Opinion
Civil Action No. 05-0957, Section P.
July 12, 2005
REPORT AND RECOMMENDATION
Before the court is a petition for writ of habeas corpus filed on June 2, 2005, by pro se petitioner, Eric Petry, pursuant to 28 U.S.C. § 2254. Petitioner is an inmate incarcerated at the South Louisiana Correctional Center in Basile, Louisiana. Petitioner challenges his 1990 conviction for Simple Arson which was entered in the 15th Judicial District Court, for Vermilion Parish under docket number 26759.
Petitioner was incarcerated at the Lafayette Parish Correctional Center when he filed his petition.
LAW AND ANALYSIS
Petitioner admits that he attacked this same conviction in a previous federal petition for writ of habeas corpus filed in this court on September 19, 1996. [rec. doc. 1, ¶ 8(a) and (b); Court Exhibit 1, Docket Sheet Eric Petry v. Warden, Avoyelles Correctional Center, Civil Action Number 6:96-cv-02222]. That petition for federal habeas corpus relief was denied and dismissed with prejudice by Judge Melancon on January 30, 1998 following a response by the State of Louisiana and a Report and Recommendation by Magistrate Judge Tynes. [Court Exhibit 2, Report and Recommendation].
In this petition, Petry claims that his plea was invalid because the State failed to file a Bill of Information or an Indictment prior to his plea, that he was denied due process and equal protection of the law when the judge and prosecutor failed to recuse themselves on grounds that they had a personal interest in the crime committed by petitioner, and that his counsel was ineffective because counsel allowed petitioner to plead guilty to simple arson before he was formally charged with that crime.
Petitioner apparently set fire to the Vermilion Parish Courthouse.
Petitioner admits that these claims are unexhausted. [rec. doc. 1, ¶ 8]. However, he requests that this court excuse his lack of exhaustion because he has no procedural vehicle by which he can present these claims to the Louisiana state courts because the statute of limitations on filing for post-conviction relief has expired and because of his alleged ignorance of the law. In light of the above, the undersigned will not reach petitioner's arguments.
The instant petition is a clearly a second and successive petition under 28 U.S.C. § 2244. AEDPA does not define what constitutes a "second or successive" petition. However, decisions of the United States Fifth Circuit Court of Appeals provide guidance in determining when a § 2255 petition should be considered second or successive for purposes of § 2244(b)(3). A prisoner's petition is not second or successive simply because it follows an earlier federal petition. In Re Cain, 137 F.3d 234, 235 (5th Cir. 1998). Rather, a later petition is successive when it: "1) raises a claim challenging the petitioner's conviction or sentence that was or could have been raised in an earlier petition; or 2) otherwise constitutes an abuse of the writ." Id. Thus, the provision has been described as "modified res judicata rule" which bars claims which were ripe for disposition at the time the original petition was filed, but which were inexcusably not raised in that earlier petition. United States v. Orozco-Ramirez, 211 F.3d 862, 868-871 (5th Cir. 2000). Such claims are deemed second or successive. Id. The Fifth Circuit has also found that "an application filed after a previous application was fully adjudicated on the merits is a second or successive application within the meaning of 28 U.S.C. § 2244(b), even if it contains claims never before raised." Graham v. Johnson, 168 F.3d 762, 774 fn. 7 (5th Cir. 1999) citing Felker v. Turpin, 518 U.S. 651, 655-58, 662-63, 116 S.Ct. 2333, 135 L.Ed.2d 827 (1996). Thus, the Fifth Circuit has suggested a focus of the inquiry is whether in the prior petition, the petitioner received an adjudication on the merits of his claims.
Clearly, under either standard, the instant petition is second and successive. The claims raised herein could have been raised in the earlier petition. Moreover, petitioner's prior petition was adjudicated on the merits and denied and dismissed with prejudice by this court. Hence, the instant petition is unquestionably second and successive.
Before this petition may be considered by this court, petitioner is required to obtain authorization to file this second or successive petition from the Fifth Circuit in accordance with 28 U.S.C. § 2244(b)(3)(A) which provides in part, "[b]efore a second or successive application permitted by this section [§ 2254] is filed in the district court, the applicant shall move in the appropriate court of appeals for an order authorizing the district court to consider the application." The record does not show that petitioner has received such authorization. Until such time as petitioner obtains said authorization, this court is without jurisdiction to proceed. Hooker v. Sivley, 187 F.3d 680, 682 (5th Cir. 1999); United States v. Key, 205 F.3d 773, 774 (5th Cir. 2000); Crone v. Cockrell, 324 F.3d 833, 836 (5th Cir. 2003).
Title 28 U.S.C. § 2244 does not direct the district court to take any specific action when a second or successive petition is presented without authorization under § 2244(b)(3); nor does the statute provide a specific procedure for the district court to follow when presented with such a petition. However, in In Re Epps, 127 F.3d 364 (5th Cir. 1997), the Fifth Circuit suggested that the transfer of second or successive habeas corpus petitions to the Fifth Circuit for consideration under § 2244 is proper. Thus, the court finds that this petition should be transferred to the Fifth Circuit for consideration under § 2244. Accordingly;
IT IS RECOMMENDED that the instant petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254 be TRANSFERRED to the United States Court of Appeals for the Fifth Circuit in accordance with 28 U.S.C. § 2244(b)(3) for further proceedings by that Court.
Under the provisions of 28 U.S.C. Section 636(b)(1)(C) and Rule 72(b), parties aggrieved by this recommendation have ten (10) business days from service of this report and recommendation to file specific, written objections with the Clerk of Court. A party may respond to another party's objections within ten (10) days after being served with a copy of any objections or response to the district judge at the time of filing.
