Opinion
Civil Action Number, 99-3272, Section "G" (1)
May 1, 2000
REPORT AND RECOMMENDATION
This matter was referred to a United States Magistrate Judge for the purpose of conducting hearings, including an evidentiary hearing, if necessary, and submission of proposed findings and recommendations for disposition pursuant to 28 U.S.C. § 636 (b)(1)(B) and (C), and, as applicable, Rule 8(b) of the Rules Governing Section 2254 cases. Upon review of the entire record, the court has determined that this matter can be disposed of without an evidentiaxy hearing. See 28 U.S.C. § 2254(e)(2). Accordingly, it is recommended that the petition be DISMISSED WITH PREJUDICE.
Under Section 2254(e)(2), the decision of whether to hold an evidentiary hearing is a statutorily mandated determination. According to the section, the district court may hold an evidentiary hearing only when the petitioner has shown that either the claim relies on a new, retroactive rule of constitutional law that was previously unavailable ( 28 U.S.C.A. § 2254(e)(2)(A)(I)), or the claim relies on a factual basis that could not have been previously discovered by an exercise of due diligence ( 28 U.S.C.A. § 2254(e)(2)(A)(ii)); and the facts underlying the claim show by clear and convincing evidence that, but for the constitutional error, no reasonable jury would have convicted the petitioner ( 28 U.S.C.A. § 2254(e)(2)(B)).
The Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA") comprehensively revised federal habeas corpus legislation, including 28 U.S.C. § 2254. The AEDPA went into effect on April 24, 1996 and applies to habeas corpus petitions filed after that date. United States v. DeLario, 120 F.3d 580, 581 (5th Cir. 1997) (citing Lindh v. Murphy, 117 S.Ct. 2059, 2060 (1997)). The amended statute therefore applies to the instant petition, which was filed well after the amendments went into effect.
The AEDPA, which was signed into law on that date, does not specify an effective date for its non-capital habeas corpus amendments. Absent legislative intent to the contrary, statutes become effective at the moment they are signed into law. United States v. Sherrod, 964 F.2d 1501, 1505 (5th Cir. 1992), cert. denied, 113 S.Ct. 834 (1992).
The statute also requires that a petitioner bring his federalhabeas corpus claims within one year of the date on which his conviction became final. 28 U.S.C. § 2254(d)(1). Another threshold issue for a federal court when reviewing a habeas petition is whether the claim raised by petitioner was adjudicated on the merits in state court; i.e., the petitioner must have exhausted state court remedies and not be in "procedural default" on a claim. 28 U.S.C. § 2254(b)(1)(A).
Amended subsections 2254(d)(1) and (2) contain revised standards of review for questions of fact, questions of law and mixed questions of fact and law. As to questions of fact, the amended statute "permits federal court relief if the state court adjudication of the claim resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence." Drinkard, 97 F.3d at 768 (citing 28 U.S.C. § 2254 (d)(2)).
Drinkard v. Johnson, 97 F.3d 751, 767 (5th Cir. 1996), cert. denied, 117 S.Ct. 1114 (1997), overruled in part by Lindh v. Murphy, 521 U.S. 320, 117 S.Ct. 2059, 2068 (1997). The Supreme Court in Lindh overruled the Fifth Circuit's conclusion in Drinkard that the provisions of the AEDPA could be applied retroactively to cases pending on its effective date. However, the standards of review set forth in Drinkard for claims subject to the AEDPA were not addressed by Lindh and remain the law of this circuit to the extent they do not conflict with the holding in Lindh. Nobles v. Johnson, 127 F.3d 409, 413 n. 4, 416 (5th Cir. 1997), cert. denied, 118 S.Ct. 1845 (1998); Green v. Johnson, 116 F.3d 1115, 1120 n. 2 (5th Cir. 1997). Because the petition in this matter is subject to the AEDPA, the new standards govern this court's review.
