Opinion
Civil Action No. 01-3891
May 31, 2002
ORDER AND REASONS
Petitioner, Paul A. Petta, filed this application for federal habeas corpus relief pursuant to 28 U.S.C. § 2254. Upon review of the record and the law, the Court has determined that the record is sufficient, that no evidentiary hearing is required, and that petitioner is not entitled to relief for the following reasons.
Pursuant to 28 U.S.C. § 2254(e)(2), whether to hold an evidentiary hearing is now a statutorily mandated determination. According to Section 2254(e)(2), 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. § 2254(e)(2)(A)(i)) or the claim relies on a factual basis that could not have been previously discovered through the exercise of due diligence ( 28 U.S.C. § 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. § 2254(e)(2)(B)).
Petitioner is a state court prisoner incarcerated at the Louisiana State Penitentiary, Angola, Louisiana. On May 23, 1997, petitioner, who represented himself at trial, was convicted of two counts of distribution of heroin in violation of La.Rev.Stat.Ann. § 40:966(A) (West 1996). On July 7, 1997, petitioner was sentenced to two concurrent terms of life imprisonment, without the benefit of probation or suspension of sentence, with credit for time served. On direct appeal, petitioner's conviction and sentence were affirmed by the Louisiana Fifth Circuit Court of Appeal on February 10, 1999. Petitioner filed an application for a writ of certiorari and/or review which was denied by the Louisiana Supreme Court on September 3, 1999. Petitioner then filed with the United States Supreme Court an application for a writ of certiorari which was denied on January 18, 2000.
On March 5, 1997, petitioner filed with the state district court a "Motion to Proceed Pro-Se." State Rec., Vol. I of VI. After finding petitioner capable of representing himself, the state district court granted the motion on March 6, 1997, but appointed attorney June Darensburg to assist petitioner with his defense. State Rec., Vol. I of VI, March 6, 1997, minute entry.
State Rec., Vol. I of VI, May 23, 1997, minute entry; State Rec., Vol. I of VI, jury verdict forms; State Rec., Vol. VI of VI, May 23, 1997, transcript, pp. 223-24.
State Rec., Vol. I of VI, July 7, 1997, minute entry; State Rec., Vol. VI of VI, July 7, 1997, transcript, pp. 34-36.
Unlike at trial, petitioner was represented by counsel on appeal. Although noting that he wanted "to work with the lawyer," petitioner asked that an attorney be appointed to represent him on appeal. State Rec., Vol. VI of VI, July 7, 1997, transcript, p. 28. The state district court appointed the Louisiana Appellate Project to represent petitioner on direct appeal. State Rec., Vol. III of VI, July 7, 1997, order. On August 6, 1998, attorney Bertha M. Hillman of the Louisiana Appellate Project filed an appellate brief on behalf of petitioner which asserted two assignments of error, i.e. that the trial court erred in denying petitioner's motion to reveal the identity of the confidential informants and that a preponderance of evidence showed that petitioner was entrapped. State Rec., Vol. VI of VI. Petitioner contends that he filed with the Louisiana Fifth Circuit Court of Appeal a "Pro Se Supplement Appeal Brief' in which he asserted four additional assignments of error. Rec. Doc. 2, supporting memorandum, p. 14, and Exhibits C and J. However, state record filed with this Court contains no copies of these documents bearing a filing stamp of the Louisiana Fifth Circuit Court of Appeal. Moreover, in a telephone conversation on May 23, 2002, this Court was informed by an employee of the Clerk of Court of the Louisiana Fifth Circuit Court of Appeal that there is no record that petitioner's pro se brief was filed with that court. That court provided a computer printout of all case events, including all filings, in petitioner's direct appeal which reflects no pro se filings. Rec. Doc. 9. Therefore, even if this Court were to accept petitioner's contention that he mailed the pro se brief to the Louisiana Fifth Circuit Court of Appeal, there is no evidence that it was ever received by that court.
State v. Petta, 729 So.2d 29 (La.App. 5th Cir. 1999); State Rec., Vol. II of VI. In addition the matter was remanded to the state district court so that petitioner could be advised of the prescriptive period allowed by Louisiana law for those persons seeking post-conviction relief
The state record filed with this Court does not contain a copy of that application or of the other appellate applications noted herein as being omitted. See notes 9, 13, and 15, infra. Because the state concedes that petitioner has exhausted his claims in state court, review of the applications is unnecessary.
State v. Petta, 747 So.2d 533 (La. 1999); State Rec., Vol. II of VI.
A copy of that application is not included in the state record filed with this Court.
Petta v. Louisiana, 528 U.S. 1125, 120 S.Ct. 956, 145 L.Ed.2d 830 (2000).
On October 11, 2000, petitioner filed with the state district court an application for post-conviction relief which was denied on October 19, 2000. Petitioner filed with the Louisiana Fifth Circuit Court of Appeal an application for a supervisory writ which was denied on December 28, 2000. Petitioner then filed an application for supervisory and/or remedial writs which was denied by the Louisiana Supreme Court on November 2, 2001.
State Rec., Vol. I of VI.
State Rec., Vol. I of VI, October 19, 2000, order.
A copy of that application is not included in the state record filed with this Court.
Petta v. Cain, No. 00-KH-1947 (La.App. 5th Cir. Doc. 22, 2000) (unpublished); State Rec., Vol. I of VI.
A copy of that application is not included in the state record filed with this Court.
State ex rel. Petta v. State, 800 So.2d 871 (La. 2001); State Rec., Vol. II of VI.
On December 20, 2001, petitioner filed his application for federal habeas corpus relief. In support of his application, petitioner claims:
Rec. Doc. 2.
1. The trial court violated petitioner's rights because the prosecution was not required to reveal a confidential informant's identity;
2. The trial court violated petitioner's rights when it limited his closing argument to twenty minutes;
3. Petitioner received ineffective assistance of counsel on appeal;
4. Petitioner was denied the right to have his pro se claims heard on appeal; and
5. There was insufficient evidence to support petitioner's conviction because the evidence at trial demonstrated that petitioner was entrapped by the state.
In his federal application, petitioner presents two claims regarding the trial court's refusal to require the identification of the confidential informant. Because these two claims are intertwined and repetitive, this Court will consider them together.
The state concedes that petitioner's federal application was timely filed and that petitioner exhausted his claims in state court. Accordingly, the Court will address the merits of petitioner's claims.
Rec. Doc. 6, pp. 3-4.
Standard of Review
The Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA") comprehensively overhauled federal habeas corpus legislation, including 28 U.S.C. § 2254. 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. Provided that the state court adjudicated the claim on the merits, pure questions of law and mixed question of law and fact are reviewed under § 2254(d)(1) and questions of fact are reviewed under § 2254(d)(2). Hill v. Johnson, 210 F.3d 481, 485 (5th Cir. 2000). cert. denied, 532 U.S. 1039, 121 S.Ct. 2001, 149 L.Ed.2d 1004 (2001).
