Opinion
Civil Action No. 03-2626 Section "R" (6).
December 6, 2004
ORDER AND REASONS
Petitioner Elmo Lee moves the Court for a certificate of appealability. For the following reasons, the Court denies the motion.
I. PROCEDURAL BACKGROUND
Petitioner Elmo Lee was convicted of aggravated battery in Louisiana state court. He is serving a life sentence because he was adjudicated and sentenced as a fourth felony offender. After direct appeal, Lee applied for post-conviction relief in the state court in April 2002. The state district court denied relief because it found that all of Lee's assignments of error related to his adjudication/sentence as a multiple offender, and, under Louisiana law, there is no basis for post-conviction review of claims of excessiveness or other sentencing error. LA. CODE CRIM. PROC. ANN. art. 930.3; State v. Melinie, 665 So.2d 1172 (La. 1996). The Louisiana Court of Appeal and Louisiana Supreme Court denied Lee's filings for supervisory writs, finding no error in the district court's decision.
Article 930.3 sets forth the grounds for relief that may be raised in state post-conviction proceedings: (1) the conviction was obtained in violation of the constitution of either the United States or the state of Louisiana; (2) the court exceeded its jurisdiction; (3) the conviction or sentence subjected a defendant to double jeopardy; (4) the limitations on the institution of prosecution expired; (5) the statute creating the offense for which a defendant stands convicted and sentenced is unconstitutional; (6) the conviction or sentence constitute the ex post facto application of law in violation of the constitution of the United States or Louisiana; or (7) the results of DNA testing performed pursuant to an application granted under Article 926.1 proves by clear and convincing evidence that the petitioner is factually innocent of the crime for which he was convicted. LA. CODE CRIM. PROC. ANN. art. 930.3.
Lee then timely filed his application for federal habeas corpus relief, alleging that the state court erred when it found that his application for post-conviction relief was procedurally barred, that the trial court erred in adjudicating Lee as a fourth felony offender, and that he was denied effective assistance of counsel during the direct appeal of his adjudication/sentence as a multiple offender. These claims were raised, rejected, and exhausted in the state courts when the Louisiana Supreme Court affirmed the trial court's decision that Lee's claims related to his adjudication and sentencing as a multiple offender, and thus were procedurally barred by Article 930.3.
By Order and Reasons dated October 8, 2004, this Court adopted the magistrate judge's report and recommendation and dismissed Lee's federal habeas claims. The Court found that the claims were procedurally defaulted by the state court's application of an independent and adequate state procedural bar to raising claims of excessive sentence in a post-conviction application. The Court also found that Lee had not shown cause to excuse the procedural default, nor had he shown that his ineffective assistance of counsel claim was a constitutional error that could constitute a fundamental miscarriage of justice and excuse the procedural default.
II. DISCUSSION
Lee now moves for a certificate of appealability on six issues: (1) whether Massaro v. United States, 538 U.S. 500 (2003), which held that a defendant who challenges a conviction under 28 U.S.C. § 2255 may raise an ineffective assistance of counsel claim in a collateral proceeding even if he failed to raise it on direct appeal, applies to Lee's case; (2) whether the Court properly determined that Lee's ineffective assistance of counsel claim does not constitute cause to excuse the procedural default; (3) whether the government used false evidence in a motion to suppress hearing, in violation of Lee's constitutional rights; (4) whether the Court properly rejected Lee's claim that his counsel's performance was deficient for failing to investigate a "rebooking" charge that Lee claims was improperly used to enhance his sentence; (5) whether the magistrate judge erred in reviewing the issues raised in Lee's initial habeas petition; and (6) whether the Court erred in determining that LA. CODE CRIM. P. art. 930.3 procedurally bars Lee's claims.
Lee also appears to claim that article 930.3 was misapplied in his case because it is "jurisdictional only in regards to sentencing issues" and "also contains provisions for bringing a collateral attack regarding constitutional violations which occur during sentencing phases." The Court has no power to address these claims, because "it is not the province of a federal habeas court to reexamine state-court determinations on state-law questions." Trevino v. Johnson, 168 F.3d 173, 184 (5th Cir. 1999).
The Court may not issue a certificate of appealability because Lee has not made "a substantial showing of the denial of a constitutional right." 28 U.S.C. § 2253(c). In Miller-El v. Cockrell, the Supreme Court held that the "controlling standard" for a certificate of appealability requires the petitioner to show "that reasonable jurists could debate whether (or, for that matter, agree that) the petition should have been resolved in a different manner or that the issues presented [are] `adequate to deserve encouragement to proceed further.'" 537 U.S. 322, 336 (2003).
Lee makes no substantial showing that he was denied a constitutional right. The Court considered and rejected Lee's first claim because Massaro plainly does not apply to this case. First, Lee was not convicted under federal law, as Massaro was. 538 U.S. at 502. More importantly, Lee's claim was not procedurally defaulted for the same reason as was the petitioner's claim in Massaro. In Massaro, the Court held that a petitioner's failure to raise an ineffective assistance of counsel claim on direct appeal does not procedurally default that claim. Id. at 504. Here, however, Lee's ineffective assistance of counsel claim was procedurally defaulted not because he failed to raise it on appeal, but because the state courts applied an independent and adequate state procedural bar, which was not based on a failure to raise the claim on direct appeal. Indeed, Lee did raise his ineffective assistance of counsel claim on direct appeal, so there is no procedural default to excuse under the rule announced in Massaro. Massaro, therefore, is inapplicable to this case.
Lee's second, fourth, fifth and sixth arguments were considered and rejected by both the magistrate judge and this Court, and the Court finds that Lee has not made a substantial showing that he was denied a constitutional right by those rulings. Lee's third claim appears to be one he raises for the first time in his request for a certificate of appealability. A review of Lee's habeas petition demonstrates that he did not raise the issue of whether the government used false evidence in a motion to suppress hearing in his petition. The Court will not grant Lee permission to pursue on appeal arguments that he presents for the first time in an application for a certificate of appealability. See Lowe v. Frank, No. 03-C-0266-C, 2004 WL 635704, at *3 (W.D. Wis. Mar. 9, 2004); Mitchell v. Ward, No. Civ-97-283-T, 1999 WL 33316065, at *1 n. 3 (W.D. Okla. Oct. 12, 1999); United States v. Tiedemann, 993 F. Supp. 310, 320 (E.D. Pa. 1998). Lee has failed to make a substantial showing that he was denied a constitutional right on the remainder of his claims for the reasons set forth in the Court's Order and Reasons of October 8, 2004.
Nor does the Court find that Lee should be encouraged to proceed with these claims. The Court based its holdings that Lee is procedurally barred from raising his claims on well-established federal law. Federal law is clear that a federal court will not review claims barred by Louisiana's independent and adequate state statutory procedural bar to review of post-conviction challenges to multiple offender adjudications, absent an excuse for procedural default. See Chester v. Cain, No. 01-1958, 2001 WL 1231660, at *6 (E.D. La. Oct. 15, 2001). Lee has failed to demonstrate cause and prejudice for the default, or that the dismissal of the claim would result in a fundamental miscarriage of justice. See Amos v. Scott, 61 F.3d 333, 339 (5th Cir. 1995). The procedural default doctrine is well-settled federal law, and the Court does not find that reasonable jurists could debate whether Lee failed to show cause for the default or that a fundamental miscarriage of justice will result from the default.
III. CONCLUSION
For the foregoing reasons, the Court denies Lee's application for a certificate of appealability.