As to questions of law, on the other hand, "a federal court may grant habeas relief only if it determines that a state court's decision rested on a legal determination that was contrary to . . . clearly established Federal law, as determined by the Supreme Court." Id. at 768.
"[W]hen reviewing a mixed question of law and fact, a federal court may grant habeas relief only if it determines that the state court decision rested on "an unreasonable application of clearly established Federal law, as determined by the Supreme Court, to the facts of the case." Id. (quoting 28 U.S.C. § 2254(d)(1)). The Fifth Circuit further explained the standard of review applicable to mixed questions of fact and law as follows: "[A]n application of law to facts is unreasonable only when it can be said that reasonable jurists considering the question would be of one view that the state court ruling was incorrect. In other words, we can grant habeas relief only if a state court decision is so clearly incorrect that it would not be debatable among reasonable jurists." Id. at 769.
In addition, the amended statute codifies the "presumption of correctness" that attaches to state court findings of fact and the "clear and convincing evidence" burden placed on a petitioner who attempts to overcome that presumption. Id. § 2254(e)(1). This court must therefore accord a presumption of correctness to the facts as found by the state court, and, unless petitioner rebuts them by clear and convincing evidence, this court is required to accept as conclusive both the factual findings and the credibility choices of the state court. Id.
BACKGROUND
Petitioner is a state prisoner presently serving a life sentence for one count of second degree murder, a violation of La. R.S. 14:30.1. He is currently incarcerated at the Louisiana State Penitentiary in Angola, Louisiana. He is in custody for purposes of 28 U.S.C. § 2254.
On November 13, 1992, the petitioner appealed his conviction to the Fourth Circuit on the grounds that: 1) the trial court erred in denying his motion at trial to suppress the guns; 2) the initials on Elmo Garner's statement were not his and that therefore the search warrant was not valid; 3) petitioner should have been allowed to recall an unnamed witness at the motion hearing; 4) the trial court erred by not requiring the State to furnish petitioner with a copy of the victim's prior conviction record; 5) the trial court erred in its instructions to the jury regarding self-defense; and 6) the state failed to present sufficient evidence to support the conviction. (State R. vol. 1) On July 15, 1993, the Fourth Circuit upheld the conviction. State v. Garner, 621 So.2d 1203 (La.App. 4 Cir. 1993). Subsequently, the Louisiana Supreme Court summarily denied petitioner's application for writ of certiorari on November 12, 1993. State v. Garner, 627 So.2d 661 (La. 1993). The petitioner's conviction became final fourteen days after this ruling, on November 27, 1993. La. Code Crim. Proc. Ann art. 922 (West 1991).
On November 6, 1996, petitioner filed an application for post-conviction relief in the trial court. In that application, petitioner raised the following issues: 1) his trial attorney had an actual conflict of interest; 2) his trial attorney rendered ineffective assistance because of the alleged conflict; 3) the trial court erred by not recognizing a conflict of interest; 4) improper instruction on the law of principals, and; 5) ineffective assistance of counsel for failure to object the principals instruction. (State R., vol. 3, Exh. C). The trial court denied petitioner's post-conviction relief application on February 7, 1997 holding that the application was filed untimely under Article 930.8 of the Code of Criminal Procedure. (State R., vol. 3, Exh. A). Petitioner then applied for "Reconsideration of Dismissal of Application For Post Conviction Relief" to the district court on February 17, 1997. The record supports petitioner's argument that the district court never responded to this motion. Traverse to the State's Response at 3. On approximately September 24, 1998, under case no. 98-K-2312, petitioner filed an Application for Writ of Mandamus to the Fourth Circuit. (State R., vol. 3 at Exh. G). On October 