Opinion
Civil Action No. 03-0276, SECTION "K"(5).
January 20, 2005
ORDER AND REASONS
After considering the Petition under 28 U.S.C. § 2254 for Writ of Habeas Corpus by a Person in State Custody, the record, the applicable law, the Report and Recommendation of the United States Magistrate Judge, and plaintiff's Objections received on September 9, 2004, and having conducted a de novo review of those portions of the Report and Recommendations to which objections are made as required by 28 U.S.C. § 636(b)(1), the Court hereby APPROVES the Report and Recommendation of the United States Magistrate Judge and ADOPTS it as its opinion in this matter.
(Rec. Doc. No. 1).
Report and Recommendation, (Rec. Doc. No. 18).
Petitioner's Objections to the Magistrate's Report and Recommendations, (Rec. Doc. No. 19).
I. STANDARD OF REVIEW
Magistrate judges are empowered by statute to preside over certain pretrial matters upon appointment by a district judge. 28 U.S.C. § 636(b)(1)(A); see also Rules Governing § 2254 Cases, Rule 10. A district court evaluating a magistrate judge's recommendation may adopt those portions of the recommendation to which no specific objection is made, as long as those sections are not clearly erroneous. See id.; Fed.R.Civ.P. 72(b). However, where a party makes "specific, written objections" within 10 days after being served with a copy of the magistrate's recommendations, the district court must undertake de novo review of those contested aspects of the report. 28 U.S.C. § 636(b)(1)(c); see also Fed.R.Civ.P. 72(b). The district judge may then "accept, reject, or modify the recommended decision, receive further evidence, or recommit the matter to the magistrate judge with instructions." Fed.R.Civ.P. 72(b).
II. FACTS AND PROCEDURAL HISTORY
Petitioner, John K. Johnson, is a state prisoner incarcerated in the Louisiana State Penitentiary in Angola, Louisiana as a result of his March 27, 1996 conviction of the first degree murder of Joseph Balog, a violation of La.Rev.Stat. 14:30 A(3). On April 3, 1996, Johnson was sentenced to serve life imprisonment at hard labor without benefit of parole, probation, or suspended sentence. Petitioner's conviction and sentence were affirmed on direct appeal on December 29, 1999. The Louisiana Supreme Court denied Petitioner's writ application on December 8, 2000. Johnson did not seek review in the U.S. Supreme Court.
Subsequently, Johnson sought post-conviction relief. The state district court denied the application on August 24, 2001. His writs for relief in the Louisiana Court of Appeal for the Fourth Circuit and in the Louisiana Supreme Court were denied on November 14, 2001 and November 22, 2002, respectively.
Petitioner filed a federal application for habeas corpus relief on January 10, 2003, which the magistrate judge found to be timely under 28 U.S.C. § 2244(d)(1), as amended by the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), Pub.L. No. 104-132, 110 Stat. 1214 (1996 (effective April 24, 1996). ( See Rec. Doc. No. 6.).
III. ANALYSIS
Magistrate Judge Chasez recommended that the Court deny Johnson's habeas petition and dismiss it with prejudice. In his response to the Report and Recommendations, Johnson contends the magistrate judge erred with respect to each and every claim. In reviewing petitioner's objections, this Court will address the complaints in the same order employed in Judge Chasez's report.
A. Erroneous Jury Instruction
Johnson claims the trial court unconstitutionally relieved the state of its burden to prove he had the specific intent to kill or inflict great bodily harm by virtue of its instruction to the jury regarding "principals." After reviewing the trial transcript, the Louisiana Fourth Circuit Court of Appeal rejected this claim, holding that Louisiana's contemporaneous-objection rule precluded redress. (State rec., vol. 7 of 7, p. 13). Due to this procedural default, petitioner's first claim is immune from federal review. "A federal court will not review a question of federal law decided by a state court if the decision rests on a state procedural default that is both adequate to support the judgment and independent of the merits of the federal claim, absent a showing of cause and prejudice for the default, or a showing that the failure to review the federal claim would result in a complete miscarriage of justice." Duncan v. Cain, 278 F.3d 537, 541, n. 3 (5th Cir. 2002), cert. denied, 537 U.S. 829, 123 S.Ct. 127, 154 L.Ed.2d 43 (2002) (citing Coleman v. Thompson, 501 U.S. 722, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991).
