 500 (5th Cir. 1985) (quotes omitted); see also United States v. Cockrell, 720 F.2d 1423, 1428 (5th Cir. 1983), cert. denied, 476 U.S. 1251, 104 S.Ct. 3534. The state court found that a subpoena was issued for Mr. Martin to appear at the original trial setting in 1995, but not for the actual trial date in 1996. See State v. Green, 731 So.2d at 300. The issuance of the original subpoena suggests that petitioner's defense counsel was aware that Martin may have had information about the case, but that he may have made a strategic decision not to call him to testify at the actual trial. Additionally, defense counsel, then acting under the belief that the incident occurred at 9:15, found an alibi witness for that time, Mr. Dove. It was not until the pretrial hearing, shortly before trial was set to start, that counsel learned of the time discrepancy and the possible need to present an alibi witness for 8:15. Petitioner presents no evidence that he informed defense counsel of the content of Martin's proposed testimony before the trial began. Defense counsel testified at the post-conviction hearing that petitioner tugged on his arm at the trial and told him that his girlfriend could help him find people who were with him before 9:15. See Fed. Habeas Pet.; Fed. Rec. Doc. 1, Ex. O at 17-18. Therefore, the Court finds that it was not unreasonable for defense counsel not to investigate Martin further before the pretrial hearing. See Bryant, 28 F.3d at 1415 (failure of defense counsel to investigate alibi witness prior to petitioner's full disclosure of potential alibi witnesses not amount to ineffective assistance of counsel). Accordingly, the Court dismisses petitioner's ineffective assistance of counsel claim for defense counsel's pretrial performance.
2. Failure to Request a Mistrial, Object to New Evidence, or Ask for a Recess or Continuance
Petitioner contends that his counsel's performance at trial was constitutionally inadequate because he failed to request a mistrial or a continuance, and failed to object to the introduction of Ms. Washington's testimony that the crime occurred at 8:15. He also faults his counsel for failing to ask for a recess once it was revealed that the victim was going to testify that the crime occurred at 8:15. Under Louisiana law, a defendant may move for a mistrial and one shall be ordered when prejudicial conduct in or outside the courtroom makes it impossible for the defendant to obtain a fair trial. LA.CODE.CRIM.PROC art. 775. Additionally, if it is brought to the attention of the court that party has failed to comply with disclosure requirements, the court may order a mistrial or grant a continuance. LA.CODE.CRIM.PROC. art. 729.5.
Here, petitioner presents no conduct in or outside the courtroom that qualifies as prejudicial. Additionally, as discussed above, the prosecutor did not fail to disclose the fact that the victim was going to testify that the crime occurred at 8:15. See discussion, infra at 4-5. In the absence of any grounds for a mistrial, it cannot be said that defense counsel was deficient for not moving for a mistrial, and therefore, the petitioner fails to satisfy the first prong of the Strickland test.
The failure to request a recess or continuance in light of the revelation that the victim claimed that the incident occurred at 8:15 was unreasonable under the circumstances. See Bryant, 28 F.3d at 1417;Grooms, 923 F.2d at 91. Since the victim was going to testify that the robbery took place at 8:15, a request for a recess or continuance would have been reasonable because the only alibi witness could not testify to petitioner's whereabouts at the time the victim said the crime took place. In its reversal of the criminal district court's grant of post-conviction relief, the state appellate court held that a recess would have been useless unless the defendant could have produced a witness to testify as to his whereabouts at 8:15. See State v. Green, 731 So.2d at 295. Petitioner, however, points out that he informed counsel at the trial that he had people who could testify as to his whereabouts at 8:15. Indeed, defense counsel testified at the post-conviction relief hearing that petitioner told him at trial of two people who could testify as alibi witnesses for the pre-9:15 period. See Pet. for Habeas Relief; Fed. Rec. Doc. 1, Ex. O, 16-18. Defense counsel was unable to identify either individual's name at the hearing ( see id.). Petitioner asserts they were Dwight Martin and Roy Sterling. Defense counsel had already made the strategic determination that Sterling was not going to be a helpful witness. See Murray, 736 F.2d at 282 (district court's decision to deny habeas petition affirmed because petitioner unable to overcome strong presumption that attorney's decision not to call alibi witness was a strategic one).
Defense counsel testified at the post-conviction relief hearing that petitioner told him that his girlfriend could help him find the two alibi witnesses. See Pet. for Habeas Relief; Fed. Rec. Doc. 1, Ex. O, 17-18. Counsel had already made a tactical determination that the girlfriend would not have been a helpful witness. See id.
Furthermore, under Fifth Circuit law "[c]omplaints of uncalled witnesses are not favored in federal habeas corpus review because allegations of what a witness would have testified are largely speculative." Sayre v. Anderson, 238 F.3d 631, 635-36 (5th Cir. 2001) (citing cases). "In order for the [petitioner] to demonstrate the requisite Strickland prejudice, the [petitioner] must show not only that this testimony would have been favorable, but also that the witness would have testified at trial." Alexander v. McCotter, 775 F.2d 595, 602 (5th Cir. 1985) (citing Boyd v. Estelle, 661 F.2d 388, 390 (5th Cir. 1981). The Court finds that had counsel been able to get a recess or continuance and brought Martin in to testify, there is no reasonable probability that this testimony would have made a difference. Strickland, 466 U.S. at 694, 104 S.Ct. at 2068; see also Schwander, 750 F.2d at 500-01 (considering evidence presented at trial, no reasonable probability that had alibi witness testified, the result would have been different in case in which single witness is the victim); The victim's identification testimony was too strong to overcome. She identified petitioner based on an identifiable characteristic, the unique color of his eyes, and she testified that she had seen petitioner in the store on many occasions before the incident, which established her familiarity with his appearance and the credibility of her identification. See State Rec., vol. 3 of 6, Trial Transcript at p. 41, lines 6-32; p. 42, lines 1-3, 16-22 and 31-33; p. 43, lines 1-2; and p. 46, lines 2-6. Additionally, the alibi witness that defense counsel did call, Mr. Dove, did not mention that he saw Martin in petitioner's home on the morning of the incident, despite Martin's claim in his affidavit that he was at petitioner's home and in petitioner's presence from 7:45 a.m. until about noon. Therefore, it is not clear that Martin's testimony at trial would have been favorable because the prosecutor could have impeached him based on Dove's testimony. Further, defense counsel's failure to contact Jonathan Martin and Jaunna Martin, Dwight Martin's father and sister respectively, is irrelevant. See Pet.'s Mot. to Suppl. Rec., Fed. Rec. Doc. 25, Ex.'s 7, 8. Petitioner fails to show that he ever informed defense counsel that Jonathan and Jaunna Martin were available as potential alibi witnesses. Nevertheless, because they only claim to have seen the petitioner between 7:00 and about 7:25 their testimony would not have provided an alibi for the 8:15 robbery. See United States v. Flores Ochoa, 139 F.3d 1022, 1025 (5th Cir. 1998) (mere fact that petitioner likely would have benefitted from continuance not sufficient in itself to demonstrate that it was reasonably probable that the outcome would have changed). Consequently, the petitioner fails to satisfy the second prong of Strickland. Therefore, the Court dismisses petitioner's claims of ineffective assistance of counsel at trial.
III. Conclusion
For the foregoing reasons, the Court dismisses petitioner's petition for habeas corpus.