Opinion
Civil Action No: 01-0420, Section: "R"(6)
June 29, 2001
ORDER AND REASONS
This matter was referred to the United States Magistrate Judge for the purpose of conducting a hearing, if necessary, and submission of proposed findings of fact and recommendations pursuant to 28 U.S.C. § 636(b)(1)(B) and, as applicable, Rule 8(b) of the Rules Governing Section 2254 Cases. Before the Court are petitioner's objections to the Magistrate's Report and Recommendation. Having reviewed de novo the complaint, the record, the applicable law, the Report and Recommendation of the United States Magistrate Judge, and the petitioner's objections to the Report and Recommendation, the Court agrees that petitioner's complaint should be dismissed with prejudice.
I. BACKGROUND N
On August 23, 1996, Eric Treadaway went to a business in Gretna, Louisiana and asked the proprietor to show him a 1987 Pontiac for sale. After the proprietor started the car to show the engine, Treadaway drove away with the vehicle without permission. The police received a phone call three days later identifying the location of the Pontiac. It was recovered in good condition.
Eric Treadaway was convicted on January 23, 1997 of theft of property valued at $500 or more in violation of LA. REV. STAT. ANN § 14:67.B(l). On July 25, 1997. a multiple bill hearing was held based on petitioners convictions in 1982, 1986, and 1995. On August 1, 1997, pursuant to Treadaway's status as an habitual offender, he was sentenced to life imprisonment without the benefit of parole, probation, or suspension of sentence. He is presently incarcerated in the Louisiana State penitentiary located at Angola, Louisiana. On March 25, 1998, the Louisiana Fifth Circuit Court of Appeal upheld petitioner's conviction and his writ application to the Louisiana Supreme Court was subsequently denied. See State v. Treadway, 710 So.2d 1121 (La.App. 5th Cir. 1998); State v. Treadaway, 725 So.2d 490 (La. 1998).
After exhausting his direct appeal remedies, petitioner sought post-conviction relief. Beginning on June 3, 1999 in the trial court, Treadaway's efforts culminated in a denial from the Louisiana Supreme Court on January 12, 2001. See State ex rel. Treadaway v. State, 780 So.2d 1067 (La. 2001).
In the instant petition, petitioner raises the following eleven grounds for habeas corpus relief: (1) denial of effective assistance of counsel on appeal; (2) denial of effective assistance of counsel at trial; (3) insufficiency of evidence; (4) denial of right to present exculpatory evidence at trial; (5) denial of right to dismiss or substitute counsel; (6) insufficiency of evidence at habitual offender hearing; (7) prosecution in violation of ex post facto law; (8) imposition of excessive sentence; (9) denial of full record for appellate review; (10) denial of right to self-representation.
II. DISCUSSION
A. Standard of Review
The Antiterrorism and Effective Death Penalty Act of 1996, effective April 24, 1996, comprehensively revised federal habeas corpus legislation and instituted revised standards of review for federal habeas claims adjudicated on the merits in state court. Under the AEDPA, a federal habeas court may not grant a state prisoner's application for a writ of habeas corpus with respect to claims adjudicated on the merits in state court unless the state-court adjudication resulted in a decision that (1) was contrary to, or involved an unreasonable application of clearly established federal law as determined by the Supreme Court; or (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding. See 28 U.S.C. § 2254 (d). The Supreme Court recently held that a decision is contrary to clearly established federal law if the state court arrives at a conclusion opposite to that reached by the Supreme Court on a question of law, or if the state court decides a case differently than the Supreme Court has on a set of materially indistinguishable facts. See Williams v. Taylor, 529 U.S.362, 120 S.Ct. 1495, 1523 (2000); accord Hill. v. Johnson, 210 F.3d 481 (5th Cir. 2000). The Court held that a federal court may grant a writ of habeas corpus only if the state court unreasonably applies the correct governing legal principle to the facts of the prisoner's case. See Id. The state court's findings of fact are entitled to a presumption of correctness, rebutable only by clear and convincing evidence. See 28 U.S.C. § 2254(e)(1).
