Opinion
Civil Action No. 00-0511 Section "A"
April 4, 2001
MEMORANDUM OPINION AND ORDER
This matter is before the Court on petitioner's application for habeas corpus relief filed pursuant 28 U.S.C. § 2254. Having reviewed the complete record, including the petition, the State's Response in Opposition to Granting Writ of Habeas Corpus, the entirety of the state record, and the applicable law, this Court has determined that this matter can be disposed of without an evidentiary hearing. See 28 U.S.C. § 2254(e)(2). For the reasons set forth herein below, the Court has determined that petitioner's application for relief should be DENIED since it is procedurally barred. In addition, the petitioner would not be entitled to relief on the merits, as the factual predicate for his Constitutional claims is absent and finds no support in the record.
Leonard alleges denial of due process in violation of the 14th Amendment of the Constitution with respect to alleged state trial court error in imposing a multiple offender sentence that was allegedly more onerous than that promised and in refusing to allow him to withdraw his guilty plea which was neither knowing nor voluntary since his plea was allegedly made in reliance on the assurances of defense counsel, the district attorney, and the the state trial judge that his August 26, 1997 multiple offender sentence would be no more burdensome that his March 18, 1997 sentence resulting from his plea to Count 2 of the original bill of information for simple burglary of an inhabited dwelling, which sentence was vacated according to his plea bargain agreement when he pled guilty and was sentenced pursuant to the State's multiple offender bill. See Petitioner's § 2254 Petition and Memorandum in Support [Fed.Rec.Doc. No. 1].
The State's response takes the form of two objections, and it further addresses the merits of petitioner's § 2254 application. First, the State objects to Leonard's § 2254 petition as timebarred by the one-year limitation period prescribed by AEDPA since the earliest it can be deemed filed with the Court pursuant to the "mailbox rule" is February 11, 2000 (i.e., petitioner's application to proceed in forma pauperis was dated February 11, 2000). In addition, since the record reflects in no uncertain terms that Louisiana Supreme Court's ruling regarding the legality of claimant's conviction and sentencing rests on independent and adequate state grounds of procedural default, such circumstance precludes federal review. In this vein, the State further argues that the petitioner has not and cannot demonstrate either cause or prejudice for his procedural default, or show that this federal court's failure to review the defaulted claim will result in a "fundamental miscarriage of justice." Finally, and in the alternative, the State submits that even if this Court were to assume the petitioner's claims are not procedurally barred, his factually predicate for claiming constitutional error is factually incorrect (i.e., the state record belies his allegations), and thus, even if this Court were to reach the merits, the petitioner would be entitled to § 2254 relief. See State's Response in Opposition to Granting Habeas Relief, at pp. 1-9 [Fed.Rec.Doc. No. 8]
The state court record in this matter consists of one volume of 160 pages. For ease of reference, the Court has numbered each page in the volume consecutively, one through one hundred sixty. The Court refers the documents in the one-volume state court record by such number, indicated in blue, and positioned at the bottomcenter of each page in the state court record.
Petitioner, David Lambert ("Lambert"), is a state prisoner presently incarcerated at Winn Correctional Center in Winnfield, Louisiana. Petitioner's incarceration is the result of his conviction on two burglary. On October 30, 1996 the petitioner was charged in a two-count bill of information with a violation of LSA-R.S. 14:60 (aggravated burglary) and a violation of LSA-R.S. 14:62.2 (simple burglary of an inhabited dwelling). On March 18, 1997, Leonard pled guilty to both charges, was advised that the State would file a multiple offender bill as to Count 2 only, agreed to plead guilty to the multiple bill, and was sentenced to imprisonment on each counts one and two of the bill of information to imprisonment for ten years, to run concurrently. As to Count 2, his ten year sentence, which was to run concurrently with his sentence on Count 1, was at hard labor with the Department of Corrections (DOC), without the possibility of probation, parole or suspension of sentence. Having waived all delays in sentencing, Leonard was sentenced immediately following his pleas to the original bill of information to ten (10) years on each count to run concurrently, with credit for time served. Leonard was advised in open court at several junctures of the March 18, 1997 Plea/Sentencing Hearing, in no uncertain terms, that any sentence meted out pursuant to Count 2, whether as a result of the March 18, 1997 proceeding or the later multiple bill proceeding on Count 2, would be without the benefit of probation, parole or suspension of sentence. Moreover, while the defendant expressed some displeasure with the fact he would serve "10 years flat" (i.e., no good-time) with respect to Count 2 and that the same sentencing consequence would obtain upon his plea to the multiple bill, he acknowledged that was the case, consistent with his plea bargain, and did in fact plead guilty to the both counts in the bill of information, after being advised by the state attorney and the Court of same. On April 10, 1997, as promised and pursuant to the plea bargain agreement, the State filed a multiple offender bill charging Leonard as multiple offender with respect only to Count 2 (i.e., LSA-R.S. 14:62.2 burglary of an inhabited dwelling). Prior to Leonard's guilty plea to the multiple offender bill he filed a Motion for Production of Documents seeking a copy of the Transcript of the March 18, 1997 plea and sentencing hearing. On July 9, 1997, the state court judge issued its order granting defendant's request for the March 18, 1997 Boykin and sentencing hearing.