With respect to questions of law and mixed questions of law and fact, a federal court must defer to the state court unless its decision "was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States." 28 U.S.C. § 2254(d)(1). 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." Williams v. Taylor, 529 U.S. 362, 413, 120 S.Ct, 1495, 1523, 146 L.Ed.2d 389 (2000). Under § 2254(d)(1)'s "unreasonable application" language, a writ may issue "if the state court identifies the correct governing legal principle from [the Supreme] Court's decisions but unreasonably applies that principle to the facts of the prisoner's case." Id. Factual findings are presumed to be correct and a federal court will give deference to the state court's decision unless it "was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding." 28 U.S.C. § 2254(d)(2); Hill, 210 F.3d at 485.
Facts
The facts of this case were succinctly summarized by the Louisiana Fifth Circuit Court of Appeal:
Agent Wayne Couvillion, an undercover narcotic's officer for the Jefferson Parish Sheriff's Office, was introduced to the defendant, Paul Petta, by a confidential informant named Keith, on May 14, 1996. At that meeting, Agent Civilian [sic] requested to purchase heroin from Mr. Petta. Agent Couvillion gave Mr. Petta $175 and instructed Mr. Petta to page him after he obtained the drugs. A few hours later, Agent Couvillion received a page, returned to Mr. Petta's apartment and was given eight foil packets which tested positive for heroin.
On May 16, 1996, Agent Couvillion called Mr. Petta and asked to purchase another $175 worth of heroin. Mr. Petta agreed and Agent Couvillion went to Mr. Petta's apartment to give him the money. A few hours later, after being paged, Agent Couvillion returned to Mr. Petta's apartment and obtained the drugs.
The next contact between Agent Couvillion and Mr. Petta was the result of Agent Couvillion being paged from Mr. Petta's apartment. Agent Couvillion returned the page and another purchase was set up on May 21, 1996. This purchase was completed in the same manner as the two previous purchases.
Agent Couvillion was again paged by someone at Mr. Petta's apartment on May 27, 1996. This page was returned on May 28, 1996 and a purchase for $350 worth of heroin was arranged between Agent Couvillion and Mr. Petta. Agent Couvillion met Mr. Petta's girlfriend, Catherine Bonicard, in the parking lot of Mr. Petta's apartment, and gave her the money. A few hours later, Agent Couvillion was paged to return to the apartment for the heroin. When Agent Couvillion returned, he was accompanied by other narcotics officers, who searched Mr. Petta's apartment, and arrested Mr. Petta and Ms. Bonicard. Mr. Petta was charged with two counts of distribution of heroin, stemming from the transactions of May 16 and 21, 1996.
In his opening statement, the defendant told the jury that he did sell heroin to the undercover officer, but he was entrapped into doing so by the confidential informant and the officer. The defendant took the stand and testified that he had been a heroin addict for numerous years but never sold heroin. On May 8, 1996, he decided to stop using heroin. He began experiencing withdrawal symptoms, which made him sick. He claimed the informant and Agent Couvillion knew he was a drug addict and approached him at a time when he was weak because he was trying to kick his heroin habit on his own. The defendant testified that he had known the informant, Keith, for approximately four months prior to May 14, 1996. He did not know Keith's last name or address. He explained that Agent Couvillion and Keith came to his apartment unannounced on May 14, 1996, at which time Keith requested he obtain heroin for him. He claimed that Keith gave him two packets of heroin in the bathroom and told him that if he would obtain more heroin, he would give the defendant two more packets of heroin. After purchasing ten packets of heroin, he and Keith shared two packets of heroin.
The defendant urged his entrapment defense throughout the trial, but this defense was rejected by the jury, which unanimously found the defendant guilty.State v. Petta, 729 So.2d 29, 30-31 (La.App. 5th Cir.) (footnote omitted), writ denied, 747 So.2d 533 (La. 1999).
State Rec., Vol. II of VI.
Identity of the Confidential Informat
Petitioner claims that his rights were violated when the state district court refused a request that the prosecution reveal the identity of the confidential informant known as "Keith." Petitioner also argues that his Sixth Amendment Confrontation Clause rights were violated when the confidential informant's identity was withheld. The United States Fifth Circuit Court of Appeals has noted:
Regarding the identity of [an] informant, both the Supreme Court and this circuit have held that the government's privilege of nondisclosure overrides any sixth amendment right to the identity of an informant for purposes of confrontation. In McCray v. Illinois, 386 U.S. 300, 87 S.Ct. 1056, 18 L.Ed.2d (1967), the Court was asked to hold that the Due Process Clause of the fourteenth amendment and the sixth amendment right of confrontation "compels Illinois to abolish the informer's privilege . . ., and to require disclosure of the informer's identity in every such preliminary hearing where it appears that the officers made the arrest or search in reliance upon facts supplied by an informer they had reason to trust." Id. at 312, 87 S.Ct. at 1063, 18 L.Ed.2d 62. In response, the Court stated: "we find no support for the petitioner's position in either of those constitutional provisions." Id. at 313, 87 S.Ct. at 1063. In considering the sixth amendment issue, the Court reasoned:
The petitioner does not explain precisely how he thinks his Sixth Amendment right to confrontation and cross-examination was violated by Illinois' recognition of the informer's privilege in this case. If the claim is that the State violated the Sixth Amendment by not producing the informer to testify against the petitioner, then we need no more than repeat the Court's answer to that claim a few weeks ago in Cooper v. California [ 386 U.S. 58, 87 S.Ct. 788, 17 L.Ed.2d 730 (1967)]: "Petitioner also presents the contention here that he was unconstitutionally deprived of the right to confront a witness against him, because the State did not produce the informant to testify against him. This contention we consider absolutely devoid of merit." 386 U.S. p. 58, at 62, note 2, 17 L.Ed.2d 730, 734, 87 S.Ct. 788 [791 note 2.] On the other hand, the claim may be that the petitioner was deprived of his Sixth Amendment right to cross-examine the arresting officers themselves, because their refusal to reveal the informer's identity was upheld. But it would follow from this argument that no witness on cross-examination could ever constitutionally assert a testimonial privilege, including the privilege against compulsory self-incrimination guaranteed by the Constitution itself. We have never given the Sixth Amendment such a construction, and we decline to do so now.Id. at 3 13-14, 87 S.Ct. at 1064.
United States v. De Los Santos, 810 F.2d 1326, 1334-35 (5th Cir. 1987).
The Court notes that a Confrontation Clause claim may be urged when a witness has testified regarding the substance of a statement made by a confidential informant. See Gochicoa v. Johnson, 118 F.3d 440, 445-47 (5th Cir. 1997). Although petitioner asserts that the substance of Keith's statements were related to the jury through other witnesses, he provides no citations to such testimony. Furthermore, the Court has reviewed the testimony at issue and has found no such hearsay statements or objections by petitioner on that ground.
