Opinion
Civil Action No. 05-1214, Section P.
January 26, 2006
MEMORANDUM ORDER
Before the court is the petition for writ of habeas corpus filed pursuant to 28 U.S.C. § 2254 by pro se petitioner Kenny Thomas on June 20, 2005. Thomas is an inmate in the custody of the Louisiana Department of Public Safety and Corrections. He is incarcerated at the Louisiana State Penitentiary, in Angola, Louisiana where he is serving a life sentence imposed following his 1999 conviction for second degree murder entered in the Thirteenth Judicial District Court, for Evangeline Parish.
The petition was signed on June 20, 2005 received and filed on July 1, 2005. However, the undersigned has given petitioner the benefit of the "mailbox rule", deeming the petition filed on the date it was signed, that date representing the earliest date that the petitioner could have presented his pleading to prison authorities for mailing. See Houston v. Lack, 487 U.S. 266, 270-71, 108 S.Ct. 2379, 101 L.Ed.2d 245 (1988); Spotville v. Cain, 149 F.3d 374, 376 (5th Cir. 1998).
The petition, its accompanying memorandum, the exhibits submitted by petitioner on December 13, 2005, and the published jurisprudence of the State of Louisiana establish the following relevant facts.
On December 16, 1998 petitioner was indicted and charged with second degree murder by the Evangeline Parish Grand Jury. [Doc. 9-2, p. 6]. He was ultimately tried and found guilty as charged on October 1, 1999. Petitioner filed a Motion for a New Trial and Motion for Post-Judgment Verdict of Acquittal which were denied. [ Id. at 8-9]. On October 22, 1999 Thomas was sentenced to life imprisonment. [ Id. at 9].
The Motion for New Trial was based on the recanting of testimony by the state's witness Jackie Hayes. At the hearing on the motion, Ms. Hayes testified that her trial testimony placing petitioner near the scene of the crime was fabricated at the direction of detectives with the Evangeline Parish Sheriff's Office. The trial court rejected this testimony and denied the Motion for New Trial. That Motion was also based on evidence that during a recess on the fourth day of trial the Court heard a juvenile matter concerning the termination of parental rights and a child custody determination. Custody of the child in question was awarded to Joseph Earlis Melvin who was a juror in petitioner's trial. The State of Louisiana, in whose name the termination and custody proceedings had been filed, was represented by another member of the District Attorney's Office. The Court ruled that it was coincidental that the matter arose during the course of the trial and found no connection between the two events. [Doc. 9-2, p. 8-9]. In the motion for Post-Judgment Verdict of Acquittal, petitioner argued that the state failed to prove the murder occurred in the parish of prosecution. This motion was also denied. [ Id.].
Thereafter petitioner appealed his conviction to the Third Circuit Court of Appeals where he argued three assignments of error: (1) the trial court erred in denying petitioner's Motion for New Trial based on the recanted testimony of Jackie Hayes; (2) the trial court erred in denying petitioner's Motion to Suppress evidence seized from petitioner's automobile; and (3) the trial court erred in denying petitioner's Motion for Post-Judgment Verdict of Acquittal based on the state's failure to prove an essential element of the offense, that the murder occurred in the parish of prosecution. [ Id. at p. 10]. Petitioner's conviction was affirmed by the Third Circuit Court of Appeals in an unpublished opinion dated November 2, 2000. State of Louisiana v. Kenny R. Thomas, KA 00-00457 (La.App. 3d Cir. 11/2/2000), 778 So.2d 103 (unpublished). The court rejected petitioner's third assignment of error as procedurally barred under L.C.Cr.P. art. 615 because venue is not an element to be proven at trial, and petitioner had not properly raised the question of venue by pre-trial motion to quash the indictment. [Doc. 9-2, p. 43-44].
On some unspecified date, petitioner sought further direct review in the Louisiana Supreme Court. Although petitioner was ordered to supply a copy of the application for supervisory writs he filed in the Louisiana Supreme Court, to date, he has not complied. On November 16, 2001, petitioner's writ application was denied without comment. State of Louisiana v. Kenny R. Thomas, 2000-3439 (La. 11/16/2001), 801 So.2d 1073. Petitioner did not seek further direct review in the United States Supreme Court.