Failure to file written objections to the proposed factual findings and/or the proposed legal conclusions reflected in this Report and Recommendation within ten (10) days following the date of its service, or within the time frame authorized by Fed.R.Civ.P. 6(b), shall bar an aggrieved party from attacking either the factual findings or the legal conclusions accepted by the District Court, except upon grounds of plain error. See, Douglass v. United Services Automobile Association, 79 F.3d 1415 (5th Cir. 1996).
THUS DONE AND SIGNED.
UNITED STATES DISTRICT COURT WESTERN DISTRICT OF LOUISIANA LAFAYETTE-OPELOUSAS DIVISION
ERIC PETRY * CIVIL ACTION NO. 96-2222VERSUS * JUDGE MELANCON
WARDEN, BARON KAYLO * MAGISTRATE JUDGE TYNES
REPORT AND RECOMMENDATION
Pending before the undersigned for report and recommendation is the petition for writ of habeas corpus filed by pro se petitioner, Eric Petry ("Petry"), pursuant to 28 U.S.C. § 2254, on September 19, 1996. Petry, currently incarcerated in the Avoyelles Correctional Center, names Warden Baron Kaylo (the "Warden") as respondent. The Warden, through Calvin E. Woodruff, Jr., District Attorney of the 15th Judicial District Court, Parish of Vermilion, has filed opposition.
BACKGROUND
Petry was convicted of one count of arson and two counts of simple burglary in the 15th Judicial District Court, Vermilion Parish, Louisiana. Petry entered a guilty plea on December 18, 1990, and was sentenced to five years imprisonment on each count of simple burglary to run consecutive to a sentence of fifteen years imprisonment on the arson conviction, for a total of twenty years imprisonment.
Petry filed his first application for post-conviction relief on June 27, 1991, asserting that the trial court was not impartial in sentencing, that his sentence was excessive, and that he had ineffective assistance of counsel. (R., pp. 35-50). The trial court denied the application on July 29, 1991. (R., p. 67). Petry then filed a writ application with the state Court of Appeal, Third Circuit, which denied the application on February 21, 1992. (R., p. 81). A subsequent writ application filed with the Louisiana Supreme Court was denied on February 19, 1993. (R., p. 128).
Petry filed a second application for post-conviction relief with the trial court, asserting that his plea was not knowingly and voluntarily made. (R., pp. 134-154). The trial court denied the application on January 11, 1994. (R., p. 133). Writs were denied by the Court of Appeal, Third Circuit, on August 18, 1994. (R., p. 157).
In this petition, Petry presents three grounds for relief: (1) ineffective assistance of counsel; (2) excessive sentence; and (3) denial of due process through selective and vindictive prosecution. Petry concedes that the third ground has not previously been submitted to any court for review. Respondent has raised the defense of procedural default as to this claim. (Document No. 13, ¶ 14).
LAW AND ANALYSIS Standards for Habeas Corpus
The Antiterrorism and Effective Death Penalty Act (AEDPA), 110 Stat. 1214, signed into law on April 24, 1996, enacted the present 28 U.S.C. § 2254, which applies to noncapital cases filed after the statute's enactment. Lindh v. Murphy, ___ U.S. ___, 117 S.Ct. 2059, 2062, 138 L.Ed.2d 481 (1997). Section 2254(d) provides as follows:
(d) An application for writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim —
(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; 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.
Section 2254(e)(1) provides as follows:
In a proceeding instituted by an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State court, a determination of a factual issue made by a State court shall be presumed to be correct. The applicant shall have the burden of rebutting the presumption of correctness by clear and convincing evidence.
As Petry's application was filed on September 19, 1996, the amended version of § 2254 applies to this case.
Ineffective Assistance of Counsel Claims
To prevail on an ineffective assistance of counsel claim, a petitioner must establish that (1) his attorney's representation fell below an objective standard of reasonableness; and (2) there is a reasonable probability that, but for counsel's deficient performance, the outcome of the proceedings would have been different. Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). The burden is on the petitioner to show that counsel's representation fell below an objective standard of reasonableness. Id. at 688. The court's scrutiny should be "highly deferential" and the court must apply "a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance." Id. at 689-690; Marler v. Blackburn, 777 F.2d 1007, 1010 (5th Cir. 1985).
The court further outlined the extent of prejudice that must be established by the defendant:
An error by counsel, even if professionally unreasonable, does not warrant setting aside the judgment of the criminal proceeding if the error had no effect on the judgment. Cf., United States v. Morrison, 449 U.S. 361, 364-365 (1981).
Defendant must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability exists if the probability is sufficient to undermine confidence in the outcome.
When a defendant challenges a conviction, the question is whether there is reasonable probability that absent the errors the fact-finder would have a reasonable doubt respecting guilt.Strickland, supra, at pages 691, 694-695; see also Taylor v. Maggio, 727 F.2d 341 (5th Cir. 1984); U.S. v. Diaz, 733 F.2d 371 (5th Cir. 1984). A habeas court must be careful not to second guess legitimate strategic choices made by defense counsel which under the light of hindsight seem ill-advised and unreasonable. Sawyer v. Butler, 848 F.2d 582, 587-588 (5th Cir. 1988).
In Lockhart v. Fretwell, 506 U.S. 364, 113 S.Ct. 838, 122 L.Ed.2d 180 (1993), the Supreme Court noted that an analysis solely based on an outcome determination, without determining whether the result of the proceeding was fundamentally unfair or unreliable, is defective. "Unreliability or unfairness does not result if the ineffectiveness of counsel does not deprive the defendant of any substantive or procedural right to which the law entitles him." Id. In Armstead v. Scott, 37 F.3d 202, 207 (5th Cir. 1994), cert. denied, 514 U.S. 1071, 115 S.Ct. 1709, 131 L.Ed.2d 570 (1995), the Fifth Circuit stated that it readsLockhart v. Fretwell to require "a rather appreciable showing of prejudice," and further, "[i]f an appreciable showing of prejudice is required in the capital context, a requirement for a showing of significant prejudice applies a fortiori in the noncapital context." See also, Spriggs v. Collins, 993 F.2d 85, 88, n. 4 (5th Cir. 1993).