Petitioner avers that the Louisiana Fourth Circuit Court of Appeal later ruled on the merits of this claim during his pursuit of post-conviction relief, thus removing the procedural bar to habeas relief. ( See Rec. Doc. No. 19, p. 2-3). He bases this argument on the court's language: "In the interests of judicial economy, this court has reviewed all eleven of relator's claims and finds that he is not entitled to relief." ( See State rec., vol. 6 of 7). The magistrate judge correctly surmised that this one line statement did not constitute a determination on the merits with regard to petitioner's jury instruction challenge. In the case of such unexplained orders rejecting federal claims, it is presumed that the court did not review the merits, but relied on the last reasoned state court opinion. Ylst v. Nunnemaker, 501 U.S. 797, 802, 111 S.Ct. 2590, 15 L.Ed.2d 706 (1991).
Review of the merits of a claim by a state court will extinguish an existing state procedural bar to federal court review. See Ylst v. Nunnemaker, 501 U.S. 797, 801, 111 S.Ct. 2590, 15 L.Ed.2d 706 (1991).
While, it is possible for a petitioner to overcome a procedural default, Johnson has not demonstrated that he deserves relief under the narrow exceptions:
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 claims is barred unless the prisoner can demonstrate cause for the default and actual prejudice as a result of the alleged violation of federal law, or demonstrate that failure to consider the claims will result in a fundamental miscarriage of justice.Coleman v. Thompson, 501 U.S. 722, 750, 111 S.Ct. 2546, 2565, 115 L.Ed.2d 640 (U.S. 1991).
To establish cause for default under the first exception, a petitioner must "show that some objective factor external to the defense impeded counsel's efforts to comply with the State's procedural rule." Murray v. Carrier, 477 U.S. 478, 488, 106 S.Ct. 2639, 2645, 91 L.Ed.2d 397 (1986). The "fundamental miscarriage of justice" exception is "confined to cases of actual innocence, 'where the petitioner shows, as a factual matter, that he did not commit the crime of conviction.'" Fairman v. Anderson, 188 F.3d 635 (5th Cir. 1995) (citing Ward v. Cain, 53 F.3d 106, 108 (5th Cir. 1995). To establish actual innocence, a petitioner must "support his allegations with new, reliable evidence that was not presented at trial and must show that it was 'more likely than not that no reasonable juror would have convicted him in light of the new evidence.'" Id. (citing Schlup v. Delo, 513 U.S. 298, 327, 115 S.Ct. 851, 130 L.Ed.2d 808 (1995)). The Court has independently reviewed the record and found nothing to support an exception to the procedural default.
B. Constructive Amendment of Indictment
Petitioner claims that the trial court, by virtue of its instruction to the jury on principals, constructively amended his indictment, broadening it to include "a charge" of principal to murder. In response to the Report and Recommendations, Johnson asserts that he was "not informed he had to defend against being the actual perpetrator and to being a principal to the crime." (Rec. Doc. No. 19, p. 5). It is well-established that once issued, an indictment may not be broadened except by the grand jury. United States v. Young, 730 F.2d 221, 223 (5th Cir. 1984). To determine whether a jury instruction constructively amended an indictment, we must ask "whether the instruction permitted the jury to convict the defendant on a factual basis that effectively modified an essential element of the offense charged." United States v. Restivo, 8 F.3d 274, 279 (5th Cir. 1993). Johnson's indictment charged him with directly committing first degree murder. As noted by the magistrate, "[b]eing a principal to murder is not a crime separate and distinct from the murder itself." Indeed, "[t]hat the accused is indicted for the offense itself . . . irrefutably evidences that he is charged as a principal." State v. Peterson, 290 So.2d 307, 308 (La. 1974). Accordingly, petitioner's argument is without merit.
