Opinion
CIVIL ACTION NO. 03-2124 SECTION (H)(2)
October 14, 2003
ORDER AND REASONS
Ernest Serio's pro se motion for post-conviction relief pursuant to 28 U.S.C. § 2254 and his "Motion for Judgment of Default" were considered on memoranda.
Petitioner urges that he is entitled to a default judgment because the state failed to file its response to his motion for habeas relief by the court ordered deadline of September 28, 2003. Although the state did not file its response until September 29, 2003, I nonetheless exercise my discretion and deny petitioner's motion for default judgment.
Upon review of the entire state court record, it is clear that the record is sufficient for the purpose of adjudicating petitioner's claims, that a federal evidentiary hearing is not necessary, and that the petition should be dismissed for the following reasons.
Serio is a state prisoner who in September 2001 pleaded guilty to one count of theft of goods valued in excess of $100.00 (La.Rev.Stat. 14:67.10). The state judge sentenced petitioner to two years imprisonment at hard labor. Following his conviction, the state judge adjudicated Serio to be a third offender pursuant to La.Rev.Stat. 15:529.1 and sentenced him to a four year term of imprisonment at hard labor. Serio did not appeal his conviction.
Thereafter petitioner filed an application for habeas corpus relief in the state district court; the state judge denied relief. State v. Serio, No. 00-6727 (24th Judicial District Court March 22, 2002). Both the state court of appeals and the Louisiana Supreme Court denied petitioner's application for writs. State v. Serio, No. 02-KH-393 (La.App. 5th Cir. April 19, 2002); State ex rel Serio v. State, 839 So.2d 24 (La. 2003).
In this court petitioner contends that his habitual offender conviction should be vacated on the following grounds:
• the state court improperly relied upon a 1976 manslaughter conviction (La.Rev.Stat. 14:30.1) as a predicate offense for the habitual offender conviction;
• the state court illegally imposed a third felony offense sentence for a crime classified as a misdemeanor;
• the habitual offender bill of information is invalid;
• ineffective assistance of counsel; and
• "errors patent" on the face of the record.
Petitioner raised these claims in the state court proceedings referred to above; he has exhausted available state court remedies. Rose v. Lundy, 455 U.S. 509, 102 S.Ct. 1198, 71 L.Ed.2d 379 (1982); Depuy v. Butler, 837 F.2d 699, 702 (5th Cir. 1988).
The state concedes that Serio's motion for federal habeas corpus relief is timely under 28 U.S.C. § 2244(d)(1).
STANDARD OF REVIEW
28 U.S.C. § 2254(d) mandates that claims adjudicated on the merits in state court proceedings are subject to the following standards of review:
(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 the 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.
In Drinkard v. Johnson the Fifth Circuit Court of Appeals analyzed the standards of review set out in the § 2254(d) and held that when reviewing questions of fact which were previously adjudicated on the merits by a state court, a federal court may grant habeas relief only "if the state court adjudication of the claim 'resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence.'" Id. (citing 28 U.S.C. § 2254(d)(2)). As for questions of law, "a federal court may grant habeas relief only if it determines that a state court's decision rested on a legal determination that was contrary to . . . clearly established Federal law, as determined by the Supreme Court." Id. at 768. Where a mixed question of law and fact is being reviewed, "a federal court may grant habeas relief only if it determines that the state court decision rested on 'an unreasonable application of clearly established Federal law, as determined by the Supreme Court of the United States,' to the facts of the case." Id. at 768 (quoting 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] Court has on a set of materially indistinguishable facts.'" Knox v. Johnson, 224 F.3d 470, 476 (5th Cir. 2000) (quoting Williams v. Taylor, 529 U.S. 362, 120 S.Ct. 1495, 1523, 146 L.Ed.2d 389 (2000)). A writ may be granted based upon a state court's unreasonable application of federal law only "if the state court identifies the correct governing principle . . . but unreasonably applies the principle to the facts of petitioner's case." Id.