On December 2, 2002, petitioner filed an Application for Post-Conviction Relief in the Thirteenth Judicial District Court alleging five claims for relief: (1) Ineffective assistance of counsel due to counsel's failure to file a Motion to Quash petitioner's indictment based on lack of territorial jurisdiction; (2) Trial judge abused his discretion when he refused to accept the recanting testimony of Jackie Hayes at the hearing on petitioner's Motion for New Trial; (3) Unconstitutional selection process of Grand Jury foreperson under Article 413(B); and (4) Use of Louisiana's "short form" indictment was unconstitutional since petitioner's indictment did not allege all of the essential elements of second degree murder. [Doc. 9-3, p. 19, 21, 24, 30].
The application is signed on July 9, 20002, but is stamped as filed by the Clerk of Court on December 2, 2002. The Fifth Circuit has not extended the "mailbox" rule to determine the filing date for state habeas applications. See Dennis v. Cain, 2005 WL 3588707, *4-5 (E.D.La. 2005) citing Coleman v. Johnson, 184 F.3d 398, 401 (5th Cir. 1999) and Torns v. Mississippi, 54 Fed.Appx. 592, 2002 WL 31730353 (5th Cir. 2002). This is so even if state law provides for application of the rule. See Id. at *4 fn. 19 citing Torns. Instead, the Fifth Circuit instructs that federal courts are limited to determining if the difference in dates merits equitable tolling. Id. citing Coleman. On the record before this court, at present, it does not appear that such an analysis is necessary because without the benefit of equitable tolling, the instant petition appears to have been timely filed. Should this initial determination come into question upon receipt of future documentation or pleadings, the undersigned will determine the issue in accordance with Fifth Circuit precedent.
In his habeas corpus petition, petitioner alleges that he raised a claim of "Newly discovered evidence affidavit from Dr. Perron." [Doc. 1-1, ¶ 11(a)(3)]. However, the post-conviction application submitted by petitioner does not raise this claim. In his writ application to the Third Circuit Court of Appeal petitioner claimed that he filed two supplemental applications for post-conviction relief. [See Doc. 9-3, p. 39]. Petitioner has not provided copies of these pleadings. Nevertheless, this claim was considered by the trial court at an evidentiary hearing conducted on July 31, 2003.
Counsel was appointed to represent petitioner and, on July 17, 2003, an evidentiary hearing on the application for post-conviction relief was held. The hearing was continued to July 31, 2003 in order to secure the testimony of Mr. Sanford, petitioner's trial counsel, and Dr. Perron, the Evangeline Parish Coroner at the time of petitioner's conviction. [Doc. 9-4]. At the conclusion of the hearing, the trial court rendered judgment as follows:
The transcript reveals that after the hearing on petitioner's Motion for New Trial Ms. Hayes was prosecuted for committing perjury at the hearing on the Motion, and that thereafter she pled guilty to that charge. Thus, conceding that she told the truth at petitioner's trial and lied at the hearing on petitioner's Motion for New Trial. [Doc. 9-4, p. 9-10].
"Okay, I have been thinking about this for the last couple of weeks. I was basically aware of the issues that we were going to be confronted with today. I know that Daniel Stanford is an excellent attorney, and I know he worked hard on this and obviously he might have missed something on the issue of venue, but as Mr. Lejeune [prosecutor] says, it is not the responsibility or the burden of the State to prove beyond a reasonable doubt, it's by a preponderance of the evidence. I don't think this of itself is the grounds for me to grant the motion. In reviewing the testimony of Dr. Perron, it strikes me and it's obvious that all of these issues raised by Dr. Perron were presented to a jury. It is very difficult for me, not having witnessed the case, not having worked the case and not having presided in the case to place myself in the place or in the stand of twelve jurors who heard the evidence and rendered a verdict. I don't see any new evidence here which would entitle me to make the rule which Mr. Kenny Thomas wants. The last thing I want to see happen is an innocent man get sent to jail and kept in jail for something that he or she did not do, but in this case I don't think I've got sufficient information for me to grant your motion Mr. Thomas. I'm going to deny your motion but I will order that this hearing be transcribed so that you can present this in the form of a Writ to the Third Circuit . . ." [Doc. 9-6, p. 31-33].