See Bill of Information filed October 30, 1996 in the Twenty-Fourth Judicial District Court for the Parish of Jefferson [State Record at 3].
See Defendant's Acknowledgment of Constitutional Rights and Waiver of Rights on Entry of Plea of Guilty in Case Number 96-6534 "J" on the docket of the Twenty-Fourth Judicial District Court for the Parish of Jefferson, Louisiana [State Record at 21-14]; Court Minutes of the March 18, 1997 Rearraignment [State Record at 25]; Transcript of Boykin March 18, 1997 Proceedings before the Honorable Sheldon G. Fernandez [State Record at 105-106].
Id.
Id., at 112.
Transcript of March 18, 1997 Boykin Proceedings before the Honorable Sheldon G. Fernandez [State Record at 101-103, 106-108, 112-113].
See Information for Multiple Bill La.R.S. 15:529.1 charging Frank Leonard filed April 3, 1997 at 10:46 a.m. in the 24th JDC for Parish of Jefferson, Louisiana [State Record at 26].
See Defendant's pro se Motion for Production of documents filed July 2, 1997, along with Defendant's Application and Motion to Proceed in Forma Pauperis [State Record 35-41].
See Order dated July 9, 1997, granting defendant's request for a free transcript of the March 18, 1997 proceedings [State Record at 45, 47].
On August 27, 1997, Leonard waived his rights, pled guilty to the multiple bill consistent with his plea agreement, waived delays requesting immediate sentencing, and was sentenced pursuant to LSA-R.S. 15:529.1, for R.S. 14:62.2, to serve ten (10) years at hard labor, with credit for time served. His original sentence in Case Number 96-6534 with respect to Count 2 was vacated. All of the foregoing was consistent with the advices of the District Attorney and the state court judge at his earlier March 18, 1997 Boykin/Sentencing hearing with respect to the October 30, 1996 Two-Count Bill of Information.
See Court Minutes in Case No. 9606534 "J" on the Docket of the Twenty-Fourth Judicial District Court for the Parish of Jefferson, Louisiana [State Record at 49, 50]; Waiver of Rights Plea of Guilty Multiple Offender executed by the defendant on August 26, 1997 [State Record at 51]; and Transcript of August 26, 1997 Plea and Sentencing on the Multiple Offender Bill [State Record at 85-90].
At the close of the his multiple offender proceedings, the Court specifically advised the defendant on the record of his right to appeal his conviction on the multiple bill within five (5) days of the date his conviction and sentencing with respect to the multiple bill. Leonard did not appeal his multiple offender conviction within five (5) days as advised during the multiple offender plea and sentencing hearing.
See Transcript of August 26, 1997 Plea and Sentencing on the Multiple Offender Bill [State Record at 89-90].
On November 17, 1997, however, Leonard did file a Motion for Out-Of-Time Appeal, for Appointment of Counsel, and Designation of the Record for Appeal in 24th Judicial District Court case numbered 96-6534. The state court judge denied the defendant's requests on November 20, 1997, striking through the proposed orders submitted along with petitioner Motion for Out-of-Time Appeal, writing "DENIED," dating, and signing such ruling with respect to the premises of the aforesaid motion.
See, Defendant's "Out-Of-Appeal" filed November 17, 1997 [State Record at 52-53].
Id., at 53.