The United States Fifth Circuit Court of Appeals has explained that nondisclosure of a confidential informant's identity may in some circumstances violate a criminal defendant's right to due process:
Roviaro v. United States is the seminal Supreme Court case which analyzes the informant's privilege. 353 U.S. 53, 77 S.Ct. 623, 1 L.Ed.2d 639 (1957). The Court noted there that the purpose of the informant's privilege was to further and to protect the public's interest in effective law enforcement. Id. at 59, 77 S.Ct. at 627. This privilege, which in actuality is the Government's privilege, recognizes that citizens have an obligation to inform law enforcement organizations of their knowledge about criminal activity. The privilege also encourages such communications by preserving the informant's anonymity. Id. Federal courts have long recognized that informants are a vital part of society's defense arsenal. However, the informant's privilege is not without limitation. It must be balanced with and must not override defendants' rights to due process in criminal cases. As such, the privilege is limited by three prudential considerations. First, if revealing the informant's communication will not reveal the informant's identity, that communication is not privileged. Likewise, if the informant's identity has already been revealed to one who has a reason to resent the informant's communication, the identity may be disclosed. The final consideration rises to constitutional magnitude: If the privilege interferes with a defendant's due process right to prepare his defense or if disclosure of the informant or his communication is essential to a fair determination of the defendant's guilt or innocence, the privilege must give way. The key to this consideration turns upon whether the disclosure of the informant's identity or his communication is relevant and helpful to the defendant. This Court has developed a three-part test to determine whether disclosure of the informant's identity or communication is required. The Court examines 1) the informant's degree of involvement in the crime, 2) the helpfulness of the disclosure to the defense, and 3) the Government's interest in nondisclosure.United States v. Sanchez, 988 F.2d 1384, 1391 (5th Cir. 1993) (quotation marks and citations omitted; emphasis in original).
The Court notes that the identity of the informant was not completely unknown to petitioner. Rather, petitioner had been acquainted with "Keith" for approximately four months. State Rec., Vol. VI of VI, May 23, 1997, transcript, p. 107. Petitioner, however, did not know the informant's last name or his whereabouts. Rec. Doc. 2, Exhibit I, April 30, 1997, transcript, p. 11. Therefore, the three-part analysis provides guidance for the consideration of petitioner's claim. See United States v. Evans, 941 F.2d 267, 272 (5th Cir. 1991) (informant's new name and address unknown to defendant).
The Louisiana Fifth Circuit Court of Appeal held that the state district court did not err in refusing to require identification of the confidential informant:
In his first assignment of error, the defendant contends the trial judge erred in denying his motion to reveal the identity of the confidential informant. Defendant admitted to distributing heroin on May 16 and May 21, but claims that while he was experiencing withdrawals in an attempt to quit using the drug, he was entrapped into selling heroin to Agent Couvillion. Mr. Petta claims that the testimony of the confidential informant was crucial to his defense of entrapment in that the informant could have provided testimony that the informant induced him to sell heroin to Agent Couvillion by promising him heroin for his own use. The defendant contends that because of the absence of the informant's testimony, the jury was forced to weigh the credibility between himself and Agent Couvillion. He claims the informant's testimony would have assisted the jury by adding additional, less biased testimony. In State v. Fefie, 96-605, (La.App. 5th Cir. 3/25/97), 692 So.2d 1236, the defendant argued that he was unable to present an entrapment defense because he did not know the name of the informant, so he could not know what was said to him to convince him to proceed with the transaction and he was unable to confront the informant and contradict the officers' version of the events. This Court refused to reverse the conviction, finding there were no exceptional circumstances because the defendant himself could have testified regarding the informant's statements and because the officer was thoroughly questioned regarding the informant. The Court noted that the informant did not play a crucial role in the transaction in that he did not participate in the exchange of money or contraband. We find that the confidential informant in the case before us did not play a crucial role in any of the four drug transactions discussed during the defendant's trial. The testimony of Agent Couvillion established that the informant merely introduced him to the defendant and that it was Agent Couvillion, rather than the informant, who negotiated the heroin deal with the defendant. Although during the May 14, 1996 purchase, the contraband was handed to the informant, rather than Agent Couvillion, the testimony established that the informant immediately handed the drugs to Agent Couvillion. Agent Couvillion testified that he handed the money directly to the defendant. Moreover, Agent Couvillion testified that there was another couple present at defendant's apartment during the May 14, 1996 purchase. Mr. Petta could have called this couple to the stand, as well as his co-defendant, Ms. Bonicard to support his claim of entrapment. The defendant and Agent Couvillion testified that the confidential informant was not present for the May 16 and 21, 1996 purchases. Additionally, Agent Couvillion testified that the defendant contacted him to set up the May 21 and 28 purchases. We find this assignment of error to be without merit especially in light of the fact that the defendant knew the confidential informant and shared drug activities with him prior to these drug transactions.Petta, 729 So.2d at 31.
State Rec., Vol. II of VI.
Although the Louisiana Fifth Circuit Court of Appeal did not specifically analyze petitioner's claim by reference to the three-prong test utilized by United States v. Sanchez, its analysis was consistent with that used in federal cases.
Relevant to the first prong, i.e. the informant's degree of involvement in the crime, the state court found that the informant's role in the transactions was minimal. The state court noted that the informant's primary role was to make the introduction and that he played little or no role in the actual drug transactions.
As to the first prong, the United States Fifth Circuit Court of Appeals has noted, "The more active the [informant's] participation, the more likely disclosure will be required. On the other hand, if the informant's participation is minimal, it favors nondisclosure." De Los Santos, 810 F.2d at 1331 (citations omitted).
Relevant to the second prong, i.e. the helpfulness of the disclosure to the defense, the state court noted that other witnesses could have been called to testify as to the circumstances of the transaction on May 14 and that the informant was not even present during the transactions on May 16 and 21. Accordingly, the state court held that the informant's potential testimony was not crucial to the defense.
As to the second prong, the United States Fifth Circuit Court of Appeals has noted, "The defendant is required to make a sufficient showing that the testimony would significantly aid the defendant in establishing an asserted defense. Mere conjecture or supposition about the possible relevancy of the informant's testimony is insufficient to warrant disclosure." De Los Santos, 810 F.2d at 1331 (quotation marks, brackets, and citations omitted).
Although the state court did not make a finding relevant to the third prong, i.e. the government's interest in nondisclosure, a court "is not required to examine the third prong when the defendant has failed to produce evidence which supports the first two prongs." Sanchez, 988 F.3d at 1392.
Petitioner also argues that Keith's identity should have been revealed because the prosecution violated "the law of the case." Petitioner contends that at the suppression hearing on March 5, 1997, the judge ruled that she would not require Keith's identity to be revealed because the prosecution indicated that it would not introduce evidence at trial regarding the incident of May 14, 1996. Although the prosecution did appear to represent at that hearing that the events of May 14 would "not come out at trial," there is no indication that the trial judge's ruling was based on the representation. Rec. Doc. 2, Exhibit D, March 5, 1997, transcript, pp. 5-7. Furthermore, the basis for the trial court's ruling was clarified at the hearing held on April 30, 1997, at which the judge stated, "[M]y ruling was that the State is not required to give you the name of the informant because he was not involved in the buy with which you're charged." Rec. Doc. 2, Exhibit I, April 30, 1997, transcript, p. 12 (emphasis added). Therefore, the trial court's ruling was not premised on the belief that the incidents of May 14 would not come out at trial, but rather on the fact that the informant was not a participant in the incidents for which petitioner was charged. To the extent that petitioner is contending that the events of May 14 should not have been introduced at trial, he expressly stated at trial that he did not object to those events being discussed. State Rec., Vol. IV of VI, May 20, 1997, transcript, p. 16. Moreover, the events of May 14 were integral to petitioner's entrapment defense.