On August 26, 2003 petitioner sought review in the Third Circuit Court of Appeals. Therein he adopted all arguments presented in his original and supplemental applications for post-conviction relief and all arguments and authorities presented at the hearings on July 17 and 31, 2003. [Doc. 9-3, p. 38-39].
On October 23, 2003 the Third Circuit granted in part and denied in part petitioner's writ application noting,
"The trial court failed to rule on three of Relator's assignments of error: the grand jury selection process was flawed, the short form indictment failed to notice the Realtor of the nature of the charge against him, and juror and prosecutor misconduct. Therefore, these assignments are improperly before this court. Accordingly, this matter is remanded to the trial court for disposition of these three assignments of error in accordance with La. Code Crim.P. arts. 924 et seq. In all other respects, Relator's writ is denied as the remaining assignments of error are either repetitive or without merit." See State v. Kenny Thomas, No. KH-03-01177 (La.App. 3d Cir. 10/23/2003). [Doc. 9-3, p. 42].
On remand, another hearing was conducted in the Thirteenth Judicial District Court on January 29, 2004. At that hearing the court permitted discussion of a claim of prosecutorial misconduct summarized by petitioner's post-conviction counsel as follows:
". . . there was a juror at the trial who had a pending parental rights case going on and was being represented by the District Attorney in order to get his child back into his custody. According to Mr. Thomas, during the proceedings of the trial, at a break, that juror came into Court and with the District Attorney being present was awarded custody of a, a minor child and what Mr. Thomas is raising is that that creates a conflict . . . to that juror that was not disclosed . . ." [Doc. 9-5, p. 7-8].
In discussion with the court, petitioner stated that this issue was raised in his Motion for New Trial which was denied by the trial court. He also claimed that the issue was thereafter raised on appeal. In response, the court noted that if the issue was raised, the Third Circuit chose not to rule on the issue, and if the issue was not raised, it was waived. [ Id. at 17-18].
During the hearing, the prosecutor argued that petitioner's claim regarding the grand jury selection process was untimely because there was no pre-trial motion to quash addressing that issue. Rather, the pre-trial morion to quash addressed only the short form indictment issue. That motion, however, was denied by the trial court and the issue was not raised on appeal. Thus, the prosecutor argued that the claims were not reviewable. [ Id. at 2-3]. In response, defense counsel argued that the issues should be considered in the context of ineffective assistance of counsel, despite the fact that the sole ineffective assistance claim raised by petitioner prior to remand concerned only the territorial jurisdiction issue. [ Id. at 4-5].
Ultimately, the court denied relief on the remaining claims as follows:
"You've raised some interesting arguments Mr. Thomas but it appears to me that the attack on the grand jury selection process was not raised timely. The issue of the short form does not really apply in a non-capital case and actually the juror or prosecutorial misconduct it appears to me that in your motion for a new trial that was held after the, Judge Aucoin heard it, denied your motion, this was either presented to the Third Circuit and they chose to do nothing with it or it was not presented to them in which case they . . . felt it was not filed timely. Now, this is probably something that you can take up to them that and to review what my decision would be today but my decision today is that I do not find that these . . . requests are timely, I don't find there's any merit to them and consequently I'm denying them." [Doc. 9-5, p. 22].