Thereafter, the defendant filed numerous motions. On December 17, 1997, Leonard filed a "Motion for Sentencing Minutes" with the sentencing court seeking a free transcript of the August 26, 1997 Multiple Offender plea/sentencing minutes allegedly necessary for the preparation of an application for post-conviction relief.
See Defendant's Motion for Sentencing Minutes filed in 24th JDC Case numbered 96-6534 "J" [State Record at 61].
On January 5, 1998, Leonard filed a "Motion to Enforce Judgement" advising the sentencing court that with respect to his August 26, 1997 conviction as a multiple offender, the department of corrections master file erroneously reflected that he was a third offender as opposed to a second offender, and seeking an order from the state judge correcting the master prison record to reflect a reduction his offender class to second felony offender. The state court record reveals that Leonard's status in the Department of Corrections master file was corrected to reflect his status as a second felony offender.
See Defendant's Motion to Enforce Judgement [State Record at 62-63].
See Department of Corrections Memorandum dated August 5, 1997 addressed to the Defendant advising that his release date was revised to reflect his change in status from third to second offender [State Record at 55].
On March 3, 1998, Leonard filed a "Motion of Appeal" challenging his March 18, 1997 conviction for aggravated burglary (i.e., 14:60) pursuant to the original bill of information which was allegedly vacated necessary for the preparation of an application for post-conviction relief pursuant to his conviction as a multiple offender and arguing that: (1) he was mislead by counsel into pleading guilty to a crime he did not commit; (2) insufficiency of the evidence; (3) ineffective assistance/denial of due process on account of defense counsel's refusal to subpoena a witness who would prove his innocence, and allowing the court to convict on the basis of illegally obtained evidence in as much as it was clear that the arrest warrant was a fabrication; and (4) trial court error in accepting the plea and then vacating that charge and sentencing him on the charge of simple burglary.
The Court here notes that the sentence with respect to Count 2 only (i.e., burglary of an inhabited dwelling R.S. 14:62.2) was the conviction addressed by the defendant's plea bargain agreement and vacated upon the defendant's plea to the multiple offender bill pursuant to such agreement.
See Defendant's "Motion of Appeal" filed March 3, 1998 [State Record at 62].
On March 6, 1998, the sentencing court issued orders ruling with respect to the defendant's December 17, 1997 Motion for Sentencing Minutes that on July 9, 1997, it had previously ordered the transcription of the March 18, 1997 Boykin/Sentencing Transcript and would do so again, and also the court would also order a transcript of the August 26, 1997 Multiple Bill Proceeding. As to the defendant's Motion to Enforce the Judgment, the sentencing judge denied such motion as moot, since the master docket had previously been corrected on August 5, 1997, to reflect the defendant's status as a second offender. Regarding the "Motion of Appeal," filed March 3, 1998 in connection with the August 26, 1997 Multiple Bill Proceedings, such appeal was denied by the state court judge as untimely pursuant to La.C.Cr.P. art. 914, which would only permit appeal of the defendant's conviction/sentence as a multiple offender within five days of the date of that proceeding.
See Order issued March 6, 1998 advising the defendant of the eight month backlog in filling Boykin transcript requests [State Record at 65].
Id.
See Order issued March 6, 1998 [State Record at 65].
On March 3, 1998, the same day the defendant filed the aforesaid "Motion of Appeal," the defendant also filed a "Writ of Mandamus" with the Louisiana Fifth Circuit Court of Appeal claiming that the district court had not acted on his November 13, 1997 Motion for Production of Boykin and Sentencing Transcripts. Considering that on March 6, 1998, the state court judge had in fact acted on the defendant's Motion for Production of Transcripts, his application for writ of mandamus was denied as moot by the Louisiana Fifth Circuit Court of Appeal (Writ No. 98-KH-241).
See Frank Leonard v. 24th Judicial District Court, 98-241 (La.App. 5th Cir. 3/31/98) (unpublished order) [State Record at 74].
On each of the following dates, May 13, 1998 and June 4, 1998, Leonard filed a Motion for Transcript of Habitual Offender Hearing Transcript with the sentencing court, which motions were denied as moot. The state court noted that it had previously ruled on March 6, 1998 regarding the defendant's requests for transcript production. On October 22, 1998, the defendant filed a Motion for Reconsideration of Sentence with the sentencing Court which was denied on October 22, 1998.
See Defendant's Motions for Transcript of the Habitual Offender Proceedings [State Record at 77, 79].