Petitioner has failed to establish that the state court decision "was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court ofthe United States." 28 U.S.C. § 2254(d)(1). Accordingly, applying the AEDPA's deferential standard, this Court rejects petitioner's claim that his federal constitutional rights were violated by the state court's refusal to order the prosecution to reveal additional information relative to the confidential informant.
Limitation on Closing Argument
The state district court limited petitioner's closing argument to twenty minutes. Petitioner claims that the limitation prevented him from fully and completely presenting his argument to the jury and that he was, therefore, denied a fair trial.
The state's response argues that this claim has been procedurally defaulted. Rec. Doc. 6, p. 9. When petitioner presented this claim in his state post-conviction application, it is true that the state district court denied the claim on the ground that it was waived when not presented on appeal. State Rec., Vol. I of VI, October 19, 2000, order. However, the claim was among those included in the "Pro Se Supplement Appeal Brief" which petitioner alleges was filed with the Louisiana Fifth Circuit Court of Appeal. Rec. Doc. 2, Exhibit C, pp. 6-8. As previously noted, however, there is no evidence that the pro se brief was ever received by that court for filing. See note 5, supra. In view of this discrepancy, this Court will address the claim on its merits.
The United States Supreme Court has noted:
There can be no doubt that closing argument for the defense is a basic element of the adversary factfinding process in a criminal trial. Accordingly, it has been universally held that counsel for the defense has a right to make a closing summation to the jury, no matter how strong the case for the prosecution may appear to the presiding judge.Herring v. New York, 422 U.S. 853, 858, 95 S.Ct. 2550, 2553, 45 L.Ed.2d 593 (1975). The Supreme Court held that a defendant's constitutional rights are violated by when there is a total denial of the opportunity to make a closing summation. Id. at 865, 95 S.Ct. at 2556. The Supreme Court noted, however, that a defendant's constitutional rights are not necessarily violated by a limitation on closing summation:
In Herring, the United States Supreme Court discussed the right at issue in the context of counsel's opportunity to make a closing summation. Although petitioner represented himself at his criminal trial, there is no reason to believe that defendants have fewer rights in this regard when functioning as their own counsel.
This is not to say that closing arguments in a criminal case must be uncontrolled or even unrestrained. The presiding judge must be and is given great latitude in controlling the duration and limiting the scope of closing summations. He may limit counsel to a reasonable time and may terminate argument when continuation would be repetitive or redundant. He may ensure that argument does not stray unduly from the mark, or otherwise impede the fair and orderly conduct of the trial. In all these respects he must have broad discretion.Id. at 862, 95 S.Ct. at 2555. The United States Fifth Circuit Court of Appeals has noted:
The crucial question in reviewing the trial court's time limitations is whether the defendants' counsel were permitted to advocate effectively for their clients. One factor we consider in making this determination is whether the court's restrictions hamper the jury's ability to understand the information and issues at trial.United States v. Gray, 105 F.3d 956, 963 (5th Cir. 1997).
In his federal application, petitioner complains that the twenty-minute time limit on closing summation violated his rights because he was unable to (1) replay and discuss a tape of a telephone conversation between petitioner and Agent Couvillion and (2) highlight inconsistencies in Couvilhon's testimony. As to the tape, it was played at trial and its contents were discussed in exhaustive detail on direct and cross-examination. As to inconsistences in Couvillion's testimony, they were examined at great length on cross-examination and, more importantly, they were discussed in petitioner's closing summation. Furthermore, neither the facts nor the issues of petitioner's criminal case were particularly complex. Petitioner admitted his role in the transactions for which he was charged and, therefore, the jury was simply called upon to determine the validity of petitioner's entrapment defense. Petitioner has failed to demonstrate how the jurors' ability to understand his defense, which they unanimously rejected, was hampered due to the time limitation on closing argument. Accordingly, he has failed to establish a constitutional violation and this claim is, therefore, meritless.
State Rec., Vol. IV of VI, May 20, 1997, transcript, pp. 126-31, 203-06; State Rec., Vol. V of VI, May 22, 1997, transcript, pp. 34-37.
State Rec., Vol. IV of VI, May 20, 1997, transcript, pp. 184-90, 199-200, State Rec., Vol. V of VI, May 22, 1997, transcript, pp. 22-23.
State Rec., Vol. VI of VI, May 23, 1997, transcript, pp. 177-78, 183-84.
State Rec., Vol. VI of VI, May 23, 1997, transcript, pp. 224-27.
Ineffective Assistance of Counsel
Petitioner claims that his appellate counsel was ineffective when she "failed to raise pertinent, meritorious issues on direct appeal as argued and briefed by [petitioner] for counsel's review and filing on appeal." It appears that petitioner is complaining that appellate counsel failed to assert the four grounds identified by petitioner in his `Pro Se Supplement Appeal Brief': (1) the trial court erred in refusing to allow the use of a witness' grand jury testimony for impeachment purposes; (2) the trial court erred in limiting petitioner's closing argument to twenty minutes; (3) the jury instructions were inadequate; and (4) the trial court erred in denying a new trial.
Rec. Doc. 2, supporting memorandum, p. 14.
Rec. Doc. 2, Exhibit C. As noted, petitioner prepared a pro se appellate brief, but there is no evidence that the brief was received by the Louisiana Fifth Circuit Court of Appeal for filing. See note 5, supra. Because that court never ruled on the pro se claims, this Court will review the substance of the claims and make a determination with respect to petitioner's ineffective assistance claim.
In Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), the United States Supreme Court established a two-prong test for evaluating claims of ineffective assistance of counsel. A convicted defendant seeking relief must demonstrate that counsel's performance was deficient and that the deficient performance prejudiced his defense. See Strickland, 466 U.S. at 697, 104 S.Ct. at 2069. If this Court finds that petitioner has made an insufficient showing as to either of these two prongs of inquiry, i.e. deficient performance or actual prejudice, it may dispose of the claim without addressing the other prong. Id. "[T]heStrickland standard applies to claims of ineffective assistance of counsel by both trial and appellate counsel." Styron v. Johnson, 262 F.3d 438, 450 (5th Cir. 2001), cert. denied, ___ U.S. ___, 122 S.Ct. 1175, 152 L.Ed.2d 118 (2002).
Petitioner carries the burden of proof and must overcome a strong presumption that the conduct of his counsel falls within a wide range of reasonable representation. See Crockett v. McCotter, 796 F.2d 787, 791 (5th Cir. 1986); Mattheson v. King, 751 F.2d 1432, 1441 (5th Cir. 1985). Under the deficient performance prong of the Strickland test, "it is necessary to judge . . . counsel's challenged conduct on the facts of the particular case, viewed as of the time of counsel's conduct." Lockhart v. Fretwell, 506 U.S. 364, 371, 113 S.Ct. 838, 844, 122 L.Ed.2d 180 (1993) (quoting Strickland, 466 U.S. at 690, 104 S.Ct. at 2066). "An attorney's performance, which enjoys a strong presumption of adequacy, is deficient if it is objectively unreasonable." United States v. Acklen, 47 F.3d 739, 742 (5th Cir. 1995). Petitioner must prove that the conduct of counsel fell below the constitutional minimum guaranteed by the Sixth Amendment.See Styron, 262 F.3d at 450. Analysis of counsel's performance must take into account the reasonableness of counsel's actions in light of all the circumstances. See Strickland, 466 U.S. at 689, 104 S.Ct. at 2065.