On February 27, 2004 petitioner submitted an Application for Supervisory writs to the Third Circuit Court of Appeals in which he set forth the following claims: (1) ineffective assistance of counsel based on counsel's failure to file a pre-trial Motion to Quash based upon lack of territorial jurisdiction; (2) trial court abused its discretion when it refused to accept the recanting testimony of witness Jackie Hayes during the Motion for New Trial; (3) unconstitutional grand jury foreperson selection process; (4) unconstitutional indictment (short-form); (5) flawed grand jury selection process; (6) short form indictment; (7) juror and prosecutorial misconduct. [Doc. 9-5, p. 29-30]. Petitioner did not provide argument on these claims. Rather, he adopted the arguments in his post-conviction applications and testimony presented at the January 2004 hearings on his application. [Doc. 9-5, p. 30-31]. However, he did provide some original argument with respect to his short form indictment claim. [ Id. at 31-33].
On May 25, 2004 the Third Circuit found as follows:
"There is no error with the trial court's denial of Relator's application for post-conviction relief. Relator's allegations of ineffective assistance of counsel, which were not raised until the January 2004 evidentiary hearing, are untimely, and he fails to provide an exception to the time limitation as provided by La. Code Crim.P. art. 930.8. Whereas Relator failed to file a pre-trial motion to quash the indictment based on an alleged flawed grand jury foreman selection procedure, the Relator's equal protection claim was waived. See Deloch v. Whitley, 96-1901 (La. 11/22/96), 684 So.2d 349. Furthermore, Relator's contention that he was unconstitutionally deprived of due process by the short form indictment is without merit. Accordingly, this portion of Relator's [application] is denied.
However, the record before this court is deficient regarding Relator's claim alleging juror misconduct. Relator failed to include a copy of the judgment rendered by the trial court denying Relator's motion for a new trial and the hearing transcript of same. Thus, this claim cannot be resolved. Therefore, Relator's requests for review regarding this assignment is denied without prejudice." State v. Kenny Thomas, KH 04-00289 (La.App. 3d Cir. 5/25/04) [Doc. 9-5, p. 36].
Petitioner apparently did not provide the Third Circuit with the missing documentation required for review of his prosecutorial and juror misconduct claim. Instead, on June 9, 2004 petitioner submitted a writ application to the Louisiana Supreme Court. In that writ application, petitioner set forth substantially the same claims raised in the previous writ application filed in the Third Circuit. [Doc. 9-5, p. 42-43]. Rather than setting forth argument on his claims, petitioner again adopted the arguments in his post-conviction applications and testimony presented at the January 2004 hearings on his application in support of relief. [ Id. at 46 and 49]. However, petitioner did provide some original argument with respect to his short form indictment claim. [ Id. at 47-49]. The Louisiana Supreme Court denied writs without comment on April 29, 2005. See State ex rel. Kenny Thomas v. State of Louisiana, 2004-1625 (La. 4/29/2005), 901 So.2d 1052.
Petitioner's federal habeas corpus was filed on June 20, 2005. Petitioner asserts the following claims for relief: (1) Ineffective assistance of counsel due to counsel's failure to file a Motion to Quash petitioner's indictment based on lack of territorial jurisdiction; (2) Trial judge abused his discretion when he refused to accept the recanting testimony of Jackie Hayes at the hearing on petitioner's Motion for New Trial; (3) Unconstitutional selection process of Grand Jury foreperson under Article 413(B); (4) Use of Louisiana's "short form" indictment was unconstitutional since petitioner's indictment did not allege all of the essential elements of second degree murder; (5) "Newly discovered evidence" in the form of Dr. Perron's affidavit requires a new trial; and (6) Juror and prosecutorial misconduct.
See footnote 1, supra.
As instructed in the previous Memorandum Order, the court is obliged to review the pleadings and exhibits submitted by the petitioner in order to determine whether or not the petitioner has exhausted all available state remedies prior to filing his petition in federal court; whether or not the petition is time-barred by the provisions of 28 U.S.C. § 2244(d)(1); and/or whether or not any or all of the claims raised are subject to the procedural default doctrine.