See Order issued July 17, 1998 in case numbered 96-6534 on the docket of the 24th Judicial District Court [State Record at 81, 117].
See Defendant's Motion for Reconsideration of Sentence, filed October 10, 1998, arguing that it was never explained to him that he would have to serve his time flat, nor was he made aware of the law applicable to R.S. 15:529.1 and it was not explained to him by his appointed counsel [State Record at 117].
See October 22, 1998 Order denying defendant's Motion for Reconsideration of Sentence for the stated reason "pursuant to C.Cr.P. art. 881(A) the court [had authority] to amend or change a sentence at hard labor only 'prior to the beginning of the execution of sentence.'" [State Record at 134].
On March 22, 1999, Leonard filed a "Motion to Withdraw his Guilty Plea" to the multiple bill arguing that he pled guilty under a plea bargain agreement, and that the understanding was that his sentence under the multiple bill as a second offender, would be no more onerous than his sentence pursuant to original conviction on the underlying bill of information. [State Record at 144]. The defendant further argued that the sentencing court assured him that his multiple bill sentence would be no different and that since he relied on such materially inaccurate promises by the sentencing court, his plea was invalid. Petitioner also argued that his sentence pursuant to the multiple bill proceeding requires that he serve ten years flat, and that with "good time" his vacated sentence on the underlying bill of information would have only resulted in his serving five (5) years, with good time. Id.
On March 19, 1999, the state court judge issued its order denying the defendant's Motion to Withdraw Guilty Plea finding the defendant not entitled to the relief sought on the merits. [State Record at 157]. In so doing, the state judge recognized its broad discretion with regard to a request to withdraw a guilty plea and further noted applicable law to the effect that "if a defendant's misunderstanding is not induced by or attributed to representations made by the district attorney or the trial court, there is no grounds for invalidating a guilty plea." Id.
On April 16, 1999, the Louisiana Fifth Circuit Court of Appeal, in case numbered 99-KH-427, denied writs, finding that the defendant's application on the trial court's March 19, 1999 ruling disclosed no error.
State of Louisiana v. Frank J. Leonard, 99-427 (La.App. 5th Cir. 4/21/99) (unpublished opinion) [State Record at 155].
On June 3, 1999, Leonard filed a writ application with the Louisiana Supreme Court regarding the March 19, 1999 ruling of the trial court denying his Motion to Withdraw Guilty Plea. [State Record at 159]. On October 29, 1999, the Louisiana Supreme Court denied Leonard's writ application (i.e. No. 99-KH-1590), specifically citing La.C.Cr.P. art. 930.3 and State v. Melinie, 665 So.2d 1172 (La. 1996) as authority for doing 50. [State Record at 160].
State ex rel. Frank J. Leonard, 748 So.2d 1160 (La. 10/29/99).
As previously mentioned the instant petition for federal habeas corpus relief, claims error on the part of the district court for imposing a multiple offender sentence on August 26, 1997 that was allegedly harsher than the one agreed upon and refusing to allow the withdrawal of his August 26, 1997 guilty plea which was allegedly not knowing or voluntary because it was allegedly induced by the sentencing court "s allegedly materially inaccurate statement about his multiple offender sentence. Petitioner claims that his counsel, the district attorney and the sentencing court informed him that he would be eligible for good time credit (i.e., he would not serve 10 years flat) upon adjudication as a multiple offender. Essentially, petitioner claims denial of his constitutional right to due process of law in violation of the 14th Amendment.
See Petitioner's Memorandum in Support of Writ of Habeas Corpus at pp. 1-5 [Fed.Rec.Doc. No. 1].
ANALYSIS OF CLAIMS
A. TIME BAR
A federal habeas application must be filed in accordance with the requirements of Title 28, United States Code, § 2244(d), as amended by the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), Pub.L. No. 104-132, 110 Stat. 1217. Generally, the AEDPA requires that a petitioner bring his § 2254 claims within one year of the date his conviction became final.
The AEDPA applies to this case since it was filed after the enactment of the AEDPA.
As previously mentioned, the State challenges the timeliness of Leonard's petition under § 2244(d)(1) of the AEDPA. The Act provides a one year grace period from the date a conviction became final for timely filing a habeas petition.