In order to prove prejudice with respect to his ineffectiveness of appellate counsel claim, petitioner must show a reasonable probability that he would have prevailed on appeal but for his counsel's deficient representation. Briesno v. Cockrell, 274 F.3d 204, 207 (5th Cir. 2001). Therefore, petitioner must demonstrate a reasonable probability that if appellate counsel's performance had not been deficient in the manner claimed, the appellate court would have vacated or reversed the trial court judgment based on the alleged error. Id. at 210.
A claim of ineffective assistance of counsel is a mixed question of law and fact. See Pratt v. Cain, 142 F.3d 226, 230 (5th Cir. 1998). Therefore, this Court must defer to the state court unless its decision "was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States." 28 U.S.C. § 2254(d)(1).
In rejecting the ineffective assistance of appellate counsel claim urged by petitioner in his state post-conviction application, the state district court held as follows:
Turning to specification of error 5, ineffective assistance of counsel, Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984) provides the test for ineffective assistance of counsel. In order for a claim of ineffective assistance of counsel to prevail, the petitioner must show the counsel made errors so serious that counsel was not functioning as the counsel guaranteed by the Sixth Amendment and that the deficient performance prejudiced the defense in that the errors were so serious as to deprive petitioner of a fair trial. The test to be applied in effective assistance of counsel claims is that of Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); State v. Sanders, 93-0001 (La. 11/30/94), 648 So.2d 1272, cert denied 116 S.Ct. 2504, 135 L.Ed2d 194, which provides for the two-pronged test: 1. a deficient performance by counsel; and 2. the deficient performance prejudiced the defense so as to deprive the defendant of a fair trial. A review of the record in the instant case reveals that neither of the prongs of the Strickland test were met. Defendant's counsel not only did not perform deficiently, but rather performed with a high standard of professional excellence. Additionally, the defendant was not prejudiced in his defense. Thus under the test of Strickland, defendant's claim of ineffective assistance of counsel is without merit.
State Rec., Vol. I of VI, October 19, 2000, order.
As a preliminary matter, this Court notes that an appellate counsel's performance is not rendered deficient merely by a failure to raise every argument desired by the client. "Counsel is not obligated to urge on appeal every nonfrivolous issue that might be raised (not even those requested by defendant)." West v. Johnson, 92 F.3d 1385, 1396 (5th Cir. 1996). As the United States Supreme Court has noted, "Experienced advocates since time beyond memory have emphasized the importance of winnowing out weaker arguments on appeal and focusing on one central issue if possible, or at most on a few key issues." Jones v. Barnes, 463 U.S. 745, 751-52, 103 S.Ct. 3308, 3313, 77 L.Ed.2d 987 (1983). Far from evidencing ineffectiveness, an appellant counsel's restraint often benefits his client because "a brief that raises every colorable issue runs the risk of burying good arguments . . . in a verbal mound made up of strong and weak contentions." Id. at 753, 103 S.Ct. at 3313.
Nevertheless, as noted, if a petitioner is able to show a reasonable probability that a claim omitted by his counsel would have resulted in the trial court's judgment being vacated or reversed, a viable ineffective assistance of counsel claim exists. See Briesno, 274 F.3d at 210. Therefore, using that standard, this Court must consider each of the four omitted arguments.
Grand Jury Testimony
Petitioner claims that appellate counsel should have argued that the trial court erred in refusing to allow Detective Billy Matranga's grand jury testimony to be used for impeachment purposes at trial. However, the Louisiana Supreme Court has noted that grand jury testimony cannot be used for impeachment purposes on cross-examination unless the testimony falls within one of the two exceptions provided in La.C.Cr.P art. 434(A) (West 1991), i.e. to reveal statutory irregularities in the grand jury proceedings or to prove that the witness committed perjury before the grand jury. State v. Neslo, 433 So.2d 73, 86 (La. 1983). The Louisiana Supreme Court further noted:
At trial petitioner wanted to show that Matranga's trial testimony differed from his grand jury testimony; however, the judge refused to allow petitioner to impeach Matranga's testimony in that manner. See State Rec., Vol. V of VI, May 22, 1997, transcript, pp. 86-87, 104-07, 121.
La.C.Cr.P. art. 434(A) (West 1991) provides:
A. Members of the grand jury, all other persons present at a grand jury meeting, and all persons having confidential access to information concerning grand jury proceedings, shall keep secret the testimony of witnesses and all other matters occurring at, or directly connected with, a meeting of the grand jury. However, after the indictment, such persons may reveal statutory irregularities in grand jury proceedings to defense counsel, the attorney general, the district attorney, or the court, and may testify concerning them. Such persons may disclose testimony given before the grand jury, at any time when permitted by the court, to show that a witness committed perjury in his testimony before the grand jury. A witness may discuss his testimony given before the grand jury with counsel for a person under investigation or indicted, with the attorney general or the district attorney, or with the court.
This court has also specifically interpreted Article 434 to hold that the testimony of a witness before a grand jury is inadmissible to prove a witness' prior inconsistent statement at trial. Rather, the purpose for the exception relating to perjury is to allow the perjured testimony to be introduced where the grand jury witness is being criminally charged with perjury.Id. at 86-87 (citations omitted). Because Louisiana law would not allow petitioner to use the grand jury testimony to impeach Matranga, petitioner cannot establish a reasonable probability that his conviction would have been vacated or reversed if appellate counsel had asserted this claim on direct appeal.
Moreover, even if Louisiana law would allow the use of grand jury testimony for impeachment purposes, there is no evidence that Matranga would have been impeached. In fact, the Opposite is true. The trial court judge reviewed Matranga's grand jury testimony in camera and found that it was not inconsistent with his testimony at trial. State Rec., Vol. V of VI, May 22, 1997, transcript. pp. 104-08.
Limitation on Closing Argument
Petitioner argues that appellate counsel should have challenged the time limitation on closing argument. At trial, both the prosecution and the defense were limited to twenty minutes for closing arguments. Petitioner claims that such period of time was too brief for him to adequately summarize his defense. Having previously determined that petitioner's federal constitutional rights were not violated by this limitation, this Court need only determine whether there is a reasonable probability that the Louisiana Fifth Circuit Court of Appeal would have vacated or reversed petitioner's conviction on that ground pursuant to state law.The Louisiana Supreme Court has noted:
A trial judge has broad discretion and the duty "to require that criminal proceedings shall be conducted with dignity and in an orderly and expeditious manner and to so control the proceedings that justice is done." La.C.Cr.P. art. 17. The judge must therefore be and is given great latitude in controlling the duration and limiting the scope of closing summations. The court must, however, exercise that discretion in light of the very premise of our adversary system of criminal justice that partisan advocacy on both sides of a case will best promote the ultimate objective that the guilty be convicted and the innocent go free. No aspect of such advocacy could be more important . . . than the opportunity finally to marshal the evidence for each side before submission of the case to judgment.State v. Washington, 614 So.2d 711, 713 (La. 1993) (quotation marks, alterations, and citations omitted). The Louisiana Supreme Court has held that a reversal may be warranted if a trial court abuses its discretion by imposing a time limit on closing argument which is so severe that it prevents the defendant from fully and completely presenting his argument to a jury. Id. at 714.