Because both Strickland factors, that of deficient performance and prejudice, must be satisfied, "an ineffective assistance contention may be rejected on an insufficient showing of prejudice, without inquiry into the adequacy of counsel's performance." Strickland, 466 U.S. at 689-94. Petitioner must satisfy both prongs of Strickland.
The undersigned will proceed with an examination of petitioner's allegations of ineffective assistance of counsel by applying the factors enunciated in Strickland. Most of Petry's arguments relating to the ineffectiveness of his counsel, Linda Veazey, concern the voluntariness of Petry's guilty plea. Specifically, Petry asserts that counsel was ineffective for: (1) allowing him to waive arraignment; (2) allowing him to plead guilty without being informed by the state of his exact sentence; (3) failing to negotiate with the state concerning a stipulated plea agreement; (4) failing to request a change of venue; (5) failing to request a pre-sentence investigation; (6) allowing him to plead guilty two weeks after being arrested; (7) failing to request time to investigate and properly prepare a defense; and (8) allowing petitioner to be subjected to selective and vindictive prosecution.
Failure to obtain a voluntary plea
Petry's primary contention is that his guilty plea was not knowingly and intelligently made. A review of the transcript from the hearing on the guilty plea dated December 18, 1990, reflects that the trial judge conducted a complete "Boykinization" of Petry. Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969). The trial judge first asked Petry whether it was his wish to change his plea from not guilty to guilty to the three crimes, to which Petry responded, "Yes, sir." (R, pp. 19-20). After asking Petry some background questions concerning his education, work experience, and physical and mental condition, the judge determined that Petry was competent. (R., pp. 230-23). He then questioned Petry as to whether his attorney had explained that he would be waiving constitutional rights by pleading guilty, to which Petry answered, "Yes, sir." (R., p. 23). When asked whether Petry was satisfied with the advice and representation given to him, Petry responded affirmatively. (R., p. 24).
The trial judge then defined the charges against Petry and described the penalties. (R., pp. 25-26). After explaining the statutes for simple burglary and simple arson, the trial judge asked Petry whether he understood the charges and penalties, to which Petry responded, "Yes, sir." (R., pp. 24-26). The trial judge then listed the rights that Petry would be waiving by pleading guilty. After describing each right, the judge asked Petry whether he understood that he would be waiving that right, to which Petry responded as to each, "Yes, sir." (R., pp. 26-28).
Next, the trial judge asked Petry whether he understood the plea agreement and agreed to it, to which Petry answered, "Yes, sir." (R., pp. 28-29). He asked whether anyone had made any promises or representations to him, or had made any threats or promises to coerce him to plead guilty, to which Petry answered, "No, sir." (R., p. 29). The District Attorney then stated the factual basis for the offenses for which Petry was charged. (R., pp. 31). Petry admitted the facts as stated, and admitted that he committed the crimes for which he was charged. (R., p. 31).
The trial judge then asked whether Petry's attorney had discussed with him in detail everything contained in the plea agreement forms, and had read and signed them in her presence, to which Petry responded, "Yes, sir." (R., p. 31). Petry further indicated that he understood everything contained in the plea forms. (R., p. 31). When the trial judge asked whether Petry fully understood the nature of the guilty plea and whether he voluntarily pleaded guilty to the three charges, Petry responded, "Yes, sir." (R., p. 32).
The undersigned has reviewed the entire transcript of the guilty plea hearing, and found no merit to Petry's arguments that counsel was ineffective for failing to advise him of the consequences of pleading guilty or of the prescribed penalties against him. Petry admitted both in open court and in the written plea forms that he had been informed of and understood the charges to which he was pleading guilty and the penalties which were being imposed. (R., pp. 13, 17, 32). Contrary to Petry's contention, the plea forms described the exact terms of Petry's sentence. He admitted that his attorney explained the terms of the plea agreement with him prior to the hearing. (R., p. 31). Petry admitted in open court that he was satisfied with the advice given to him by his attorney and that he was not coerced into accepting the plea agreement. (R., pp. 24, 29).
In the context of a guilty plea, a petitioner must show that "there is a reasonable probability that, but for counsel's errors, he would not have pleaded guilty and would have insisted on going to trial." Hill v. Lockhart, 474 U.S. 52, 59, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985). In regard to the performance factor of the Strickland test, "if a defendant is represented by counsel and pleads guilty upon the advice of counsel, the voluntariness of the plea depends on whether counsel's advice was within the range of competence demanded of attorneys in criminal cases." Armstead v. Scott, 37 F.3d at 206 (internal quotation marks and citation omitted). In regard to the prejudice factor, a petitioner must prove that but for counsel's erroneous advice, he would have insisted on going to trial. Id.; Carter v. Collins, 918 F.2d 1198 (5th Cir. 1990). "Simply alleging prejudice will not suffice." Mangum v. Hargett, 67 F.3d 80 (5th Cir. 1995).
The record reflects that the trial judge conducted a sufficient inquiry of Petry and determined that his plea was knowingly and voluntarily given. Petry has neither shown that his attorney's representation fell below an objective standard of reasonableness in advising Petry to accept the plea agreement, nor that there was a reasonable probability that, but for counsel's deficient performance, the outcome of the proceedings would have been different. Strickland, supra. Accordingly, this claim is without merit.
Failure to Properly Investigate
Petry also contends that his attorney failed to request a pre-sentence investigation and failed to request time to investigate in order to prepare a proper defense. A petitioner who alleges a failure to investigate on the part of his counsel must also allege with specificity what the investigation would have revealed and how it would have altered the outcome of the trial. Nelson v. Hargett, 989 F.2d 847, 850 (5th Cir. 1993); United States v. Green, 882 F.2d 999 (5th Cir. 1989);Alexander v. McCotter, 775 F.2d 595 (5th Cir. 1985). Petry has given no indication whatsoever what an investigation would have revealed that could have aided his defense or mitigated his sentence. Accordingly, this claim lack merit.