Specifically, under the amended Section 2244(d), (d)(1) a 1-year period of limitation shall apply to an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State court. The limitation period shall run from the latest of —
(A) the date on which the judgment became final by conclusion of direct review or the expiration of the time for seeking such review; (B) the date on which the impediment to filing an application created by State action in violation of the Constitution or laws of the United States is removed, if the applicant was prevented from filing by such State action; (C) the date on which the constitutional right asserted was initially recognized by the Supreme Court and made retroactively applicable to cases on collateral review; or (D) the date on which the factual predicate of the claim or claims presented could have been discovered through the exercise of due diligence.28 U.S.C. § 2244(d)(1). Also, subsection 2244(d)(2) provides that "[t]he time during which a properly filed application for State post-conviction or other collateral review with respect to the pertinent judgment or claim is pending shall not be counted toward any period of limitation under this subsection." 28 U.S.C. § 2244(d)(2); see also Flanagan v. Johnson, 154 F.3d 196, 198 (5th Cir. 1998).
Preliminarily this Court must determine the date upon which Leonard's judgment of conviction became final. The procedural background based on the state record in this matter, shows that petitioner pled guilty to the multiple offender bill and was resentenced on August 26, 1997. The state record in this matter reflects that the Leonard did not appeal seek an appeal on his August 26, 1997 conviction or sentence, and thus, his conviction became final on that date.
La.C.Cr.P. art. 914 provides the method and time of appeal, as follows: A. Motion for an appeal may be made orally in open court or by filing a written motion with the clerk. The motion shall be entered in the minutes of the court. B. The motion for an appeal must be made no later than: (1) Five days after the rendition of the judgment or ruling from which the appeal is taken. (2) Five days from the ruling on a motion to reconsider sentence filed pursuant to Article 881.1 should such a motion be filed. Id. La.C.Cr.P. art. 881.1 provides that "[w]ithin thirty days following the imposition of sentence or within such longer period as the trial court may set at sentence, the state or the defendant may make or file a motion to reconsider sentence." Id. The state record in the case at bar reflects that Leonard neither filed a motion for appeal was filed within five (5) days of his August 26, 1997 habitual offender sentence nor motion to reconsider consistent with the dictates of article 881.1. The state record further reflects that Leonard was advised in open court on the record at the time of his conviction and sentence on the multiple offender bill of his right to appeal his conviction on the multiple bill within five (5) days of the date his conviction on the multiple bill. See Transcript of August 26, 1997 Boykin/Sentencing on the Multiple Offender Bill [State Record at 89-90].
Under the AEDPA, Leonard had until August 1998 to file his application for federal habeas corpus relief, unless this time period was tolled by "a properly filed application for State postconviction or for other collateral review with respect to the pertinent judgment or claim" such that the time pending such application would not be counted toward the limitation period prescribed by § 2244(d)(2).
On November 14, 1997, Leonard did file, however improperly, a Motion for Out-Of-Time Appeal, for Appointment of Counsel, and Designation of the Record for Appeal in 24th Judicial District Court case numbered 96-6534. It was denied on by the state court on November 20, 1997. The foregoing filing did not toll the limitations period prescribed by the AEDPA.
See Defendant's Motion for "Out-Of-Appeal" and proposed order granting same filed November 17, 1997 [State Record at 52-53].
See November 20th Order denying defendant's motion for out-of-time appeal [State Record at 53].
As previously discussed in the procedural history of the state court proceedings, Leonard then filed a barrage of motions, to wit: (1) a motion for sentencing minutes on December 17, 1997; and (2) a motion to enforce judgment of sentence on January 28, 1998. Neither of these state court filings tolled the limitations period.
On March 3, 1998 Leonard filed a "Motion of Appeal" this time challenging his March 1997 conviction on the original bill of information, as well as his August 26, 1997 multiple offender sentence. The March 3, 1998 motion for appeal was denied as untimely pursuant to the provisions of La.C.Cr.P. article 914. Leonard's March 3, 1998 Motion of Appeal did not toll the limitation period because it was not a "properly filed" motion for the purposes of § 2244(d)(2).
[State Record at 62].
See Order issued March 6, 1998 [State Record at 65].