B. Ineffective Assistance of Counsel (At Trial and Appeal)
Petitioner claims that he suffered ineffective assistance of both trial and appellate counsel. To prevail on an ineffectiveness claim, petitioner must demonstrate (1) that his counsel's performance was deficient; and (2) that his counsel's deficient performance prejudiced the outcome of his trial. See Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052 (1984) Petitioner must satisfy both prongs of the Strickland test in order to succeed. See id. at 687, 104 S.Ct. at 2064. To establish a deficient performance, petitioner must show that his counsel's representation "fell below an objective standard of reasonableness." Jones v. Jones, 163 F.3d 285, 301 (5th Cir. 1998) ( quoting Strickland, 466 U.S. at 688, 104 S.Ct. 2052) The Court applies a highly deferential standard to the examination of counsel's performance, making every effort to eliminate the distorting effects of hindsight and to evaluate the conduct from counsel's perspective at the time of trial. See id. ( quoting Pitts v. Anderson, 122 F.3d 275, 279 (5th Cir. 1997)). See also Lockhart v. Fretwell, 506 U.S. 364, 371, 113 S.Ct. 838, 844 (1993) (on ineffective assistance claim, courts judge counsel's conduct on the facts of the particular case, viewed as of the time of counsel's conduct) ( quoting Strickland, 466 U.S. at 690, 104 S.Ct. at 2066)).
The second, or prejudice, prong of Strickland requires petitioner to show that "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome." Strickland, 466 U.S. at 694, 104 S.Ct. at 2068.
1. Ineffective Trial Counsel
Petitioner argues that his constitutional rights were violated because trial counsel did not interview witnesses until the day of the trial, did not give an opening statement, did not present exculpatory evidence at trial, and provided a defense different from that agreed.
Petitioner contends that he was prevented from obtaining more effective witnesses because he did not realize the content of his witnesses' testimony until the day of the trial. Petitioner contends that certain testimony would have been more helpful if trial counsel had interviewed the witnesses earlier. Petitioner claims that if trial counsel had interviewed Major Fred Williams before trial, Major Williams would have identified petitioner as the person who had called in to "tip off" the location of the stolen vehicle. However, Major Williams testified that he had notes of the call; therefore, interviewing him earlier would not have helped to refresh his memory. Therefore, petitioner fails to establish prejudice from the asserted failure to interview Major Williams earlier.
Petitioner also contends that he could have obtained a more beneficial expert witness to refute Nurse Nelson's testimony had counsel interviewed Nurse Nelson earlier. In order to show prejudice for failing to contact a witness, a petitioner must show that the testimony of the witness would have been favorable and that the witness would have testified at trial. See Alexander v. McCotter, 775 F.2d 595, 602 (5th Cir. 1985). Petitioner has failed to identify who he would have called and what his testimony would have been; therefore he fails to establish prejudice under Strickland.
Petitioner also contends that counsel failed to present exculpatory evidence at trial. Petitioner claims that counsel should have presented evidence of a domestic dispute between petitioner and his girlfriend that ended with the girlfriend's driving away in petitioner's car. Petitioner claims that this negates his intent; therefore counsel should have presented this evidence at trial. Counsel's decision as to what evidence to present is one of strategy. Further, even if counsel should have presented this evidence, petitioner has not demonstrated prejudice. It is not probable that the evidence would have changed the result of the trial since the story explains that after the dispute petitioner was left without a car. If anything, this evidence would have most likely provided a motive for the crime.
Petitioner also complains that counsel did not give an opening statement. Failure to give an opening statement is also a decision of trial tactics. Further, petitioner fails to show any prejudice under Strickland. Finally, petitioner argues that trial counsel presented a defense opposite of that agreed. Again, this is a matter of trial strategy, and petitioner does not demonstrate prejudice under Strickland. The Court therefore dismisses petitioner's ineffective assistance of trial counsel claims.
2. Ineffective Assistance of Appellate Counsel
Petitioner claims that appellate counsel was ineffective for not raising all issues on appeal that petitioner desired. Petitioner specifically objects to counsel's failure to brief his habitual offender determination. Again, this decision was strategic. Further, as stated below, this claim lacks merit; therefore, petitioner fails to demonstrate prejudice under Strickland. Therefore, the Court dismisses petitioner's ineffective assistance of appellate counsel claims.