27, 1998 the Louisiana Fourth Circuit denied the petitioner relief finding only that "[r]elator's claims have no merit." State v. Garner, unpublished opinion, 98-K-2312 (La.App. 4 Cir. 10/27/98) (State R., vol. 3 at Exh. H). Petitioner then submitted a motion for Reconsideration of Denial of Writ of Mandamus (State R., vol. 3 at Exh. I), that was summarily denied on November 30, 1998. Louisiana v. Garner, unpublished opinion, 98-K| 2312 (La.App. 4 Cir. 11/30/98) (State R., vol. 3 at Exh. J). Petitioner filed for supervisory writs to the Louisiana Supreme Court on June 22, 1999. (State R., vol. 3). The Supreme Court summarily denied the writ on July 2, 1999. Garner v. Louisiana, 99-KH-195 (La. 6/2/99) (State R., vol. 3 at Exh J). On December 28, 1999. petitioner filed the instant writ claiming that: 1) the denial of conflict-free counsel was in violation of the Sixth and Fourteenth Amendments; 2) petitioner was denied the right to conflict-free counsel when the trial judge failed to inquire into the possible conflict of interest; and 3) the Louisiana Fourth Circuit Court of Appeal committed reversible error by holding that petitioner's brother's statement was admissible at trial. See Petition at p. x. Respondent argues that the petition should be dismissed because the claims are: 1) time-barred by the provisions of the AEDPA; 2) procedurally barred and unexhausted; 3) devoid of merit. For the reasons discussed, the court finds that none of petitioner's claims are time-barred under the AEDPA; that petitioner's claims one and two are procedurally barred; and that claim three is without merit. The court therefore recommends that the petition be dismissed.
All citations to exhibits in state volume record three refer to exhibits annexed to petitioner's Application for Supervisory Writs to the Louisiana Supreme Court, 99-Ku-195, filed on June 6, 1999.
argues that "there is no such motion in the Criminal District Court record indicating it was never filed." Response to Petition at p. 8, fn. 4. Independent research by this court however indicates otherwise. The state record contains a copy of this motion, (State R., vol 3 at Exh. F), and petitioner has provided the court with copies of receipts indicating that the motion was sent to the district court return receipt requested/certified mail. Petition, Exh. F.
The state argues that as petitioner's filing date was extended by 89 days, petitioner's time for filing post-conviction relief expired on July 22, 1997. Response to Petition at pp. 8-9. The state admits however that in making this calculation, it did not consider petitioner's alleged filing of a Motion to Reconsider to the district court petitioner alleges he filed on February 17, 1997. Response to Petition at p. 8, fn. 4. Petitioner argues that the Motion to Reconsider was properly filed. Traverse to the State's Response at p. 3. Review of petitioner's exhibits reveals substantial evidence, i.e., return receipt cards and certified mailing receipts to the district court as evidence that petitioner did actually file this motion on or around February 17, 1997. See Petition, Exh. F. The court finds that the filing of the Motion to Reconsider extended petitioner's time such that the filing of this petition is timely under the AEDPA.
STATEMENT OF FACTS
The facts are taken from the Louisiana Fourth Circuit opinion rendered on petitioner's direct appeal. State v. Garner, 621 So.2d 1203, 1204-1206 (La.App. 4th Cir. 1993).
Taunya Joshua testified that in the early morning hours of November 6, 1990, she and her boyfriend, the victim Tommy Gilmore, were at a bar. Elton "Plum" Clayton slapped Lynn Smith, girlfriend of Steven Garner, on the behind. The victim, Tommy Gilmore, then punched Glenn Garner. Glenn Garner, Steven Garner and Harold Lyons then left the bar. Twenty minutes later, Joshua saw the three men circling the block. Glenn Garner drove while Steven Garner and Harold Lyons sat in the passenger seat and back seat, respectively. Forty minutes later, Glenn Garner came into the bar and told Gilmore to step outside so they could fight. When Gilmore opened the door of the bar, Joshua could see Steve Garner and Harold Lyons holding guns. Shots erupted. Joshua could not see who had fired.