C. Denial of the Right to be Informed of the Nature and Cause of Charge
Johnson claims that the use of a "short form" indictment pursuant to La.C.Cr.P. Art. 465 violated his right to be informed of the nature and cause of the charge against him. This right, guaranteed by the Sixth Amendment, is extended to the States through the Fourteenth Amendment. See Spinkellink v. Wainwright, 578 F.2d 582, 608 (5th Cir. 1978). "It is settled in this Circuit that the sufficiency of a state indictment is not a matter for federal habeas corpus relief unless it can be shown that the indictment is so defective that the convicting court had no jurisdiction." Liner v. Phelps, 731 F.2d 1201, 1203 (5th Cir. 1984) (citing Branch v. Estelle, 631 F.2d 1229, 1233 (5th Cir. 1980). Petitioner has not met this burden. Short form indictments pursuant to LSA-C.Cr.P. art. 465 have withstood similar constitutional challenges. See id. See also State v. Juarbe, 824 So.2d 1240, 1250 (La.App. 4 Cir. 7/31/02), State v. Carger, 732 So.2d 97, 105 (La.App. 4 Cir. 3/24/99). The indictment in question describes the crime charged in language mirroring the definition of first degree murder in LSA-R.S. 14:30A(3). Additionally, the court is not limited to examining the indictment in determining whether the accused suffered a violation of his constitutional right to notice. See Dowell v. Lensing, 805 F.Supp. 1335, 1343 (M.D. La. 1992). As noted by Magistrate Chasez, the record demonstrates that petitioner had ample opportunity to gain a full understanding of the charge lodged against him during his pre-trial court appearances and through the trial of his original co-defendant, who had been charged pursuant to the same indictment. ( See Rec. Doc. No. 18, p. 21). Therefore, petitioner's objection fails.
D. Improper Communications with a Juror
Johnson contends that his right to a fair trial was prejudiced by improper communications between courtroom personnel and a juror. While private communications between jurors and third persons are presumed to be prejudicial, "this is a rebuttable presumption which may be overcome by showing that such communications were harmless and did not in fact prejudice the rights of the defendant." Johnson v. United States, 207 F.2d 314, 322 (5th Cir. 1953), cert. denied, 347 U.S. 938, 74 S.Ct. 632, 98 L.Ed. 1087 (1954). The AEDPA provides appropriate standard of review. Title 28 U.S.C. § 2254(d) states:
(d) 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 with respect to any claim that was adjudicated on ther 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.
The trial court ruled that the State successfully rebutted the presumption of prejudice with testimony presented in the evidentiary hearing. The Louisiana Fourth Circuit Court of Appeal considered the facts established at this evidentiary hearing and concluded that the trial court did not abuse its discretion in finding the testimony of two court employees more credible than that of the petitioner. As the magistrate observed, the Louisiana Fourth Circuit's reasoning does not represent an unreasonable application of Supreme Court law to the facts of petitioner's case. (Rec. Doc. No. 18, p. 27).
On appeal, the Louisiana Fourth Circuit Court of Appeal applied state law, which is indistinguishable from the Supreme Court law. See e.g., State v. Marchand, 362 So.2d 1090, 1092 (La. 1978); State v. Bibb, 626 So.2d 913 (La.App. 5 Cir. 1993), writ denied, 642 So.2d 188 (La. 9/16/94), citing Remmer v. United States, 347 U.S. 227, 229, 74 S.Ct. 450, 451, 98 L.Ed. 654 (1954).
Johnson objects to the magistrate's recommendation and argues "the state court findings were based on an unreasonable determination of the facts in light of the failure to question this juror during the state court evidentiary hearing on this matter." (Rec. Doc. No. 19, p. 9). Again, the AEDPA guides the court's review. Title 28 U.S.C. § 2254(e)(1) provides:
(e)(1) 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.
The petitioner has not met this burden. In essence, Johnson argues that without the testimony of the juror, there was insufficient evidence for the court to make a correct determination. "Sufficiency of the evidence" challenges are guided by Title 28 U.S.C. § 2254(f):
(f) If the applicant challenges the sufficiency of the evidence adduced in such State court proceeding to support the State court's determination of a factual issue made therein, the applicant, if able, shall produce that part of the record pertinent to a determination of the sufficiency of the evidence to support such determination . . . [and] the court shall determine under the existing facts and circumstances what weight shall be given to the State court's factual determination.
After reviewing the record, this Court rejects petitioner's challenge.
E. Insufficiency of Evidence
Johnson claims the State failed to prove he had the requisite "specific intent" to support his first degree murder conviction. The standard for reviewing sufficiency of the evidence for a conviction was explained in Jackson v. Virginia, 443 U.S. 307 (1979). The reviewing court must determine whether, viewing the evidence, direct and circumstantial, in the light most favorable to the prosecution, any rational trier of fact could have found the defendant guilty beyond a reasonable doubt.