As noted previously in this opinion, petitioner has not demonstrated that the jury's ability to understand his case was hampered due to the time limit on closing argument. Furthermore. petitioner has made no showing that the judge abused her discretion in imposing the limit. Accordingly, petitioner has not established a reasonable probability that his conviction would have been vacated or reversed if appellate counsel had asserted this claim on direct appeal.
Jury Instructions
Petitioner argues that appellate counsel should have challenged the trial court's failure to give additional jury instructions regarding entrapment. During deliberations, the jury returned and asked, "Is entrapment taking advantage of a physical or mental weakness? Example: Mentally or physically hooked on drugs?" In response to the question, the trial judge simply reread the original jury instruction given on entrapment. Petitioner argues that the trial court erred in failing to instruct the jury that "playing on a person's mental or physical weaknesses" is an inducement which can support an entrapment defense.
State Rec., Vol. VI of VI, May 23, 1997. transcript, p. 221.
Petitioner does not allege, and the record does not reflect, that he ever requested a jury instruction to that effect. Furthermore, he did not object to the jury instruction regarding entrapment, either before the instructions were given or after the question from the jury. Therefore, pursuant to Louisiana law, this claim could not be raised for the first time on appeal. See La.C.Cr.P. arts. 801 (objections to jury instructions) and 841 (contemporaneous objection rule); see also State v. McDonald, 414 So.2d 735, 736 (La. 1982) (contemporaneous objection to failure to give jury instruction is required for appellate review); State v. Tipton, 705 So.2d 1142, 1147 (La.App. 1st Cir. 1997) ("Erroneous jury instructions or failures to give jury instructions are not errors patent and. absent a contemporaneous objection, a defendant may not complain on appeal of an allegedly erroneous jury charge or the failure to give a jury instruction.") Accordingly, petitioner has not established a reasonable probability that his conviction would have been vacated or reversed if appellate counsel had asserted this claim on direct appeal.
Petitioner was given copies of the jury instructions for his review on May 22, 1997. See State Rec., Vol. V of VI, May 22, 1997, transcript, p. 180. Petitioner was aware of his right to submit potential jury instructions for the Court's consideration and he in fact submitted such instructions on different issues, one of which was accepted by the court. State Rec., Vol. VI of VI, May 23, 1997, transcript, pp. 101, 204-05.
Denial of New Trial
Petitioner argues that appellate counsel should have challenged the trial court's denial of a new trial. Petitioner filed a motion for a new trial asserting that the trial court erred when it (1) failed to provide a needed jury instruction regarding entrapment; (2) limited the defense's closing argument to twenty minutes; (3) allowed evidence regarding the May 28, 1996, drug transaction; (4) allowed the defendant and a defense witness to be questioned regarding petitioner's prior arrests and charges; (5) refused to require disclosure of the confidential informant's identity; (6) refused to provide access to Detective Matranga's grand jury testimony for purposes of cross-examination; and (7) failed to give a jury instruction regarding outrageous conduct. Lastly, petitioner's motion for a new trial alleged that the verdict was contrary to the law and the evidence.
State Rcc., Vol. I of VI, motion for a new trial.
As noted by the Louisiana Fifth Circuit Court of Appeal in its opinion on direct appeal, petitioner participated in a drug transaction on May 28, 1996; however, no criminal charges were instituted regarding that transaction. See text accompanying note 21, supra.
State Rec., Vol. I of VI, motion for a new trial.
Pursuant to Louisiana law, "[t]he ruling on a motion for a new trial is committed to the sound discretion of the trial judge and will be disturbed on appeal only when there is a clear showing of an abuse of that discretion." State v. Duvall, 747 So.2d 793, 797 (La.App. 1st Cir. 1999), writ denied, 785 So.2d 838 (La. 2001); see also State v. Bishop, 734 So.2d 674, 680 (La.App. 3rd Cir. 1999), writ denied, 754 So.2d 932 (La. 2000), As explained below, the petitioner has not demonstrated that trial court abused its discretion in denying a new trial on the grounds asserted.
This Court has already found meritless the first two grounds asserted, i.e. that the trial court erred in failing to provide an additional instruction regarding entrapment and in limiting petitioner's closing argument to twenty minutes. Therefore, petitioner cannot show that the trial court abused its discretion in denying a new trial on those grounds.
Petitioner's third ground for a new trial was that the trial court erred in allowing evidence regarding the May 28, 1996, drug transaction with which petitioner was not charged. On the first day of trial, the trial court allowed such evidence pursuant to Louisiana Code of Evidence 404(B)(1) and the res gestae doctrine. Petitioner has not demonstrated that the trial court abused its discretion in denying a new trial on that ground.
State Rec., Vol. IV of VI, May 20, 1997, transcript, p. 15.
Article 404(B)(1) (West 1997) provides:
Except as provided in Article 412, evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake or accident, provided that upon request by the accused, the prosecution in a criminal case shall provide reasonable notice in advance of trial, of the nature of any such evidence it intends to introduce at trial for such purposes, or when it relates to conduct that constitutes an integral part of the act or transaction that is the subject of the present proceeding.
The prosecution provided advance notice that it intended to introduce evidence of the May 28, 1996, incident. State Rec., Vol. I of VI, notice of intent to use evidence of other crimes.
Res gestae is "evidence that constitutes an integral part of the crime." State v. Charles, 790 So.2d 705, 708 (La.App. 5th Cir. 2001). Pursuant to the res gestae doctrine:
[a] close connexity between the charged and uncharged conduct is required to insure that the purpose served by admission of other crimes evidence is not to depict the defendant as a bad man, but rather to complete the story of the crime on trial by proving its immediate context of happenings near in time and place.Id. (quotation marks and footnote omitted).
Petitioner's fourth ground for a new trial was that the trial court erred in allowing the prosecution to cross-examine petitioner and a defense witness, Craig Culotta, regarding petitioner's prior arrests and charges. The trial court allowed such evidence because petitioner "opened the door" for its admission when, after being warned of the consequences, he placed his character in issue. Petitioner was first warned against asking questions regarding his character during his direct examination of a witness, Melody Clouatre, on the second day of trial:
See State Rec., Vol. VI of VI, May 23, 1997, transcript, pp. 45-57 (cross-examination of Culotta), pp. 135-39 (cross-examination of petitioner).
Q. [Petitioner]: Did you ever know me of dealing any drugs, whatsoever?
A. [Clouatre]: No. Not to my knowledge.
Q. Anywhere in life, did you ever know me to be a drug dealer?
A. Not to my knowledge.
Q. Do you think I have the capability or capacity —
MS. BENGE [the prosecutor]: Objection, Your Honor. It calls for speculation.
MR. PETTA: Do you think my character would allow me to —
THE COURT: Wait. Wait. Mr. Petta, wait. Wait. I haven't ruled. It's overruled as to speculation. The problem is I want Mr. Petta — Matthew, I want you and Mr. Petta and Mr. Montgomery and Ms. Benge to approach the bench. (Whereupon the following matters were discussed at the bench out of the hearing of jurors.)