C. Insufficient Evidence at Trial
Petitioner claims that the State presented insufficient
evidence to convict him. In evaluating sufficiency of the evidence, "the relevant question is whether . . . any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789 (1979); Porretto v. Stalder, 834 F.2d 461, 467 (5th Cir. 1987). A federal court must review petitioner's challenge in the light most favorable to the prosecution. See Jackson, 443 U.S. at 319, 99 S.Ct. at 2789. When, as in this case, a state appellate court has reviewed the sufficiency of the evidence, that court's opinion must be given great weight. See Parker v. Procunier, 763 F.2d 665, 666 (5th Cir. 1985) ( citing Jackson, 443 U.S. at 322, n. 15, 99 S.Ct. at 2791 n. 15); accord Duff-Smith v. Collins, 973 F.2d 1175, 1183 (5th Cir. 1992). Indeed, as indicated above, the AEDPA presumes the correctness of state court findings of fact, and places a "clear and convincing" burden on the petitioner who attempts to rebut that presumption. See 28 U.S.C. § 2254(e)(1). The Court applies this deferential standard of review with "explicit reference to the substantive elements of the criminal offense as defined by state law." Jackson, 443 U.S. at 324 n. 16, 99 S.Ct. at 2792 n. 16.
Applying this standard here, this Court must deny petitioner's challenge unless no rational juror could have found the essential elements of theft beyond a reasonable doubt. Louisiana law defines the intent element of theft as an "intent to deprive the other permanently [of its property]." LA. REV. STAT. ANN. § 14:67.A. Petitioner argues that because he made a phone call that lead to the discovery of the stolen car, he did not have the requisite intent to permanently deprive the owner of the car.
Specific criminal intent is defined as "the state of mind which exists when the circumstances indicate that the offender actively desired the prescribed criminal consequences to follow his act or failure to act." Id.§ 14:10(1). The jury can infer specific intent, and any other element of the offense, from the circumstances of the crime and the actions of the defendant. See Jackson, 443 U.S. at 324-25, 99 S.Ct. at 2791-93; Schrader v. Whitley, 904 F.2d 282, 287 (5th Cir. 1990)
Even assuming that Treadaway did in fact make the call in order to return the car, a rational jury could have nevertheless found the requisite intent, because intent is found at the time of the commission of the crime. That petitioner later sought to return the car does not prevent a reasonable finding that he sought to permanently deprive the owner at the time of the crime. Therefore, the Court finds that the state court's conviction was not unreasonable and dismisses petitioner's insufficiency of evidence claim.
D. Denial of Right to Present Exculpatory Evidence at Trial
Petitioner also argues that his constitutional rights were violated because the State withheld exculpatory evidence from him. Petitioner claims that the State prevented him from introducing his medical records to support his involuntary intoxication defense at trial and evidence of the domestic dispute between him and his girlfriend prior to the theft. These claims are governed by Brady v. Maryland, 373 U.S. 83, 87, 83 S. Ct. 1194 (1963), and require a court to find that: (1) evidence was suppressed; (2) the evidence was favorable to the accused; and (3) the evidence was material to guilt or punishment. See Little v. Johnson, 162 F.3d 855, 861-2 (5th Cir. 1998) "[E]vidence is material only if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different." United States v. Bagley, 473 U.S. 667, 682, 105 S.Ct. 3375 (1985)
Petitioner fails to demonstrate that the evidence was favorable or material. There is not a reasonable probability that the introduction of medical evidence would have changed the outcome of the trial in light of Nurse Nelson's testimony that petitioner was not on medication that impairs judgment at the time of the theft. In addition, it is not reasonably probable that evidence of the domestic dispute would have been favorable to petitioner's defense. Therefore, the Court dismisses petitioner's claim based in the suppression of exculpatory evidence.
E. Denial of Right to Dismiss or Substitute Counsel
Petitioner also claims that the Magistrate Judge did not sufficiently address his claim regarding the right to substitute counsel. The Court disagrees. As the. Magistrate Judge stated, petitioner's assignment of error does not state a constitutional claim for which relief can be granted because there is no Sixth Amendment right to counsel of choice. Thus, petitioner had no right to substitute counsel. See Morris v. Slappy, 461 U.S. 1, 14-15, 103 S.Ct. 1610, 1617-18 (1983) (the Sixth Amendment Right to counsel does not include a meaningful attorney client relationship). Therefore, the Court dismisses petitioner's claim regarding the denial of the right to substitute or dismiss counsel.