First degree murder is defined as "the intentional killing of a human being when the offender has the specific intent to kill or inflict great bodily harm on more than one person." LSA-R.S. 14:30A(3). Specific intent is a state of mind and as such need not be proven as a fact, but may be inferred from the circumstances and actions of the accused. State v. Graham, 420 So.2d (La. 1982).
The jury was presented with testimony from Dr. Susan Garcia, the forensic pathologist who autopsied the victim. Garcia testified that four of the victim's seven stab wounds punctured vital organs, including the "right ventricle of the heart," the left kidney, and both lungs. ( See State rec. vol. 4 of 7, pp. 58-59 of trial transcript). Such severe wounds support a finding of specific intent to kill or inflict great bodily harm. The testimony of Mingo Graham, Grant Gunderson, and William Brasheaus provides further support for the conviction.
The petitioner presents two objections to the Magistrate's Report and Recommendations. Petitioner first objects to the weight accorded the testimony of Graham, Gunderson, and Brasheaus. Johnson asserts that testimony of Graham and Gunderson is suspect because they cut deals with the prosecution, whereby the first degree murder charges against them were dropped in exchange for their testimony. Johnson additionally challenges the credibility of Graham's testimony, based on his criminal record. Petitioner objects to the consideration of Brasheaus' testimony, based on his earlier arrest and incarceration for refusal to testify in the trial. The jury received testimony setting forth all of this information regarding Graham, Gunderson, and Brasheaus and made a credibility finding as to the validity of their testimony. "A federal court may not substitute its own judgment regarding the credibility of witnesses for that of the state courts. All credibility choices must be resolved in favor of the jury's verdict." Cordova v. Johnson, 999 F.Supp. 473, 517 (W.D. Tex. 1998) (citations omitted). See also, United States v. Polk, 56 F.3d 613, 620 (5th Cir. 1995); United States v. Bermea, 30 F.3d 1539, 1552 (5th Cir. 1994), cert. denied sub nom. Garza v. United States, 514 U.S. 1097, 115 S.Ct. 1825, 131 L.Ed.2d 746 (1995). Accordingly, this objection is without merit.
Petitioner also claims that the factual conclusions of the jury were unreasonable because they were not based on testimony that anyone "saw petitioner cut or stab the victim." This objection must also fail, because "[e]ither direct or circumstantial evidence can contribute to the sufficiency of the evidence underlying the conviction." Schrader v. Whitley, 904 F.2d 282, 287 (5th Cir. 1990) ( citing Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 278, 2789, 61 L.Ed.2d 560 (1979).
F. Witholding of Exculpatory Evidence
Petitioner alleges that the prosecutors have deliberately withheld exculpatory material. Johnson claims that Ricky Rollinson, who is described as a "Crimestoppers" informant in a police report, gave an actual written statement documenting that Mingo Graham and Ron Graves were the individuals who stabbed the two victims. As stated in Sellers v. Estelle, 651 F.2d 1074, 1076 (5th Cir. 1981),
In Brady v. Maryland, supra, the Supreme Court held "that the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution, 373 U.S. at 87, 83 S.Ct. at 1196. In establishing a Brady violation, a defendant must prove: "(1) the prosecution's suppression of evidence, (2) the favorable character of the suppressed evidence for the defense; (3) the materiality of the suppressed evidence." United States v. Sink, 586 F.2d 1041, 1051 (5th Cir. 1978), cert. den., 443 U.S. 912, 99 S.Ct. 3102, 61 L.Ed.2d 876 (1979).
Johnson has not met this test. Petitioner makes no showing that a statement by Ricky Rollinson was actually taken, but bases this contention on documentation of information provided by Rollinson in a police report. Johnson avers that a written statement must have been taken due to "the magnitude of Rollinson's information."
According to the District Attorney, the pertinent file is now missing. A further search for the file was attempted, to no avail, pursuant to this Court's order. However, no hard evidence supports petitioner's allegation that such statement is in the District Attorney's file. Detective McCord, who documented the communications with Rollinson in the police report, testified that no written statement was taken from Rollinson by the police. Further, as noted by Magistrate Chasez, the police report was subject to a public record's request by Johnson or his counsel at all relevant times. Also, the defense counsel's questioning of McCord reflects that he was aware of the tip McCord received from Rollinson.