The state record reflects that Leonard's next motion seeking collateral review was a "Motion to Withdraw Guilty Plea" filed March 9, 1999 — that was well-beyond the one-year limitations period. The Court agrees with the State's argument (i.e., there was no properly filed applications for state post-conviction relief or for other collateral review which would toll the one-year limitations period prescribed by the AEDPA). Therefore, Leonard's petition for § 2254 relief is procedurally barred from review. Additionally, petitioner has not suggested any actual basis which would support equitable tolling of the one-year limitations period.
B. AEDPA STANDARDS.
Even if the petitioner's claims were not deemed time-barred, and make no mistake, they are, deference owed to the state court determination of the issue would similarly preclude relief. The United States Fifth Circuit Court of Appeals addressed the AEDPA's standard of review for issuing habeas relief in state court cases in Knox v. Johnson, 224 F.3d 470, 475 (5th Cir. 2000), as follows:
Under the AEDPA, we may not issue a writ of habeas corpus with respect to "any claim that was adjudicated on the merits in State court proceedings" unless the State court's highest adjudication of the claim resulted in "a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court . . .; or 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." 28 U.S.C. § 2254(d). As the Supreme Court has recently explained, 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] Court has on a set of materially indistinguishable facts." Williams v. Taylor, ___ U.S. ___, 120 S.Ct. 1495, 1523, 146 L.Ed.2d 389 (2000). We may issue a writ based on the State Court's unreasonable application of Federal law only "if the state court identifies the correct governing legal principal . . . but unreasonably applies that principle to the facts of the prisoner's case." Id. We presume state court factual findings to be correct and will defer to these findings "unless they were "based on an unreasonable determination of the facts in light of the evidence presented in the state court proceeding.'" Chambers v. Johnson, 218 F.3d 360, 363 (5th Cir. 2000) (quoting 28 U.S.C. § 2254(d)(2)).
C. PROCEDURAL BAR
Petitioner has exhausted his state court remedies with regard to the issues presented in his federal petition for habeas relief. The state court record reflects that the petitioner has raised his challenges with respect to his pleas/multiple offender sentence in a state post-conviction application filed with the Louisiana Supreme Court. That court, however, refused to consider the merits of the petitioner's claims on the basis of Louisiana Code of Criminal Procedure article 930.3 and Melinie v. State, 665 So.2d 1172 (1996). This Court is of the opinion that federal habeas review is barred by virtue of petitioner's procedural default of the claim in state court.
In Melinie, supra, the Louisiana Supreme Court, relying on article 930.3, ruled that claims of an excessive sentence or other sentencing errors which should be raised on direct appeal cannot be raised in state post-conviction proceedings. In State v. Hebreard, 708 So.2d 1291 (La.App. 4th Cir. 1998), the Louisiana Fourth Circuit Court of Appeal, interpreting Melinie held that challenges to multiple offender adjudications are not appropriate grounds for consideration on post-conviction review under Article 930.3.
Generally, a federal court will not review a question of federal law decided by state court, if that decision rests on a state ground that is both independent of the federal question and adequate to support the judgment. Amos v. Scott, 61 F.3d 333, 338 (5th Cir. 1995), cert. denied, 116 S.Ct. 557 (1995) ( citing Harris v. Reed, 489 U.S. 255, 260 (1982)). This rule applies whether the state law ground is procedural or substantive. Coleman v. Thompson, 111 S.Ct. 2546, 2554 (1991). The Coleman Court explained:
In the context of direct review of a state court judgment, the independent and adequate state ground is jurisdictional. Because this Court has no power to review a state court determination that is sufficient to support the judgment, resolution of any independent federal ground for the decision would not affect the judgment and would therefore be advisory. See Herb v. Pitcairn, 324 U.S. 117, 125-26, 65 S.Ct. 459, 462-464 (1945) ("We are not permitted to render an advisory opinion, and if the same judgment would be rendered by the state court after we corrected its views of federal laws, our review would amount to nothing more than an advisory opinion").Id.
The independence requirement is fulfilled when the last state court rendering a judgment in a case "clearly and expressly" indicates that its judgment is independent of federal law and rests on a state procedural bar. Amos, 61 F.3d at 338; Harris, 489 U.S. at 263. In denying petitioner's application in the case at bar, the Louisiana Supreme Court expressly relied on Melinie, supra, and Article 930.3's prohibition against bringing sentencing claims in post-conviction applications. The Louisiana Supreme Court's holding suffices to fill the independence requirement described above.