F. Insufficiency of Evidence at Habitual Offender Hearing
Petitioner challenges the state court's determination that he was a habitual offender, claiming that his prior convictions were unconstitutionally obtained. The Supreme Court has held that federal postconviction relief is not available when a prisoner challenges a current sentence on the ground that it was enhanced based on an allegedly unconstitutional prior conviction for which the petitioner is no longer in custody. See Lackawanna County District Attorney v. Cross, — U.S., — , 121 S. Ct. 1567, 1570 (April 25, 2001). "[O]nce a state conviction is no longer open to direct or collateral attack in its own right because the defendant failed to pursue those remedies while they were available (or because defendant did so unsuccessfully), the conviction may be regarded as conclusively valid." See id. at 1574. Therefore, petitioner's previous convictions are presumptively valid and the state court is permitted to use them in determining offender status. Thus, the Court finds that the state court was not unreasonable in its determination that petitioner was a habitual offender; therefore, the Court dismisses this claim.
G. Ex Post Facto Violation
Petitioner claims that the trial court erred in applying LA. REV. STAT. ANN. 15:529.1(C), as amended in 1995, to calculate his sentence for the crime in question. Under the amended law, any conviction pursuant to which a defendant was discharged from state custody or supervision over ten years from the date of the next felony is not counted against him for the purpose of determining multiple offender status. Petitioner argues that the old version of the law with a five year cleansing period should apply to his 1982 and 1986 offenses.
Sentencing enhancements enacted after previous convictions but before instant convictions do not violate the Ex Post Facto clause of the United States Constitution. See Gryger v. Burke, 334 U.S. 728, 732, 68 S.Ct. 1256, 1258 (1948); Perkins v. Cabana, 794 F.2d 168, 169 (5th Cir. 1986); United States v. Rasco, 123 F.3d 222, 227 (5th Cir. 1997); United States v. Saenz- Forero, 27 F.3d 1016, 1018-21 (5th Cir. 1994). Such enhancement statutes only affect the punishment for future crimes, not past behavior; therefore, such statutes are not retroactive in effect and do not violate the Ex Post Facto Clause. Therefore, the Court dismisses this claim.
H. Excessive Sentence
Petitioner also contends that his life sentence is excessive and violates the Eighth Amendment. Courts may grant federal habeas relief only for constitutional violations. The Eighth Amendment forbids cruel and unusual punishment. If a sentence is within statutory limits, a federal habeas court will not upset the terms of that sentence unless it is so disproportionate to the offense as to be completely arbitrary and shocking. See Bonner v. Henderson, 517 F.2d 135, 136 (5th Cir. 1975). In Rummel v. Estelle, 445 U.S. 263, 100 S.Ct. 1133 (1980), the United States Supreme Court held that a mandatory life sentence imposed under a recidivist statute did not constitute cruel and unusual punishment for conviction of obtaining money by false pretenses when previous convictions included fraudulent use of a credit card and passing a forged check. Based on this authority, the Court finds that petitioner's sentence is not excessive, and the Court denies this claim.
I. Denial of Full Record for Appellate Review
Petitioner argues that he was denied a full record for appeal purposes. "[T]he State must afford the indigent a "record of sufficient completeness to permit proper consideration of (his) claims." Mayer v. City of Chicago, 404 U.S. 189, 194, 92 S. Ct. 410, 414 (quoting Draper v. State of Washington, 372 U.S. 487, 499, 83 S. Ct. 774, 781).
Petitioner contends that portions of the trial transcript dealing with his request to proceed pro se were unavailable. According to the Magistrate Judge's review of the state record, petitioner did receive his transcripts. Further, that the state appellate court adjudicated petitioner's self-representation claim demonstrates that the transcript was available and utilized. Therefore, the Court dismisses this claim as well.
J. Denial of Right to Self-Representation
Petitioner claims that he was denied the right to represent himself at trial. In its denial of petitioner's self- representation claim, the Louisiana Fifth Circuit Court of Appeal relied on McKaskle v. Wiggins, 465 U.S. 168, 183, 104 S.Ct. 944, 953 (1984), for the proposition that right to self-representation may be implicitly waived if not re-raised in the instant case. The state appellate court found that petitioner had acquiesced to the participation of appointed counsel and that his subsequent request to dismiss his attorney was a request for a different attorney, not to represent himself. The Court finds that this is a reasonable application of McKaskle and dismisses this claim.
III. CONCLUSION
For the foregoing reasons, the Court dismisses petitioner's petition for habeas corpus.
New Orleans, Louisiana, this 29th day of June, 2001.