Johnson objects to the magistrate's conclusion, and asserts that a federal evidentiary hearing should be conducted where he can call Rollinson to the stand and ask whether a statement was given. This Court's review is directed by the AEDPA. Title 28 U.S.C. § 2254(e)(2) provides:
(2) If the applicant has failed to develop the factual basis of a claim in State court proceedings, the court shall not hold an evidentiary hearing on the claim 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 constitutional error, no reasonable factfinder would have found the applicant guilty of the underlying offense.
Petitioner has made no such showings. Accordingly, petitioner's claim must be dismissed.
G. Denial of Petitioner's Right to Testify on his Own Behalf
Petitioner alleges that he was denied the right to testify on his own behalf by his defense counsel. Johnson asserts he expressed interest in testifying "numerous" times during the trial but was told "you can't" by his defense counsel on each occasion. It is well-established that a criminal defendant has a constitutional right to testify on his own behalf. Rock v. Arkansas, 483 U.S. 44, 49-53, 107 S.Ct. 2704, 2707-2710, 97 L.Ed.2d 37 (1987). This right can only be waived by the defendant, knowingly and voluntarily. Emery v. Johnson, 139 F.3d 191, 198-199 (5th Cir. 1997). See United States v. Bloom, 65 F.3d 1436, 1444 (8th Cir. 1995), cert. denied, 516 U.S. 1097, 116 S.Ct. 824, 133 L.Ed.2d 767 (1996). Johnson essentially argues that he did not knowingly and voluntarily waive this right, but was mislead by defense counsel into believing he could not testify. In cases such as this, "where the defendant contends that his counsel interfered with his right to testify, the 'appropriate vehicle [for purposes of seeking habeas relief] is a claim of ineffective assistance of counsel.'" United States v. Mullins, 315 F.3d 449, 452 (5th Cir. 2002) quoting Sayre v. Anderson, 238 F.3d 631, 634 (5th Cir. 2001).
The Sayre court borrowed language from United States v. Brown, 217 F.3d 247, 258-259 (5th Cir. 2000), vacated and remanded on other grounds sub nom.
Ineffective assistance of counsel claims are analyzed under the standard established by the United States Supreme Court in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed 2d 674 (1984). Strickland requires the defendant to show both that: (1) the trial counsel's performance was deficient and (2) the deficient performance prejudiced the defense. Id. See also United States v. Mullins, 315 F.3d 449, 452 (5th Cir. 2002), Sayre v. Anderson, 238 F.3d 631, 634 (5th Cir. 2001).
To satisfy the first prong of Strickland, a petitioner must prove that counsel's conduct fell below an objective standard of reasonableness. Judicial review is highly deferential. There is a strong presumption that the counsel's conduct fell within the range of reasonable professional assistance. See 466 U.S. at 669, 104 S.Ct. 2052, 2055. After conducting a de novo review, this Court finds that petitioner failed to overcome this presumption as the record does not support his claim. Further, the record indicates that Johnson exercised his right to testify during the evidentiary hearing and penalty phase of his trial.
Because petitioner has not established that counsel's representation was defective, this Court need not reach the second prong of Strickland analysis. Id. at 697, 104 S.Ct. at 2069. However, this Court agrees with the magistrate's analysis of this issue. To prove prejudice, a petitioner "must show that there is a reasonable probability that but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694, 104 S.Ct. at 2068. The Strickland court defined a reasonable probability as a "probability sufficient to undermine confidence in the outcome." Id. The magistrate correctly concluded that "[d]ue to petitioner's failure to specify in a particularized and factual manner what his testimony would have been had he been put on the stand, he has failed to satisfy his burden of proof." See Report and Recommendation, (Rec. Doc. No. 18 at 40) ( citing Santiago v. United States, 219 F.Supp.2d 186, 193 (D. Puerto Rico Rico 2002) (petitioner's statement that "his testimony would have contradicted the testimony of the cooperating witnesses and confidential informant" deemed insufficient for purpose of showing prejudice); Bowen v. Blaine, 2002 WL 32345743, *10 (E.D. Pa. 2002) (magistrate judge's report and recommendation adopted by Bowen v. Blaine, 243 F.Supp.2d 296 (E.D. Pa. 2003)) (petitioner's affidavit that his testimony would have contradicted the Commonwealth's witness who identified petitioner as the killer, deemed insufficient for purpose of showing prejudice since it was "unclear how such blanket denial would result in an acquittal"). Accordingly, petitioner is not entitled to relief.