Dr. William Newman, an expert anatomic pathologist, performed the autopsy. He said the victim suffered a gunshot wound to the left hand, and to the right thigh, two gunshot wounds to the chest and a gunshot wound to the ear. Either one of the wounds to the chest or the wound to the head was fatal. The bullet recovered from the chest was a smaller caliber than the bullet removed from the skull.
Sergeant Bruce Harrison obtained a search warrant for the Garner residence. They discovered two weapons in a garbage bag in the backyard of the residence. He said he took Joshua's statement and that she believed the Garner brothers had shot the victim.
Lynn Smith testified that when Clayton tried to touch her, Steve Garner told him to leave her alone. Clayton went outside and summoned Gilmore, a man named Dion, and a man named June. All of them came back in the bar and stood around Steve Garner. The men went outside the bar. Smith followed and saw Glenn Garner fist fighting with the victim. The Garner brothers and Harold Lyons then left. Later, she saw the three pass the bar in a car. Still later, she, Steve Garner, and Harold Lyons were standing outside the bar. She saw Gilmore come out of the bar and attempt to run. She saw Harold Lyons shoot Gilmore. On cross, she said Gilmore and Clayton were members of a gang called the "Tuesday Crew" known for carrying guns and committing acts of violence. She said she did not know if they had guns on the night of the crime.
Detective Dwight Deal testified he and Detective Melvin Winnins drove Smith to the Garner residence so they could get an accurate description. As they approached the house, Smith pointed out the Garner brothers who were standing outside. The men ran into the house upon seeing the police car. The officers called for a back-up. They knocked on the door and the Garners' father answered. The officers then arrested the two men. Elmo Garner, another brother, was also taken to the homicide office, but he was not arrested because the officers learned he was not present at the shooting. Elmo Garner told the officers the guns were at the house. Harold Lyons was also present at the house, but the officers did not arrest him because they did not know at the time he had been involved in the crime.
John Treadway, a firearms expert with NOPD, testified he examined four bullets. Three of the bullets were discovered in the autopsy and one was discovered at the scene. Treadway stated two of the bullets from the autopsy were fired from one gun recovered from the Garner residence. The third bullet from the autopsy and a bullet from the scene were fired from the second gun recovered.
Barbaroso Welch, legal assistant to the firm representing the Garner brothers, testified Smith told him that Clayton and Dion removed the jewerly and pocket contents from the victim and that Dion picked up a revolver and threw it into a vacant lot.
The defense then called Lynn Smith who testified she saw the victim with a gun after the fist fight.
Steven Garner testified Clayton approached Smith while they were in the bar. Garner told him to leave. He left and returned with friends including Dion and the victim. The men went outside. Clayton hit Glenn Garner in the face with a weapon. Then Glenn and Steven Garner and Lyons left in a car. Steven Garner admitted they were armed. After going to another bar, the men were returning home when they passed the first bar. Steven Garner saw Smith, and they stopped to talk to her. Glenn went inside to get a beer. When he came back out, Gilmore followed him. Steven realized Gilmore had a gun and he called out to Glenn. Gilmore fired. Steven fired, and Glenn fired. On cross examination, Steven Garner denied circling the block. He said Lyons did not have a gun. He also said he did not know how many bullets he or his brother fired. He admitted putting the guns in the trash behind his house. He said he was never advised of his rights and was told he would be set free if he told the truth. He denied telling Winnins that he had taken the victim's gun away from him and shot him with it. Id. 621 So.2d at 1204-1206.
ANALYSIS
Petitioner's Habeas Claims One and Two are Procedurally Barred
Petitioner alleges that the trial court committed reversible error by: 1) improperly denying petitioner conflict-free counsel in violation of the Sixth and Fourteenth Amendments; and 2) denying petitioner the right to conflict-free counsel when the trial judge failed to inquire into the possible conflict of interest. Petition at p. viii. As discussed, these claims were not raised on direct appeal, but were contained in the November 6, 1996, application for post-conviction relief submitted to the district court. For the reasons that follow, the court recommends dismissal of these claims.