It is well settled that a petitioner seeking federal habeas corpus relief cannot collaterally attack his state court conviction in federal court until he has exhausted available state remedies. 28 U.S.C. § 2254(b)(1)(A); Rose v. Lundy, 455 U.S. 509, 102 S.Ct. 1198, 71 L.Ed.2d 379 (1982); Minor v. Lucas, 697 F.2d 697 (5th Cir. 1983); Mercadel v. Cain, 179 F.3d 271, 275 (5th Cir. 1999); Fisher v. Texas, 169 F.3d 295, 302 (5th Cir. 1999); Whitehead v. Johnson, 157 F.3d 384,387 (5th Cir. 1998). In order to satisfy the exhaustion requirement, the petitioner must have "fairly presented" the substance of each of his claims to the state courts. Wilder v. Cockrell, 274 F.3d 255, 259 (5th Cir. 2001). Moreover, each claim must be presented to the state's highest court, even when review by that court is discretionary. O'Sullivan v. Boerckel, 526 U.S. 838, 119 S.Ct. 1728 (1999); Magouirk v. Phillips, 144 F.3d 348, 360 (5th Cir. 1998), citing Richardson v. Procunier, 762 F.2d 429, 431-32 (5th Cir. 1985). In Louisiana, the highest court is the Louisiana Supreme Court. See also, 28 U.S.C. § 2254(b)(1) "An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted unless it appears that — the applicant has exhausted the remedies available in the courts of the State. . . ."
As a general rule, section 2244(d)(1)(A) requires that a petitioner bring his section 2254 claims within one year of the date his conviction became final. 28 U.S.C. 2244(d) provides,
(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;
. . . .
The section also sets up statutory exceptions which can, in appropriate cases, extend the time for filing a federal habeas petition beyond the one year period after final conviction if the state imposes an unconstitutional impediment to the filing of a federal habeas petition, if the Supreme Court recognizes a new constitutional right and makes that right retroactive to cases on collateral review, or if the petitioner is unable through the exercise of due diligence to discover the factual predicate of the petitioner's federal habeas claim. 28 U.S.C. 2244(d)(1)(B)(C) and (D).
The time during which a "properly filed application for State post-conviction" review is pending shall not be counted toward any period of limitation under this section. 28 U.S.C. 2244 (d)(2).
Procedural default exists where (1) a state court clearly and expressly bases its dismissal of a claim on a state procedural rule, and that procedural rule provides an independent and adequate ground for the dismissal, ("traditional" procedural default), or (2) the petitioner fails to exhaust all available state remedies, and the state court to which he would be required to petition would now find the claims procedurally barred, ("technical" procedural default). In either instance, the petitioner is deemed to have forfeited his federal habeas claim. Bledsue v. Johnson, 188 F.3d 250, 254-55 (5th Cir. 1999) citing Coleman v. Thompson, 501 U.S. 722, 735 n. 1, 111 S.Ct. 2546 (1986) and O'Sullivan v. Boerckel, 526 U.S. 838, 119 S.Ct. 1728 (1999).
Should the procedural default doctrine be applicable, this court may refuse to review petitioner's claims unless petitioner demonstrates either that the procedural default doctrine is not applicable in this proceeding, that he should be excused from application of the procedural default doctrine by showing cause and prejudice for the default, or that miscarriage of justice will result from the denial of federal habeas review. See Finley, 243 F.3d at 220-221; Coleman, supra; McCleskey v. Zant, 499 U.S. 467, 111 S.Ct. 1454 (1991); Moore v. Roberts, 83 F.3d 699 (5th Cir. 1996); Gray v. Netherland, 518 U.S. 152, 116 S.Ct. 2074 (1996); Sones, 61 F.3d at 416.
The Supreme Court has defined what constitutes cause for a procedural default. In Murray v. Carrier, the Supreme Court explained that cause requires an impediment external to the defense:
[W]e think that the existence of cause for a procedural default must ordinarily turn on whether the prisoner can show that some objective factor external to the defense impeded counsel's efforts to comply with the State's procedural rule.Id. at 488, 106 S.Ct. at 2645 (internal citations omitted). If a petitioner fails to demonstrate cause, the court need not consider whether there is actual prejudice. Saahir v. Collins, 956 F.2d 115, 118 (5th Cir. 1992).