H. Prosecution's Knowing Use of False Evidence
Johnson asserts that the black handled knife presented at trial was not the same knife recovered from the crime scene, but was a substitute purchased by the State. Johnson further claims that the introduction of this knife into evidence precluded a fair trial. Petitioner bases this contention on the fact that Officers Tim Seauzenca and Teddy Frambo described the knife as a "Benchmark brand" during testimony, while the crime lab report describes an "Edgemark" brand knife. The record does support petitioner's observation of a discrepancy in the description of the knife by the State. However, nothing in the record suggests that the knife recovered from the crime scene was not the knife presented at trial. First, the State established a chain of custody for the knife. Second, both Seauzenca and Frambo identified the knife during testimony as the same one they came into contact with through their investigation. Third, defense counsel had the opportunity to question the State's witnesses about the knife. Petitioner's objection is without merit.
See State rec., vol. 5 of 7, p. 31, lines 18-19 and p. 99, line 8.
A Crime Lab Report dated November 15, 1993 documents receipt of an "Edgemark" pocket folding knife with black rubber handle. See Petitioner's Traverse in Response to State Supplemental Brief, Exh. 3.
I. Ineffective Assistance of Counsel
Petitioner predicates several arguments on a theory that his counsel's representation was deficient and prejudicial to the defense. As set forth above, to prevail, petitioner must show: (1) the trial counsel's performance was deficient and (2) the deficient performance prejudiced the defense. Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed 2d 674 (1984).
1. Counsel failed to Challenge Element of Crime Charged
Here, Johnson asserts that counsel was ineffective in making objections and communications to the jury regarding the intent element of his offense. His arguments, however, have no legal foundation. Petitioner maintains that a jury determination that he actually stabbed more than one person is required to find the intent to commit first degree murder. Based on this supposition, Johnson argues: (1) Because the surviving victim only had one stab wound, only one person could be guilty of first degree murder, (2) Co-defendant Graves had already been indicted for first degree murder, (3) Therefore, defense counsel should have laid the groundwork for a challenge on the issue of intent.
However, to convict under La.R.S. 14:30(A)(3), a jury need not find that the defendant actually killed or inflicted harm upon more than one person — only that the defendant had the intent to do so. See State v. Davis, 727 So.2d 453, 462 (La.App. 4th Cir. 1998). Therefore, petitioner's claim is without merit.
La.R.S. 14:30(A)(3) defines first degree murder as "the killing of a human being . . . when the offender has a specific intent to kill or to inflict great bodily harm upon more than one person."
"Specific intent is 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." State v. Davis, 727 So.2d 453, 462 (La.App. 4th Cir. 1998) (construing La.R.S. 14:10(1)).
2. Counsel Failed to Object to Trial Court's Jury Charge on Principals
Johnson maintains that defense counsel's failure to object to the trial court's jury instruction regarding principals constitutes ineffective assistance. Petitioner asserts that because his grand jury indictment did not contain the term "principal," he was not fully informed of the nature of the charges against him and was thus unprepared to present a defense to being a principal. As noted above, Louisiana law provides that an individual indicted for first degree murder is implicitly charged as a principal." State v. Peterson, 290 So.2d 307, 308 (La. 1974). Being a principal is not a separate crime and the elements of first degree murder are unchanged by a jury instruction including the definition of a "principal." Id. Additionally, a defendant is precluded from asserting error after trial if they have failed to utilize discovery devices provided for in the Code of Criminal Procedure to learn the details of the offense charged. See id at 309-310. Accordingly, petitioner's claim is without merit.
La. Code Crim.P. art 484 provides a defendant the opportunity to request more specific information regarding the nature and cause of a charge by filing a bill of particulars. .