Failure to Request Change of Venue
Petry also argues that counsel was ineffective for failing to request a change of venue in the trial court. Recently, in Sharp v. Johnson, 107 F.3d 282 (5th Cir. 1997), the Fifth Circuit considered a habeas petitioner's argument that counsel was ineffective due to his failure to move for a change of venue. In concluding that counsel's performance was not deficient, the court considered as a factor "the deference customarily owed to the tactical decisions of trial counsel in jury selection." Id. at 287.
Here, Petry has failed to show that any publicity was inflammatory and that it resulted in pervasive community prejudice. Duncan v. United States, 919 F.2d 981, 985 (5th Cir. 1990), cert. denied, 500 U.S. 926, 111 S.Ct. 2036, 114 L.Ed.2d 121 (1991). Absent such a showing, and given the deference owed to the tactical decisions of trial counsel in jury selection, the undersigned cannot conclude that trial counsel's performance was deficient.
Excessive Sentence
Petry next contends that the twenty-year sentence constitutes excessive punishment. He argues that the sentencing judge never stated the factual basis for the sentence, and did not consider any aggravating or mitigating factors, such as his first-offender status. He asserts that the court gave a lesser sentence to his co-defendant, although his co-defendant pled guilty to the same charge.
In Solem v. Helm, 463 U.S. 277, 103 S.Ct. 3001, 77 L.Ed.2d 637 (1983), the Supreme Court held that the following objective criteria must be examined to determine whether a sentence is excessive under the Eighth Amendment: (1) the gravity of the offense and the harshness of the penalty, (2) a comparison of the sentence in question to sentences for other crimes in that jurisdiction, and (3) a comparison of the petitioner's sentence with sentences imposed for the same crime in other jurisdictions. Id., 463 U.S. at 292, 103 S.Ct. at 3011. In Harmelin v. Michigan, 501 U.S. 957, 111 S.Ct. 2680, 115 L.Ed.2d 836 (1991), the Supreme Court overruled a portion of its decision in Solem. The Supreme Court held that a mandatory life sentence for a first felony offender for a conviction of possession of more than 650 grams of cocaine did not constitute cruel and unusual punishment under the Eighth Amendment. In reaching this conclusion, the Supreme Court undertook an historical analysis of the proper examination of a claim asserting constitutional excessiveness under the Eighth Amendment, noting that the Eighth Amendment contains no proportionality guarantee. Harmelin, 501 U.S. at 965-66, 111 S.Ct. at 2686.
The Fifth Circuit has construed Harmelin to overruleSolem's proportionality guarantee in all cases except when a sentence is grossly disproportionate to an offense. Smallwood v. Johnson, 73 F.3d 1343, 1347 (5th Cir. 1996), cert. denied, ___ U.S. ___, 117 S.Ct. 212, 136 L.Ed.2d 146 (1996); McGruder v. Puckett, 954 F.2d 313 (5th Cir. 1992), cert. denied, 506 U.S. 849, 113 S.Ct. 146, 121 L.Ed.2d 98 (1992).
The undersigned does not find that petitioner's sentence is grossly disproportionate to the offenses of simple burglary and simple arson. However, even if petitioner's sentence triggered a proportionality analysis, Petry would fail to satisfy the other requirements of Solem's proportionality guarantee. The maximum term of imprisonment that may be imposed pursuant to a conviction for simple burglary is twelve years. La.R.S. § 14:62. The maximum sentence for simple arson is fifteen years. La.R.S. § 14:51. Petitioner was sentenced to a total of 20 years on two counts of burglary and one count of arson, far less than the maximum penalties. His claim for excessive sentence has been reviewed by both the Louisiana appellate and supreme courts and found to be without merit.
Based on the foregoing, the undersigned finds that petitioner's sentence is not excessive.
Selective and Vindictive Prosecution
Petry asserted in this habeas petition that he was "singled out" to be prosecuted on the basis of his race, African-American. He failed to raise this claim in any of his prior habeas applications with the state courts. Respondent argues that Petry has procedurally defaulted on this claim.
Procedural default occurs when the state courts have refused to review the merits of a federal habeas petitioner's claim due to the petitioner's failure to follow a rule of state procedure. The default may occur at trial or upon review. When a state court decision rests on a state law ground that is independent of a federal question and adequate to support the judgment, federal courts lack jurisdiction to review the merits of the case. Moore v. Roberts, 83 F.3d 699, 701 (5th Cir. 1996), cert. denied, ___ U.S. ___, 117 S.Ct. 772, 136 L.Ed.2d 717 (1997); Lott v. Hargett, 80 F.3d 161, 164 (5th Cir. 1996).
If a state court decision rejecting a claim rests on an "adequate and independent state procedural bar" and does not rest on federal law, the federal habeas court should not review the merits of the claim absent a showing of "cause and prejudice" or a "miscarriage of justice." Lott, 830 F.3d at 164; Boyd v. Scott, 45 F.3d 876, 879 (5th Cir. 1994), cert. denied, 514 U.S. 1111, 115 S.Ct. 1964, 131 L.Ed.2d 855 (1995). It is well settled that federal courts should use the "cause and prejudice" test to determine whether a habeas petitioner's state procedural default will bar the federal court from reaching the merits of defaulted claims. Coleman v. Thompson, 501 U.S. 722, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991).
Respondent argues that Petry's claim for selective and vindictive prosecution is barred under La.C.Cr.P. Art. 930.8. Article 930.8(A) provides that no application for post-conviction relief shall be considered if it is filed more than three years after the judgment of conviction and sentence has become final. The statute also contains a one-year grace period which gives petitioners whose applications would have been barred on October 1, 1990 until October 1, 1991 to file an application for post-conviction relief.