THE COURT: Do you really want to ask those questions? (Speaking to Mr. Petta.)
MR. PETTA: I spoke to her. That's okay.
THE COURT: I want you to listen to me. You are going to ask her to establish your character with regard to, do you think I am the kind of guy that would, say, sell drugs. You have to understand something —
MS. BENGE: That's not what I objected to. I objected to the question that you didn't rule on, and I didn't object to the second one —
THE COURT: Why are we up here? They can hear every word. Ms. Darensburg needs to be up here, too. Did she know he did that or if he did that, then after that, you're starting to move into questions about, am I the kind of guy who would do that? If you start moving into that area, you — I am warning you of this as a matter of law, you are risking allowing the State to admit evidence in their case in rebuttal as to all of your past prior misconduct. Taking the stand gets in convictions.
MR. PETTA: Your Honor, I don't have to take the stand.
THE COURT: But listen to me, taking the stand does not get into evidence, known convictions. It doesn't permit her to get up here and say, man, this guy — he's done deals for drugs to support his habit and blah-blah-blah-blah-blah. Do you understand what I am saying? I am not telling you what to do. I am telling you to think before you act or talk to your advisor. Okay. Just think about it before you act.
State Rec., Vol. V of VI, May 22, 1997, transcript, pp. 155-57.
Despite the warning, petitioner subsequently elicited character testimony from a defense witness, Barry LaBruzzo. On direct examination, LaBruzzo testified that he had employed petitioner and that petitioner had never caused problems or stolen anything while working. On redirect examination, petitioner asked LaBruzzo whether he had ever known petitioner to sell narcotics or have drugs on him at work and LaBruzzo denied such knowledge. The trial court ruled that this testimony "opened the door" to rebuttal testimony regarding prior misconduct:
State Rec., Vol. VI of VI, May 23, 1997, transcript, pp. 10, 14.
State Rec., Vol. VI of VI, May 23, 1997, transcript. pp. 20-21.
MS. BENGE: At this time, the defendant has opened the door to his character evidence. So it's fresh in the Court's mind, he asked if he ever knew him to be the type of person to do —
THE COURT: Yes. And Mr. Petta — and from yesterday, for the record, we discussed it, and I think I gave him enough of an understanding of what character is and isn't, and, yes, he has opened the door.
MS. DARENSBURG [Petitioner's court-appointed stand-by counsel]: And I explained it to him this morning.
THE COURT: Okay. And he has made — from everything Mr. Petta has done, he has made an intelligent, tactical decision, just like any other lawyer — any lawyer would do, and he — from what I have said to him and what Ms. Darensburg tells me she said that he has full knowledge. knowledge. Now, the problem is, I need Mr. Petta up here to explain this. E.T., come up with Mr. Petta. would you please? Approach, Mr. Petta.
MR. PETTA: Okay.
THE COURT: Okay. Yesterday — the DA raises the issue, have you now opened the door to the question of character, and we discussed that yesterday if you recall. If you put evidence on as to your good character or your — did you know me to be the kind of guy that would steal things or do this or do that that would open the door to character, and based upon the manner in which you have conducted yourself in this trial in which you have been an incredibly effective counsel for yourself, I am confident that you put your witness on the stand understanding the potential ramifications. We have talked about it. Ms. Darensburg, did you and Mr. Petta discuss it?
MS. DARENSBURG: Yes, we discussed it this morning.
THE COURT: And I think you made an intelligent decision that you wanted to put witnesses on, but it has now, as I told you it would, you have traveled down a path that opens the door to your bad character, i.e., your convictions, which in my mind, it was — even though they are for heroin and, therefore, they fit for being that they are similar, my question in my own mind was the remoteness of it, and I instructed you that I would not admit them unless character — without specific case law as to the remoteness. Although, I don't think it really matters.
MR. PETTA: I didn't ask questions to character. I asked him to give me an account of my work relation with him to show where I was at.
THE COURT: But you went well beyond that, and it is my —
MR. PETTA: I didn't question him — I questioned him to specific things like did he know I was kicking at the time.
THE COURT: That's all character. Didn't you — the fact that you didn't steal things when you were in peoples' homes —
MR. PETTA: But I didn't ask him that. That was — She could have cut him off. She could have cut him off.
THE COURT: No. You could have cut him off. You have placed character in issue. Frankly, Mr. Petta, it doesn't matter. You have said all this to the jury. You have already told the jury. You made an educated decision to put them on. There are other arrests. The arrests now come in.
MR. PETTA: No. I object. I strongly object.
MS. BENGE: He, also, specifically asked if he had known him to deal drugs, and he denied it, on the job or that he had ever seen him do drugs.
THE COURT: I think it has to do with predisposition. I have no problem with your questions. Yes, sir. They do open the door to other things. I have no problem with the relevance and predisposition. It just now opens the door because they are character notice in the framework of character. Therefore, I am finding that you have opened the door to the issue of character which lets in more remote acts of heroin convictions and prior arrests.
State Rec., Vol. VI of VI, May 23, 1997, transcript, pp. 22-25.
The Louisiana Supreme Court has noted:
When a defendant chooses to place his character at issue by introducing evidence of his good character, the State is permitted to rebut such evidence either by calling witnesses to testify to the bad character of the defendant, or by impeaching the defense witnesses' ability to testify to the defendant's character. This Court has adopted the position that the cross-examination of a character witness may extend to his knowledge of particular misconduct, prior arrests, or other acts relevant to the particular moral qualities as are pertinent to the crime with which defendant is charged. The purpose of such inquiries is to expose the witnesses' possible lack of knowledge regarding the character of the defendant, or the witnesses' standard of evaluation.State v. Bagley, 378 So.2d 1356, 1358 (La. 1979) (citations omitted). Petitioner has failed to show that the trial court erred in allowing questions regarding petitioner's prior arrests and charges. Accordingly, he has not demonstrated that the trial court abused its discretion in denying a new trial on that ground.
As for his fifth ground for a new trial, petitioner argued that the trial court erred when it failed to require disclosure of the confidential informant's identity. As previously noted, however, the Louisiana Fifth Circuit Court of Appeal ruled on direct appeal that disclosure was not required. Petitioner has not demonstrated that the trial court abused its discretion when it refused to grant a new trial on that ground.
As for his sixth ground for a new trial, petitioner argued that the trial court erred when it refused to provide him with access to Detective Matranga's grand jury testimony for impeachment purposes. As stated previously, Louisiana law would not allow Matranga's grand jury testimony to be used to impeach his trial testimony. Therefore, petitioner cannot show that the trial court abused its discretion in denying a new trial on that ground.
As for his seventh ground for a new trial, petitioner argued that the trial court erred when it failed to give a jury instruction regarding outrageous conduct. Petitioner had advance notice of the jury instructions and he offered proposed jury instructions on some issues. However, he did not request a jury instruction as to "outrageous conduct." Petitioner has not demonstrated that the trial court abused its discretion in denying a new trial on that ground.
See note 42, supra.
State Rec., Vol. VI of VI, July 7, 1997, transcript, pp. 23-24.