3. Counsel Filed No Bill of Particulars or Discovery, No Pre-Trial Motions, Conducted No Investigation, Called No Witnesses, and Presented No Defense
Petitioner claims that he was denied effective representation due to the following failures of defense counsel: (1) filing no bill of particulars, (2) filing no motion for discovery, (3) filing no pre-trial motions, (4) conducting no investigation, (5) calling no witnesses, and (6) presenting no defense. As noted above, there is a strong presumption that counsel's conduct fell within the range of reasonable professional assistance under the highly deferential review of Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052 (1984). The record does not support any of Johnson's allegations. Moreover, the record reflects that counsel did file at least one pre-trial motion and participated in a hearing on October 20, 1995. Hence, petitioner's claim fails under Strickland.
See State rec., vol. 3 of 7.
Johnson posits that unconstitutional ineffectiveness may be inferred, relieving him of the burden of proof imposed by Strickland, by his counsel's failure to do more than "show up for trial totally unprepared with the intention of allowing the State to do as they pleased." Petitioner argues that the circumstances of his trial warrant application of the exception to the Strickland standard articulated by the Supreme Court in United States v. Cronic, 466 U.S. 648, 104 S.Ct. 2039, 80 L.Ed.2d 657 (1984). However, the Cronic exception, created to protect the Sixth Amendment right of criminal defendants to meaningful adversarial trials, applies "in only a very narrow spectrum of cases where the circumstances leading to counsel's ineffectiveness are so egregious that the defendant was in effect denied any meaningful representation at all." Cracker v. McCotter, 805 F.2d 538, 542 (5th Cir. 1986). A petitioner must prove more than just shoddy representation. See Childress v. Johnson, 103 F.3d 1221, 1228 (5th Cir. 1997). "When the defendant complains of errors, omissions, or strategic blunders, prejudice is not presumed." Jackson v. Johnson, 150 F.3d 520, 525 (5th Cir. 1998). Additionally, as noted by the Fifth Circuit, "a case does not come under Cronic merely because counsel failed to 'oppose the prosecution at specific points' in the trial." Johnson v. Cockrell, 301 F.3d 234, 238 (5th Cir. 2002), cert. denied, 538 U.S. 1001, 123 S.Ct. 1901, 155 L.Ed.2d 830 (2003). After reviewing the record de novo, it is evident that Johnson did not suffer the total lack of representation required to invoke the Cronic exception. Petitioner requests an evidentiary hearing in order to develop evidence to support his claim. However, this request is precluded by the AEDPA. See Title 28 U.S.C. § 2254(e)(2). Accordingly, petitioner's objection fails.
Memorandum of Law and Argument in Support of Application for Writ of Habeas Corpus, (Rec. Doc. No. 1).
J. Cumulative Effect of Alleged Errors
Finally, Johnson claims that his alleged errors, while deemed harmless or meritless individually, rise to the level of a constitutional violation when viewed cumulatively. Petitioner cites Taylor v. Kentucky, 436 U.S. 478, 98 S.Ct. 1930, 56 L.Ed.2d 468 (1978) and Derden v. McNeel, 978 F.2d 1453, 1461 (5th Cir. 1992) (en banc), cert. denied, 508 U.S. 960, 113 S.Ct. 2928, 124 L.Ed.2d 679 (5th Cir. 1993) to support this contention. In Taylor, the United States Supreme Court deemed the cumulative effect of a series of interrelated, potentially damaging circumstances sufficient to claim a violation of due process. In Derden, the United States Court of Appeals for the Fifth Circuit rejected a habeas application based on cumulative error. See 978 F.2d at 1461. The court cautioned against an expansive application of cumulative error review. Later Fifth Circuit jurisprudence has similarly noted that a grant of habeas relief predicated on cumulative error is a rarity. See United States v. Bell, 367 F.3d 452, 471 (5th Cir. 2004); United States v. Villarreal, 324 F.3d 319, 328 (5th Cir. 2003). "The cumulative error doctrine provides relief only when constitutional errors so 'fatally infect the trial' that they violated the trial's 'fundamental fairness.'" United States v. Bell, 367 F.3d 452, 471 (5th Cir. 2004) ( citing Derden, 978 F.2d at 1457). In the present case, Johnson has failed to prove the occurrence of such trial error. Accordingly, petitioner's final objection is without merit.
Accordingly,
IT IS ORDERED that petitioner's application for habeas corpus relief pursuant to Title 28, United States Code, Section 2254, is hereby DISMISSED WITH PREJUDICE.