Petry filed two timely applications for post-conviction relief with the state courts, neither of which raised the claim of selective and vindictive prosecution. In all cases in which a state prisoner has defaulted his federal claims in state court pursuant to an independent and adequate state procedural rule, federal habeas review of the claim is barred unless the petitioner can demonstrate cause for the default and actual prejudice as the result of the alleged violation of federal law, or demonstrate that failure to consider the claim will result in a fundamental miscarriage of justice. Coleman, 111 S.Ct. at 2564.
The undersigned specifically gave Petry the opportunity to demonstrate cause and prejudice as a result of his procedural default in the Memorandum Order dated November 21, 1996. (Document No. 4). In response, Petry stated that the reason that this claim was not presented "was because his original claims and petition was done by an unexpericence [sic] inmate who attempted to assist the petitioner, however, because both the petitioner and his help were laymans [sic] at law, without adequate knowledge of the law, they failed to state the claim of Denial of Due Process through Selective Prosecution." (Document No. 5, p. 2). He concludes that he has demonstrated "cause and prejudice" for this reason.
Courts have specifically rejected the theory that pro se litigants should be entitled to a more lenient standard for the showing of cause. In Cornman v. Armontrout, 959 F.2d 727, 729-30 (8th Cir. 1992), the court held that a habeas petitioner's pro se status is not an objective factor external to the defense. Further, in McCoy v. Newsome, 953 F.2d 1252 (11th Cir.), cert. denied, 504 U.S. 944, 112 S.Ct. 2283, 119 L.Ed.2d 208 (1992), the court held that the petitioner's lack of legal education does not constitute cause. Moreover, in Stanley v. Lockhart, 941 F.2d 707, 709-10 (8th Cir. 1991), the court rejected the contention that sufficient cause to excuse procedural default was shown by petitioner's pro se status, limited education and mental incompetence, stating that the cause must not be attributed to the petitioner's own conduct.
Here, although the Court specifically gave Petry the opportunity to present evidence of cause and prejudice or a fundamental miscarriage of justice, he has not presented any facts sufficient to rebut the presumption under the procedural default doctrine. Because he did not make the required showing, this Court lacks jurisdiction to review the merits of this claim.
Request for Evidentiary Hearing
In closing, Petry requests an evidentiary hearing. Rule 6 of the Federal Rules Governing Section 2254 Cases provides, in pertinent part, as follows:
A party shall be entitled to invoke the processes of discovery available under the Federal Rules of Civil Procedure if, and to the extent that, the judge in the exercise of his discretion and for good cause shown grants leave to do so, but not otherwise.
When there is a factual dispute which, if resolved in the petitioner's favor, would warrant relief, and the state court has not afforded the petitioner a full and fair evidentiary hearing, a federal habeas petitioner typically is entitled to an evidentiary hearing. Harris v. Johnson, 81 F.3d 535, 540 (5th Cir.), writ denied, ___ U.S. ___, 116 S.Ct. 1863, 134 L.Ed.2d 961 (1996). Rule 6 does not, however, authorize fishing expeditions. Id. A habeas petitioner must make sufficiently specific factual allegations; conclusionary allegations will not suffice to mandate either discovery or a hearing. Id.
The commentary to Rule 6 states:
Where specific factual allegations before the court show reason to believe that the petitioner may, if the facts are fully developed, be able to demonstrate that he is confined illegally and is therefore entitled to relief, it is the duty of the court to provide the necessary facilities and procedures for an adequate inquiry.
The court has reviewed the allegations in the habeas petition, and determined that the petitioner has not made sufficiently specific factual allegations to warrant an evidentiary hearing. In particular. Petry has not shown that the requested hearing is likely to reveal facts which would demonstrate that he is entitled to relief. Further, Petry has not met any of the requirements of 28 U.S.C. § 2254(e)(2) to entitle him to a hearing. Moreover, a review of the transcript reflects that the state court has afforded petitioner a full and fair guilty plea hearing. Thus, Petry's request should be denied. CONCLUSION
28 U.S.C. § 2254(e)(2) provides that the court shall not hold an evidentiary hearing if the applicant has failed to develop the factual basis of a claim in State court proceedings, unless the applicant shows that (A) the claim relies on (i) a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable; or (ii) a factual predicate that could not have been previously discovered through the exercise of due diligence; and (B) the facts underlying the claim would be sufficient to establish by clear and convincing evidence that but for the constitutional error, no reasonable factfinder would have found the applicant guilty of the underlying offense.
Petry has not shown that the adjudication of the state law claims 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. Accordingly, based on the foregoing reasons, the undersigned recommends that Petry's § 2254 application motion be DENIED.
FAILURE TO FILE WRITTEN OBJECTIONS TO THE PROPOSED FACTUAL FINDINGS AND/OR THE PROPOSED LEGAL CONCLUSIONS REFLECTED IN THIS REPORT AND RECOMMENDATION WITHIN TEN (10) DAYS FOLLOWING THE DATE OF ITS SERVICE, OR WITHIN THE TIME FRAME AUTHORIZED BY FED.R.CIV.P. 6(b), SHALL BAR AN AGGRIEVED PARTY FROM ATTACKING EITHER THE FACTUAL FINDINGS OR THE LEGAL CONCLUSIONS ACCEPTED BY THE DISTRICT COURT, EXCEPT UPON GROUNDS OF PLAIN ERROR. DOUGLASS V. UNITED SERVICES AUTOMOBILE ASSOCIATION , 79 F.3D 1415 (5TH CIR. 1996).
Counsel are directed to furnish a courtesy copy of any objections or responses to the District Judge at the time of filing.