The state procedural rule must also be "adequate." An "adequate" rule is one that the state courts strictly and regularly follow, and one that is applied evenhandedly to the vast majority of similar claims. Clover v. Cain, 128 F.3d 900, 902 (5th Cir. 1997) (citing Amos, 61 F.3d at 339). A state procedural rule enjoys a presumption of adequacy when the state court expressly relies upon it in deciding not to review a claim for collateral relief. Id. (citing Lott v. Hargett, 80 F.3d 161, 165 (5th Cir. 1996).
Review of Louisiana Supreme Court cases since the decision of Melinie, supra, establishes that the Louisiana Supreme Court has regularly invoked the statutory procedural bar and the Melinie decision to bar review of claims not cognizable under Article 930.3. Moreover, petitioner does not suggest that the statute has not been evenhandedly applied. Accordingly, this Court finds that the statute is adequate to bar federal review of petitioner's claims in the instant case. Because there are adequate and independent state grounds to support the rulings of the state courts, including the Louisiana Supreme Court, petitioner's federal writ of habeas is barred unless he show cause for the procedural default and actual prejudice. See Coleman v. Thompson, 111 S.Ct. 2546, 2553-54 (1991).
D. CAUSE AND PREJUDICE
Under Coleman, supra, if a petitioner can show cause for the default and actual prejudice as a result of the alleged violation of federal law, or demonstrate that failure to consider the claim will result in a "fundamental miscarriage of justice," the petitioner may overcome procedural default. Coleman, 111 S.Ct at 2564. To demonstrate cause, the petitioner must prove that some condition external to the defense impeded his efforts to comply with the procedural rules, that the factual or legal basis of a claim was not available to counsel, or that governmental interference rendered procedural compliance impractical. Murray v. Carriere, 106 S.Ct. 2639, 2645 (1986).
Petitioner has failed to show such "cause" for his procedural default, which occurred when he failed to raise his claims on direct appeal. The record reflects that petitioner did not timely file an appeal of either his March 1997 conviction on the underlying simple burglary of an inhabited dwelling or his August 1997 multiple offender conviction, despite the fact that he was advised by the state trial court at the appropriate juncture of the plea/sentencing proceedings that he had five (5) days to do so from the date of such proceedings.
Additionally, the Court can divine no "actual prejudice" from its review of the entirety of the record in this matter. As to a "fundamental miscarriage of justice," such would exist in extraordinary circumstances where the constitutional violation has possibly resulted in the conviction of an individual who is actually innocent. Murray, 106 S.Ct. at 2645. Petitioner's innocence argument pales when juxtaposed to the facts that he pled guilty not once, but twice (i.e., to the original bill of information and to the multiple offender bill). The Court further notes that a matter of five-months intervened between such Boykin/sentencing hearings conducted by the state trial court. The Court further observes that five months post-sentencing on the multiple offender adjudication, Leonard filed a Motion to Enforce the Judgment. Simply stated, actual innocence is a non sequitur. For all of the forgoing reasons, this Court is convinced that federal habeas review is foreclosed.
E. THE MERITS
In any event, as the State suggests, the record in this case belies petitioner's allegations of fact, upon which his constitutional claims are based. Both the transcript of the August 26, 1997 multiple offender proceeding and the transcript of the March 18, 1997 boykinization hearing and sentencing on the substantive counts have been filed as part of the state record in this matter.
[State Record at 85-115].
The transcript of Leonard's initial pleas/sentencing on March 18, 1997 reflects that petitioner was thoroughly boykinized and accurately advised regarding the consequences of his plea to Count 2 (i.e., simple burglary of an inhabited dwelling), and as to his forthcoming plea to the multiple offender bill that the State would file. With respect to the former (i.e., his plea to Count 2 of the Bill of Information), Leonard was advised that his sentence would be ten years and that sentence was without the benefit of probation, parole, or suspension of sentence. The district attorney pointed out to the Court and the defendant that "the original sentence [on] burglary of an inhabited dwelling is without the benefit of parole, probation or suspension of sentence" and "any sentence under the burglary of an inhabited dwelling has to be without benefits." [State Record at 101-02]. Leonard then queried, "That means I would have no good time or nothing? I have to do flat time on this charge?" [State Record at 102]. At that point the state judge set the record completely straight and advised the defendant that the Department of Corrections is in charge of computation of time and that he had no control over that, and he could not tell the defendant anything or promise him whether or not he would get good time. The state judge stated emphatically, "I just can't do that. It is strictly up to the discretion of the Department of Corrections. And we have to tell every defendant that comes in here the same thing, not just you, everybody." [State Record at 102]. There was no promise made by the state judge as to how his time would be computed by the DOC. The defendant was, however, advised that the 10-year sentence the state court would impose as Count 2 would be without probation, parole and suspension of sentence (i.e., "flat time") and that what the DOC did with that sentence, as far as any computation went, the state judge had no control over it.