In order for a habeas corpus petitioner to avoid a procedural default by showing a fundamental miscarriage of justice, the petitioner must assert his actual innocence by showing that "a constitutional violation has probably resulted in the conviction of one who is actually innocent." Murray, 477 U.S. at 496, 106 S.Ct. at 2649; Glover, 128 F.3d at 904; Ward v. Cain, 53 F.3d 106, 108 (5th Cir. 1995); Callins v. Johnson, 89 F.3d 210, 213 (5th Cir. 1996) (quoting McClesky v. Zant, 499 U.S. 467, 495, 114 S.Ct. 1454, 1471, 113 L.Ed.2d 517 (1993)).
As noted above, petitioner has not yet provided a copy of the writ application he filed in the Louisiana Supreme Court on direct appeal. Accordingly, by separate Order, the undersigned has requested same directly from the Clerk of that court.
In light of the above procedural history it appears that all of plaintiff's claims, except his claim regarding the constitutionality of the Louisiana short form indictment, may not have been properly exhausted by fairly presenting these claims in a procedurally proper manner to the Louisiana Supreme Court. Moreover, it appears that plaintiff's second, third and sixth claims for relief, that the trial judge abused his discretion when he refused to accept the recanting testimony of Jackie Hayes at the hearing on petitioner's Motion for New Trial, that the Louisiana selection process of Grand Jury foreperson under Article 413(B) is unconstitutional and that there was juror and prosecutorial misconduct, may be procedurally defaulted. Accordingly, with regard to those claims which may have been procedurally defaulted;
Petitioner failed to argue his claims for relief in the body of his writ application as required by Rule 10, § 4 of the Rules of the Louisiana Supreme Court. Moreover, the United States Supreme Court has held that "a state prisoner does not `fairly present' a claim to a state court if that court must read beyond a petition or brief . . . that does not alert it to the presence of a federal claim in order to find material . . . that does so." Baldwin v. Reese, 541 U.S. 27, 124 S.Ct. 1347, 1351 (2004).
With respect to the testimony of Jackie Hayes, to the extent that this claim was not properly raised in the Louisiana Supreme Court on direct appeal, in post-conviction proceedings the Louisiana Third Circuit Court of Appeal found the claim repetitive apparently referring to its decision rendered on direct appeal. See State v. Kenny Thomas, No. KH-03-01177 (La.App. 3d Cir. 10/23/2003). [Doc. 9-3, p. 42].
With respect to petitioner's grand jury selection process claim, in post-conviction proceedings both the trial court and Louisiana Third Circuit Court of appeal found this claim untimely because the issue had not been properly raised in a pre-trial motion to quash. See Doc. 9-5, p. 22; and State v. Kenny Thomas, KH 04-00289 (La.App. 3d Cir. 5/25/04) citing Deloch v. Whitley, 96-1901 (La. 11/22/96), 684 So.2d 349 [Doc. 9-5, p. 36].
With respect to petitioner's juror and prosecutorial misconduct claim, the claim was not raised on direct appeal rather, petitioner argued that his Motion for New Trial was improperly denied because of the recanted testimony of Jackie Hayes, not the alleged custody proceeding involving one of the jurors which occurred during a break in the trial. See Doc. 9-2, p. 15-22. Moreover, in post-conviction proceedings, the Louisiana Third Circuit was unable to review of the claim because petitioner had not supplied the court with appropriate records necessary for review and determination of the claim. See State v. Kenny Thomas, KH 04-00289 (La.App. 3d Cir. 5/25/04) [Doc. 9-5, p. 36].
IT IS ORDERED that petitioner submit to the Clerk of Court, within forty (40) days of the filing of this Order, a response hereto setting forth allegations which demonstrate that federal habeas review of petitioner's claims is not barred by the procedural default doctrine, e.g. facts demonstrating cause and prejudice, a miscarriage of justice, or a specific showing that the procedural bar applied in this case is not strictly or regularly applied by the state court or was misapplied in petitioner's case. Petitioner may attach any and all documentation which he chooses to his response.
THUS DONE AND SIGNED.