Exhibit A
EXHIBIT B
UNITED STATES DISTRICT COURT EASTERN DISTRICT OF LOUISIANA
GERVASE DECLOUET CIVIL ACTION
VERSUS NUMBER 04-1060 "I"
CHEVRON U.S.A. INC. AND JUDGE AFRICK GRAND ISLE SHIPYARD, INC. MAG. WILKINSON
* * * * * *
UNITED STATES DISTRICT COURT WESTERN DISTRICT OF LOUISIANA LAFAYETTE-OPELOUSAS DIVISION
JEFFERY A. BROUSSARD, CIVIL ACTION NO. ET AL 6:03CV1145 (LEAD)
VERSUS
6:04CV197 (MEMBER)
CHEVRON U.S.A. INC., JUDGE DOHERTY ET AL MAG. JUDGE METHVIN
Sworn Statement of JERRY JOSEPH CROWE, SR., taken in the offices of KING, LEBLANC BLAND, 201 St. Charles Avenue, 45th Floor, New Orleans, Louisiana 70170, on The 1st day of October, 2004.
the scope of work, and we'd discuss how long it would take and what it would entail, what size crew, how long, you know, if they would have any hot work, how it would affect them and how they would affect us.
Q. And when you came to New Orleans, who did you meet with?
A. Tracey Murrel and Kale Ludeen.
Q. And in those meetings, what were you providing?
A. Expertise. I mean, on confined space entry, on vessel cleaning.
Q. Am I correct you were telling Chevron or advising Chevron, okay, you have indicated you want to clean these particular vessels, this is how it should be done, this is the amount of time it should take, this is the number of personnel that we need to do the job, this is how the work needs to be set up?
A. Correct. And we would discuss logistic-wise also with the other work that was going to be done with the construction and — there was more than just vessel cleaning. It was a big meeting we'd have,
Q. And do you know which vessels were of that type?
A. The two low pressure separators in which I've cleaned prior to that while the platform was producing.
Q. So in other words, with respect to the two low pressure separators, it was not necessary that they be cleaned during this overall platform shutdown?
A. Correct.
Q. And during the course of your interaction with Chevron on this project, were you told that if you can't get to those low pressure separators during the shutdown, don't worry about it, we'll do them later or we'll get you-all to do them later when the platform is brought back on production?
A. Correct. At one time we had actually canceled them until after the shut-in and then they decided, well, let's try to get them done. If we get get that done, that's fine, if not, after we bring the production back on, then we'll clean them.
Q. In terms of whether or not it was safe to actually undertake the cleaning of the separators and whether there was adequate time to do it, was that something that you would make the ultimate determination of?
A. Everybody did. I mean, the supervisor or even a hand, if they found that something was unsafe, the job would stop.
Q. And if you felt that that was something that could not have been accomplished during shutdown —
A. We wouldn't have done it.
Q. On this job did you ever feel pressured or hurried in any way by Chevron?
A. No. We knew our job scope and the time frame. We knew when we was going to turn the vessels back over to Chevron that we would be done with them regardless.
Q. And you were involved in assisting putting the schedule together?
A. Correct.
Q. So you would have told Chevron how long it should take to do these particular jobs?
A. Correct. Average, estimate. It's hard to say it's going to take X amount of hours until you open it up and see.
Q. You said you also went offshore a another facility.
Q. Okay.
A. As far as to do anything else with this particular job task, no.
Q. And I know I just asked you this, but I want to make sure I'm clear. Once this Confined Space Entry Form that's within Exhibit 2-A, page 58, once that's filled out by Mr. Louvier, if he had done it correctly and had done everything that he says he had done on here, as of 9:30 there should not have been any problem with a guy going inside of that vessel?
A. Correct.
Q. Just a couple more questions. The work that the PMI people were doing that night in terms of the details of the tank cleaning activities, preparing vessels or tanks for cleaning, the Chevron personnel would not have been telling them how to go about doing that work, correct?
A. Correct.
Q. That's determinations that are made by PMI?
A. Correct.
EXHIBIT C
UNITED STATES DISTRICT COURT EASTERN DISTRICT OF LOUISIANA
GERVASE DECLOUET CIVIL ACTION
VERSUS NUMBER 04-1060 "I"
CHEVRON U.S.A. INC. AND JUDGE AFRICK GRAND ISLE SHIPYARD, INC. MAG. WILKINSON
* * * * * *
UNITED STATES DISTRICT COURT WESTERN DISTRICT OF LOUISIANA LAFAYETTE-OPELOUSAS DIVISION
JEFFERY A. BROUSSARD, CIVIL ACTION NO. ET AL 6:03CV1145 (LEAD)
VERSUS
6:04CV197 (MEMBER)
CHEVRON U.S.A. INC., JUDGE DOHERTY ET AL MAG. JUDGE METHVIN
Sworn Statement of TIMMY MICHAEL WESTERMAN, taken in the offices of KING, LEBLANC BLAND, 201 St. Charles Avenue, 45th Floor, New Orleans, Louisiana 70170, on The 1st day of October, 2004.
A. That's correct.
Q. So was there in any way, shape, or form, any pressure put on anybody with PMI to hurry this job?
A. No, sir.
Q. After you knocked off for that evening, when is the first time you became aware of a problem?
A. I was awakened by the Marino employee at South Tim 130 at 12:30, 1:00 o'clock in the morning. He came and woke me up and said there was an incident South Tim 151, we had two employees that were thrown overboard and missing, and he said, "They need you right away, they're sending the boat over now." Obviously, I got up and got dressed and I waited for the boat to arrive.