Then, the district attorney again advised that for "simple burglary of an inhabited dwelling, [L.R.S. 14:]62.2, the original sentence is without benefit of parole, probation or suspension of sentence" and "whatever sentence the judge gives under 62.2 has to be without those benefits." [State Record at 103]. The Court told the defendant again that the sentence he would give him that day (i.e., ten years) would be at hard labor and his sentence with respect to Count 2 "has to be without the benefit of probation, parole or suspension of sentence." [State Record at 104]. The defendant acknowledged the Court's advices stating, "Yes, sir." Id.
Then addressing the defendant's plea bargain in connection with his agreement to plead guilty to the multiple offender bill that the state would file only as Count 2, the state judge advised the defendant that when he returned to plead to the multiple offender bill, the court would vacate the sentence on Count 2 and "resentence him to ten years at hard labor with the Department of Corrections." [State Record at 106].
The state judge most apparently wanted to make certain that nothing said during the hearing could possibly be construed as to any promise by the court, as to how the ten year sentence to be rendered would be executed by the DOC. The state judge again reminded the defendant, that he could not tell the defendant how the DOC would compute his sentence, and that matter (i.e., computation of the sentence) was strictly up to the DOC. [State Record at 107].
Then, "not want[ing] [Leonard] to be fooled into thinking he's going to get good time when he's not if he's agreeing to plead to a multiple bill" and to make absolutely certain that "the defendant was clear on this" the district attorney again stated: "the ten years on the bill is going to be a ten year flat sentence because under the multiple offender bill he's not entitled to good time . . . and the defendant needs to know that." [State Record at 107]. The defendant expressed his complete understanding of the consequences, noting his displeasure with such a ten-year flat sentence pursuant to his forthcoming multiple offender adjudication. [State Record at 108].
Nevertheless, Leonard pled guilty, and he did so fully informed regarding his rights, the consequences of his pleas in that proceeding, the consequences of his promised plea to the multiple bill, and knowing that the state court judge could not, would not, and did not make any promises regarding how the DOC would compute his time on any of the ten-year sentences. After admitting the factual bases for the crimes charged in Counts 1 and 2 of the Bill of Information, the state judge asked Leonard whether he had anything else he wished to say. The petitioner's response was to thank the state judge and his attorney, followed by his statement: "I'm agree[ing] with everything." [State Record at 111].
At the August 26, 1997 multiple bill proceeding, the Court asked the defendant if he understood that the sentence he would receive upon his plea would be ten years with the Department of Labor at hard labor with credit for time served and Leonard stated, "Yes, sir." [State Record at 88]. Leonard again pled guilty, this time to the multiple bill.
Petitioner's claims on the merits depart significantly from what the record demonstrates is factually correct. The state court transcripts of the pertinent plea and sentencing proceedings demonstrate that a factual predicate for Leonard's federal habeas claims of constitutional error is completely absent. There were no promises made by anyone as to how either 10-year sentence would be computed by the DOC. Leonard was informed in no uncertain terms that both his 10-year sentence on Count 2 and his later replacement multiple offender 10-year sentence, would be without probation, parole or suspension of sentence (i.e., flat time), and how the DOC computed those identical sentences would be entirely up to the DOC and could not/would not be foretold state judge, or anyone else for that matter.
Leonard's March 18, 1997 Count 2 sentence and his later substituted August 26, 1997 multiple offender sentence were in fact rendered by the state judge identically, both to run concurrent with sentence as to Count 1 on the bill of information, and in both instances he was given credit for time served. That was the deal and the deal was done. The federal habeas claims are meritless.
Accordingly, and for all of the above and foregoing reasons,
IT IS ORDERED that the application of Frank J. Leonard for relief pursuant to § 2254 is hereby DENIED, and his petition is DISMISSED WITH PREJUDICE as time-barred and/or otherwise procedurally defaulted.