Petitioner's habeas claims one and two were first addressed in petitioner's post-conviction relief application to the district court which found specifically that petitioner was precluded from raising these claims because they were untimely. As such, the trial court never reached the merits of these claims. Petitioner's subsequent writ applications to the Louisiana Fourth Circuit and the Louisiana Supreme Court raised only the issue of the trial court's reliance on the procedural bar, and not the merits of petitioner's actual claims. As such, petitioner has not adequately exhausted his state court remedies as to all claims brought in his post-conviction applications.
In Drinkard, 97 F.3d at 767, the Fifth Circuit held that the threshold question in habeas review is whether the claim raised by the petitioner was adjudicated on the merits in state court; i.e., the petitioner must have exhausted state court remedies and not be in procedural default on a claim. When a state law default prevents the state court from reaching the merits of a federal claim, that claim can ordinarily not be reviewed in federal court. See Ylst v. Nunnemaker, 111 S.Ct. 2590, 2593 (1991). Generally speaking, in order for a claim of procedural default to preclude federal review of a habeas petitioner's claim, the last state court issuing a reasoned decision must have clearly and unequivocally relied upon the procedural default as an independent and adequate ground for denying relief. Harris v. Reed, 109 S.Ct. 1038, 1043 (1989).
Where, as here, the last state court judgment is unclear as to what formed the basis of the opinion, a federal court should look at the last "reasoned" state court opinion for clarification. The habeas court will presume that the last state court judgment relied upon the same grounds as the last "reasoned" state court opinion. Ylst, 111 S.Ct. at 2593. Put simply, in this case, the trial court opinion finding the post-conviction application unexhausted and procedurally barred is controlling because it is the last "reasoned" state court opinion.
When the last state court to write a reasoned opinion rests its decision on a claim for relief on state procedural grounds, the petitioner may obtain federal habeas review of that same claim only if he can show cause and actual prejudice for his procedural default or that a failure to address the merits of the federal claim would result in a miscarriage of justice. Harris, 109 S.Ct. at 1043. Tn order to satisfy the "miscarriage of justice" test, the petitioner must supplement his constitutional claim with a colorable showing of factual innocence. See Sawyer v. Whitley, 112 S.Ct. 2514, 2517 (1992); May v. Collins, 955 F.2d 299, 308 (5th Cir.), cert. denied, 112 S.Ct. 1925 (1992). To satisfy the "factual innocence" standard, a petitioner must establish a fair probability that, considering all of the evidence now available, the trier of fact would have entertained a reasonable doubt as to the defendant's guilt. See Sawyer, 112 S.Ct. at 25 16-19.
In petitioner's case, the state trial court expressly concluded that the issues raised in petitioner's post-conviction application were untimely. Therefore, the holding by the state trial court precludes further review by this court unless petitioner can establish either cause and actual prejudice for his procedural default or that a failure to address the merits of the federal claim would result in a miscarriage of justice. Harris, 109 S.Ct. at 1043. Petitioner has not alleged facts sufficient to establish either cause or actual prejudice. Further, petitioner has alleged no facts in which to establish that he is "factually innocent." Thus, petitioner has procedurally defaulted grounds one and two in his petition for federal habeas corpus relief, and this court may not review the merits of these claims.
Petitioner's Habeas Claim Three is Without Merit.
In claim three, petitioner argues that the trial court erred in denying his motion to suppress the guns and the statement from petitioner's brother Elmo Garner who told police where the guns had been located. Petitioner argues that because Elmo Garner had not been informed of his Miranda rights, his statement should have been suppressed. As this claim was raised by petitioner on direct appeal, it is properly exhausted and ripe for habeas review.