Q. When you got over there, what did you do?
A. When I got to the platform, I could still see a lot of people, you know, very shaken, you know, moving pretty fast around the facility. The first guy I ran into was Roy Louvier. I asked Roy, I said, "Roy, is everybody accounted for?" That was my
EXHIBIT D
Investigation of Flash Explosion and Injuries South Timbalier Block 151, Production Platform OCS 00463
June 15, 2002
Gulf of Mexico Off the Louisiana Coast
U.S. Department of the Interior MMS Minerals Management Service Gulf of Mexico OCS Regional Office
14 June 2002 — 0600 hrs — The day shift came on duty, conducted the Operator and Contractor safety meetings, job scope discussion, and the writing of the JSA's. According to testimony, two engineering personnel from the Operator discussed the need to speed up the work to return to production as soon as possible. Instructions were given to the Contractor project manager to complete cleaning of the upper low-pressure separator and lower low-pressure separator by about 0800 hours on 15 June 2002 or forgo that particular operation. The stated reason for this request was to complete the work concurrently with completion of the other contractor's activities so as to return the Platform to production as early as possible. Confined space entry work continued in the wet-oil tank and cleaning of the floatation cell was completed. The high-pressure separator hatches were secured.
1930 hrs — The night shift completed the crew change. Operator personnel conducted a meeting with the supervisors for several different tasks including the Contractor's operation. After the shift meeting, the Contractor foremen conducted their own JSA meetings. The crew went through the standard hazards and held a walk-through with the project manager and Operator's production personnel, checking the position of the valves, whether they were blocked and bled, etc., including a discussion of the condition of the piping connected to the vessels. The inlet valve for the lower low-pressure separator was reported to be double blocked and bled. However, subsequent investigation could not determine the actual position and condition of the bleed valve.
On each shift, the Contractor crews were organized into three groups of three men, each supervised by a foreman reporting to the project manager. Contractor personnel on the nightshift included the project manager; three foremen, including the foreman for the upper low-pressure separator and his three crew members; the foreman for the lower low-pressure separator and his crew, which included the worker assigned for confined space entry; and the foreman for the wet-
EXHIBIT E PRODUCTION MANAGEMENT INDUSTRIES, INC.
ST 151 Root Cause Analysis
brought to the facility. The cleaning of the Wemco Unit was completedand the resecurement of the High-Pressure Separator hatches was completed.
The night crew was transported to ST 151 and completed crew change with the day crew. Safety Meetings/JSEA's were conducted and the work scope discussed. The work scope was to concentrate and continue cleaning the Wet Oil tank. At approximately 7:30pm a discussion was held with the PMI Supervisor to initiate cleaning of the Low Pressure Separators. It was decided that if the crews could successfully clean the Low Pressure Separators by 6:00-8:00 am then to continue; however, if it was going to take longer then to "button up" the hatches and the work would be completed once the facility was on line. The Lower Low Pressure Seperator crew drained off the fluid and removed the manway hatch. An atmospheric gas test was performed at the manway opening and a confined space entry was made at 9:30 pm to began removing the remaining fluids and sand washing. Another crew was performing cleaning operations on the Wet Oil Tank and the third crew was preparing the Upper Low Pressure Seperator for Confined Space Entry. The crews continued work without incident until approximately 11:30 pm when they broke for midnight lunch.June 15, 2002
The crews returned to the job site location at 12:30 am and began their work activities. The crew cleaning the Wet Oil Tank was preparing for Confined Space Entry, the crew assigned to the Upper Low Pressure Seperator was "breaking" the manway bolts and the crew assigned to the Lower Low Pressure Seperator was preparing to make an additional entry. During the midnight lunch a Chevron Operator requested that PMI take a sample of the sand/scale in the Lower Low Pressure Seperator. PMI employee, Ryan Smith suited up in his protective clothing, SAR/SCBA and entered the vessel. Once inside, PMI Foreman, Roy Louviere handed Ryan his Class I, Div I, II Explosion Proof flashlight and a one quart plastic sample jar without a lid. Ryan proceeded into the vessel approximately 3/4 of the way near the mist extractor. Jeff Bertrand who was working with the crew cleaning the Wet Oil Tank, as assigned by his mentor Ronnie Provost, was requested and proceeded to obtain an additional box of protective clothing (Kappler CPF 1) that was positioned near the Lower Low Pressure Seperator manway. Jeff Broussard, Foreman, was assigned to clean the Upper Low Pressure Seperator, after partially opening the hatch climbed down the ladder, positioning him approximately 5-8 feet from the manway opening of the Lower Low Pressure Seperator.
At approximately 12:45am an explosion/flash fire occurs.
Ryan Smith states, "I had a sample jar. I was squatting next to the next to the weir, it was to my left. I was facing the wall. I didn't hear anything before I felt it. I saw fire from my left to my right. It just felt hot. I knew I had to get out of the tank. I jumped over the oil bucket. I couldn't see at first but I could hear Roy screaming. The smoke cleared and I dove out of the hatch. I was taking my sample from the edge of the wall. There was about a foot of sand and scale. I had
EXHIBIT F
UNITED STATES DISTRICT COURT EASTERN DISTRICT OF LOUISIANA
GERVASE DECLOUET CIVIL ACTION
VERSUS NUMBER 04-1060 "I"
CHEVRON U.S.A. INC. AND JUDGE AFRICK GRAND ISLE SHIPYARD, INC. MAG. WILKINSON
* * * * * *
UNITED STATES DISTRICT COURT WESTERN DISTRICT OF LOUISIANA LAFAYETTE-OPELOUSAS DIVISION
JEFFERY A. BROUSSARD, CIVIL ACTION NO. ET AL 6:03CV1145 (LEAD)
VERSUS
6:04CV197 (MEMBER)
CHEVRON U.S.A. INC., JUDGE DOHERTY ET AL MAG. JUDGE METHVIN
Deposition of GERVASE JOHN DECLOUET, taken in the offices of JIM S. HALL ASSOCIATES, 800 North Causeway Boulevard, Suite 100, Metairie, Louisiana 70001, on the 28th day of September, 2004.
Q. And you made some mention about Chevron or the oil company wanting to move the job along?
A. Yeah. The production was slow or whatever, and they was trying to hurry things up and get it done by a certain time that morning.