As for his eighth ground for a new trial, petitioner argued that the verdict was contrary to the law and the evidence. Pursuant to Louisiana law, when a motion for a new trial is based on an allegation that the verdict was contrary to law and the evidence:
the trial judge can only review the weight of the evidence and as such make a factual review as a "thirteenth juror," rather than under the sufficiency of the evidence standard enunciated in Jackson v. Virginia, [ 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979)]. The ruling on a motion for new trial is committed to the sound discretion of the trial judge and will be disturbed on appeal only where there is a clear showing of abuse of that discretion.State v. Badeaux, 802 So.2d 905, 908 (La.App. 5th Cir. 2001). Petitioner has not shown that the trial judge abused her discretion in weighing the evidence as a "thirteenth juror" and refusing to grant a new trial.
For the reasons stated, petitioner has not established a reasonable probability that his conviction would have been vacated or reversed if appellate counsel had challenged the denial of a new trial on direct appeal. The state district court found petitioner's claims regarding ineffective assistance of appellate counsel to be meritless. Petitioner has failed to establish that the state court decision "was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States." 28 U.S.C. § 2254(d)(1). Accordingly, applying the AEDPA's deferential standard, this Court rejects petitioner's claim that his appellate counsel was ineffective.
Pro Se Arguments on Appeal
Petitioner claims that the Louisiana Fifth Circuit Court of Appeal "refused to hear his pro se assignments of error" asserted in his "Pro Se Supplement Appeal Brief." However, as this Court noted previously, the pro se appellate brief was never filed in that court. Accordingly, petitioner's claim is meritless.
Rec. Doc. 2, pp. 14, 16.
See note 5, supra.
However, even if the supplemental brief had been filed and the Louisiana Fifth Circuit Court of Appeal had refused to consider it, no federal constitutional violation would have been suffered as a result. A criminal defendant has no federal "constitutional right to self-representation on direct appeal from a criminal conviction."Martinez v. Court of Appeal of California. Fourth Appellate District, 528 U.S. 152, 163, 120 S.Ct. 684, 692, 145 L.Ed.2d 597 (2000). Moreover, as noted previously by this Court in its discussion of petitioner's ineffective assistance claim, this Court examined the claims raised in the "Pro Se Supplement Appeal Brief" and it has found them to be meritless.
Insufficient Evidence
Petitioner contends that there was insufficient evidence to support his conviction because the evidence at trial established that he had been entrapped. The United States Fifth Circuit Court of Appeals has noted that claims of insufficient evidence are to be analyzed pursuant to the standard set forth in Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979):
In considering challenges to the sufficiency of evidence in habeas proceedings, "the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt."Santellan v. Cockrell, 271 F.3d 190, 193 (5th Cir. 2001) (quotingJackson, 443 U.S. at 319, 99 S.Ct. at 2789), cert. denied, ___ U.S. ___, 122 S.Ct. 1463, ___ L.Ed.2d (2002). The Jackson standard "must be applied 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. This Court may find the evidence sufficient even though the facts additionally support one or more reasonable hypotheses which are consistent with petitioner's claim of innocence. Foy v. Donnelly, 959 F.2d 1307, 1316 (5th Cir. 1992); see also Gibson v. Collins, 947 F.2d 780, 783 (5th Cir. 1991). "The Jackson inquiry `does not focus on whether the trier of fact made the correct guilt or innocence determination, but rather whether it made a rational decision to convict or acquit.'" Santellan, 271 F.3d at 193 (quoting Herrera v. Collins, 506 U.S. 390, 402, 113 S.Ct. 853, 861, 122 L.Ed.2d 203 (1993)).
A sufficiency of the evidence argument presents a mixed question of law and fact. Taylor v. Day, 1999 WL 195515, at *3 (E.D. La. April 6, 1999),aff'd, 213 F.3d 639 (5th Cir. 2000). Therefore, this Court must defer to the state court unless its decision "was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States." 28 U.S.C. § 2254(d)(1).
On direct appeal, the Louisiana Fifth Circuit Court of Appeal considered and rejected petitioner's claim stating:
In his second assignment of error, the defendant contends he proved by a preponderance of the evidence that [he] was entrapped to participate in this drug transaction. The defense of entrapment was discussed at length by the Supreme Court in State v. Brand, 520 So.2d 114 at 116 in which the Court stated:
Entrapment is a defense which arises when a law enforcement official or an undercover agent acting in cooperation with such an official, for the purpose of obtaining evidence of a crime, originates the idea of the crime and then induces another person to engage in conduct constituting the crime, when the other person is not otherwise disposed to do so. The defense is designed to deter the police from implanting criminal ideas in innocent minds and thereby promoting crimes which would not otherwise have been committed. Obviously, law enforcement agents should not persuade citizens to commit crimes, and the defense is recognized to prevent shocking police inducement of the perpetration of a crime.
Entrapment is an affirmative defense. Thus, the burden was on defendant to prove entrapment by a preponderance of the evidence. The question whether the government agent implanted the criminal idea in the mind of an innocent person to induce the commission of a crime that would not otherwise be committed is one for the jury. The entrapment defense will not be recognized when the law enforcement official merely furnishes the accused with an opportunity to commit a crime to which he is predisposed. In entrapment cases, a line must be drawn between the trap for the unwary innocent and the trap for the unwary criminal. Thus, the focus in determining an entrapment defense is on the conduct and predisposition of the defendant, as well as the conduct of the government agent. Citations omitted.
On appeal, contentions of entrapment are reviewed pursuant to Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). State v. Hardy, 98-25, (La.App. 5th Cir. 5/13/98), 715 So.2d 466. We must first determine if the defendant proved by a preponderance of the evidence that he was induced to commit the crime. Id. If we find the defendant carried his burden of proof, the next inquiry is whether the state adduced evidence of the defendant's predisposition to commit the crimes such that a rational trier of fact, viewing the evidence in the light most favorable to the prosecution, could have concluded that it was the defendant's predisposition to commit the crime, rather than the state's inducement which cause the defendant's conduct. Mr. Petta admits he sold heroin. He testified that he was approached by Keith, his drug addict friend-turned informant, who introduced him to undercover Agent Couvillion and asked him to purchase drugs. He admits that on at least two occasions he took money, purchased heroin, kept some of the drugs for his own use and delivered the rest to Agent Couvillion. He claims he was entrapped because he was given heroin as compensation for obtaining heroin for Agent Couvillion. Agent Couvillion testified that neither he nor the informant promised or gave the defendant anything to induce the heroin sales. While there is conflicting testimony concerning whether Mr. Petta was induced into selling heroin, the record contains several indications that Mr. Petta was predisposed to distributing heroin. Mr. Petta testified that he told the undercover agent, "Now if you [are] gonna give me something I'll do it cause I know you're not supposed to give me nothing. If you gonna give me something I'll go take care of your business." A rational trier of fact viewing the evidence in the light most favorable to the prosecution, could easily have found the defendant's own predisposition caused him to participate in the sale of heroin. The defendant failed to carry his burden of proving entrapment.Petta, 729 So.2d at 31-32.
State Rec., Vol. II of VI.
Petitioner has failed to demonstrate that the state court's decision was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States. Applying the AEDPA's deferential standard, this Court rejects petitioner's claim that there was insufficient evidence to support his conviction.
Because this Court has determined that petitioner's claims are meritless, his application for federal habeas corpus relief is DENIED.