As discussed, federal habeas law provides that claims that have been adjudicated on the merits in state court will not be disturbed on habeas review unless the decision was contrary to or involved an unreasonable application of clearly established Federal law, as determined by the Supreme Court, or the state adjudication resulted in a decision that was based on an unreasonable determination of the facts. 28 U.S.C. § 2254(d). In Louisiana v. Garner, 621 So.2d 1203, 1208-1209 (La.App. 4 Cir. 1993), the court made the following findings regarding this claim:
The inevitable discovery doctrine, however may be applicable. In Nix v. Williams, 467 U.S. 431, 104 S.Ct. 2501, 81 L.Ed.2d 377 (1984), the U.S. Supreme Court held that unconstitutionally obtained evidence may be admitted at trial if it would inevitably have been seized by police in a constitutional manner. The court's decision was based on its belief that it is unfair to penalize the government through application of the exclusionary rule where the police would have obtained the evidence even if no misconduct occurred.
* * *
In applying the inevitable discovery exception, we rely on the following facts. The officers testified they went to the residence to verify the address and to obtain a description of the property. Therefore, it is assumable that they intended to obtain a search warrant for the residence, not merely an arrest warrant for the defendants. The defendants were found outside their house only a matter of hours after the crime was committed. Since they did not have a long time to plan disposal of the guns, the guns were likely to be found in the residence. Thus, the officers would have obtained a search warrant for the house without the statement of Elmo Garner and would have found the guns in the backyard since the gun protruded from the bag in which they were contained and were in the officers' plain view.
As an initial matter, this court notes that this claim has been adjudicated on the merits in the state courts. See Louisiana v. Garner, 621 So.2d 1203 (La.App. 4 Cir. 1993); Louisiana v. Garner, 627 So.2d 661 (La. 1993). As such, the state court findings of fact are reversible in habeas review only if the "state court adjudication of the claim resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence." A federal habeas court will set aside state court findings of law only if the state court decision rested upon a legal determination that was contrary to clearly established federal law, as determined by the Supreme Court. Regarding mixed questions of fact and law, habeas relief will only be granted if a state court ruling "is so clearly incorrect that it would not be debatable among reasonable jurists." Drinkard v. Johnson, 97 F.3d 751, 769 (5th Cir. 1996). This court finds the state appellate court findings reasonable and in full compliance with Supreme Court precedent.
In addition, federal habeas review is limited to questions of constitutional dimension and federal courts generally do not review the admissibility of evidence under state law. Jernigan v. Collins, 980 F.2d 292, 298 (5th Cir. 1992), cert. denied, 113 S.Ct. 2977 (1993). Such review is proper only to determine whether a state trial judge's error is so extreme as to "render the trial fundamentally unfair or violate an explicit constitutional right." Peters v. Whitlev, 942 F.2d 937, 940 (5th Cir. 1991), cert. denied, 112 S.Ct. 1220 (1992). In determining whether there has been a denial of fundamental fairness, the Fifth Circuit has stated that the erroneous admission of prejudicial evidence justifies federal habeas corpus relief only if it is "limited in the sense of a crucial, critical, highly significant factor." Hills v. Henderson, 529 F.2d 397, 401 (5th Cir.), cert. denied, 97 S.Ct. 139 (1976) (quotation omitted). Petitioner has not established that the admission of evidence was so fundamentally unfair as to constitute a denial of due process. For these reasons, the claim should be dismissed.
RECOMMENDATION
After a thorough review of the record and the briefs filed in this matter, the court finds no reason to disturb the state court's rejection of petitioner's claims. Accordingly, IT IS RECOMMENDED that petitioner's application for habeas corpus relief be DISMISSED WITH PREJUDICE.
OBJECTIONS
A party's failure to file written objections to the proposed findings, conclusions, and recommendation in a magistrate judge's report and recommendation within 10 days after being served with a copy shall bar that party, except upon grounds of plain error, from attacking on appeal the unobjected-to proposed factual findings and legal conclusions accepted by the district court, provided that the party has been served with notice that such consequences will result from a failure to object.Douglass v. USAA, 79 F.3d 1415, 1430 (5th Cir. 1996) (en banc).