Q. Who told you this?
A. Some of the fellows.
Q. Some of what fellows?
A. For PMI and — I heard one of the supervisors say that too. I don't know the guy's name.
Q. So the people you heard say this were PMI guys?
A. Uh-huh (affirmative response).
Q. You said one of the PMI supervisors said this?
A. Uh-huh (affirmative response).
Q. That would have been either Mr. Broussard or Mr. Louvier or the other fellow whose name you didn't know?
A. I think it was the other guy. I don't know his name. And then I don't remember who exactly, but I know he was one of the this other job?
A. I don't remember. I have no idea.
Q. From your work group, who was told to go work on the other job?
A. I have no idea. All I know, they came and got me.
Q. And as best you can recall, tell me what you were told that you were to do at that point?
A. They came — the guy came over and told me, he said just stop doing what you're doing, and we went on the other side of that section where the explosion took place. He told me to come over there because we need the hurry up and get these tanks — get them cleaned and inspected, and that was basically what he told us.
Q. And this guy who was telling you this was either the PMI supervisor, Broussard, or one of the other PMI guys?
A. I assume so, yeah.
Q. And you're told this, and then what do you do?
A. When we get over there, we went up and we started unbolting the flanges, and it was
Q. Do you even know why you were asked to take that flange off?
A. They told us that we had to hurry up and get it off because they wanted to come in and inspect it and have it cleaned.
MR. DUVIEILH:
Who is "they"?
EXAMINATION BY MR. JURGENS:
Q. Who is "they"? They is Mr. Broussard?
A. He just said "they."
Q. But you're getting your orders from Mr. Broussard?
A. I think that's his name. Jeff, yeah.
Q. What I need you to do — and I know you're not an artist, but I need you to try to draw — I'm trying to think of the best way to do this.
MR. DUVIEILH:
Why don't you use photograph 11 instead?
MR. JURGENS:
That's not going to work.
EXAMINATION BY MR. JURGENS:
Q. Draw a bird's-eye view just showing me the tank, the handrails, the flange you were
Jeff, do you have anything?
MR. ROEBUCK:
I think you pretty well covered it.
EXAMINATION BY MR. JURGENS:
Q. Mr. Declouet, you were never given any documents showing what the schedule was for the completion of this work on 151, were you?
A. Me? No.
Q. And the scheduling of work is not something that you would be brought into, would you?
MR. HALL:
Objection to the form of the question.
Other than what he's testified to?
THE WITNESS:
No more than what they was telling us that particular day, they wanted us to hurry before 8:00 o'clock.
EXAMINATION BY MR. JURGENS:
Q. And you told me your PMI supervisor told you that?
A. Yes, sir.
Q. And were you present when any conversations were conducted between your PMI supervisors and Chevron about that?
A. No, sir.
Q. And so you wouldn't know if the conversations between those people were "if you can't get it done by 8:00 o'clock, don't worry about it, we'll do it after the platform is brought back into production"? You wouldn't know that, would you?
A. No, I wouldn't.
Q. Do you know how long this project was supposed to last, the whole 151 project?
A. No. Not right offhand, no.
Q. And the work you were doing that day on the Wemco tank —
A. Yes, sir.
Q. — before you got pulled off, when you were doing the work on the Wemco tank, weren't you inside of the tank cleaning?
A. No, sir.
Q. Where were you?
A. I was on the outside.
EXHIBIT G
UNITED STATES DISTRICT COURT EASTERN DISTRICT OF LOUISIANA
GERVASE DECLOUET CIVIL ACTION
VERSUS NUMBER 04-1060 "I"
CHEVRON U.S.A. INC. AND JUDGE AFRICK GRAND ISLE SHIPYARD, INC. MAG. WILKINSON
* * * * * *
UNITED STATES DISTRICT COURT WESTERN DISTRICT OF LOUISIANA LAFAYETTE-OPELOUSAS DIVISION
JEFFERY A. BROUSSARD, CIVIL ACTION NO. ET AL 6:03CV1145 (LEAD)
VERSUS
6:04CV197 (MEMBER)
CHEVRON U.S.A. INC., JUDGE DOHERTY ET AL MAG. JUDGE METHVIN
Deposition of JEFFREY BROUSSARD, taken in the offices of CHRISTOPHER T. LEE, ESQUIRE, 109 Stewart Street, Lafayette, Louisiana 70502, on the 9th day of June, 2004.
REPORTED BY:
MONIQUE C. KRONLAGE, CCR Certified Court Reporter
A. Not exactly.
Q. Do you know what the vent line is?
A. Yes.
Q. What is the vent line?
A. That's the vent — if the pressure over-pressured, the pressure would blow out the vent line.
Q. Are these lines — whenever the tank is isolated, are those vent lines supposed to be double blocked and sealed?
MR. JURGENS:
Objection to the form.
THE WITNESS:
They should have been double blocked or closed off.
EXAMINATION BY MR. ROEBUCK:
Q. And anything to do with isolating the tank or messing with the valves, that would have been a Chevron process?
A. Yes.
Q. Now, the MMS report also mentions that — or discusses that the operator of Chevron discussed speeding up the schedule for the work. Do you remember that happening?
A. No.
Q. If that was to have happened, would they have discussed that with you?
A. They should have.
Q. Or could it have just been a matter of them telling your superiors and changing the scope of the work that you were supposed to do on a particular shift?
MR. JURGENS:
Objection to the form.
EXAMINATION BY MR. ROEBUCK:
Q. Were you aware of the schedule before you went out there?
A. No.
Q. Did you ever know what the schedule was?
A. No.
Q. You just get your duties when you arrive on the platform?
A. Yeah.
Q. If an inlet valve is leaking into the tank or the vessel, can that change the condition of the atmosphere in this vessel?
A. Yes.
Q. After the — I'm kind of bouncing around here. After the explosion, you said they made you leave. Who is "they"?