97 F.3d 751, 767-68 (5th Cir. 1996), cert. denied, 520 U.S. 1107, 117 S.Ct. 1114, 137 L.Ed.2d 315 (1997), overruled in part on other grounds, Lindh v. Murphy, 521U.S. 320, 117 S.Ct. 2059, 138 L.Ed.2d 481 (1997) (Lindh effectively overrules the holding in Drinkard that the amendments to chapter 153 of Title 28, governing all habeas proceedings, apply to petitions for relief pending on the effective date of the statute). This application for habeas relief was filed after the effective date of the amendments to chapter 153 of Title 28.
BACKGROUND
The following criminal history is relevant in analyzing petitioner's contentions. In 1976 Serio pleaded guilty to one count of manslaughter (La.Rev.Stat. 14:31); the state district judge sentenced petitioner to a twenty one year prison term. Petitioner alleges that he remained incarcerated until February 5, 1989. In January 2000 petitioner pleaded guilty to 2 counts of issuing worthless checks (La.Rev.Stat. 14:71). Count 1 of that bill of information charged defendant with issuing worthless checks between April 22, 1998 and May 12, 1998. On September 12, 2001, petitioner pleaded guilty to one count of theft of goods valued in excess of $100.00 (La.Rev.Stat. 14:67.10); the state district judge sentenced petitioner to a two year prison term. That same day the state filed a bill of information charging petitioner as a multiple offender, petitioner entered a plea of guilty to that bill of information, and the state judge sentenced petitioner to a four year prison term.Throughout each of these criminal proceedings petitioner was represented by counsel.
MANSLAUGHTER PREDICATE OFFENSE
Petitioner contends that his manslaughter conviction cannot be used as a predicate offense for his multiple offender conviction. At the time petitioner pleaded guilty to manslaughter, the Louisiana multiple offender statute included the following provision:
This section shall not be applicable in cases where more than five years have elapsed since the expiration of the maximum sentence, or sentences, of the previous conviction or convictions and the time of the commission of the last felony for which he had been convicted. In computing the period of time as provided herein, any period of servitude by a person in a penal institution, within or without the state, shall not be included in the computation of any of said five year periods.
La.Rev.Stat. 15:529.1(C). In 1995, prior to petitioner's theft conviction at issue here, the Louisiana legislature changed the "cleansing period" in La.Rev.Stat. 15:529.1(C) from five to ten years. See La. Acts 1995, No. 839, § 1. Serio asserts that the five year period applies to him, and that applying the ten year "cleansing period" to him violates the Ex-post Facto Clause of the Constitution. This contentions lacks merit.
Article 1, § 10 of the United States Constitution prohibits ex post facto application of criminal laws by the State. Two critical elements must be present for a criminal or penal law to be ex post facto: the law must apply to events occurring before its enactment; and the law must disadvantage the defendant affected by it. Weaver v. Graham, 450 U.S. 24, 29, 101 S.Ct. 960, 964, 67 L.Ed.2d 17 (1981). Among other things, not relevant here, the Ex Post Facto Clause prohibits statutes which which make more burdensome the punishment for the crime, after its commission, Collins v. Youngblood, 497 U.S. 37, 42, 110 S.Ct. 2715, 2719, 111 L.Ed.2d 30 (1990).
The enhancement statute in effect at the time of the commission of the offense for which the sentence is enhanced is the applicable enhancement statute. See State v. Everett, 816 So.2d 1272 (La. 2002). Because La.Rev.Stat. 15:529.1(C) included the ten year cleansing period when petitioner committed the underlying theft offense in October 2000, the ten year period applies.
Applying the more onerous ten year cleansing period does not violate the Ex Post Facto Clause.
Cleansing periods are . . . purely statutory rules constituting self-imposed restraints on the state's plenary power to define and punish crimes. . . . Enlarging or even eliminating a statutory cleansing period does not require an individual to defend his past acts charged against him, for which he has already been convicted and punished, but to measure his future conduct in light of the legislature's changing perception of significant social problems.State v. Rolen, 662 So.2d 446, 449(La. 1995) (internal citations omitted). Multiple offender statutes similar to that involved herein, do not violate the Ex Post Facto Clause of the Constitution. See Gryger v. Burke, 334 U.S. 728, 732, 68 S.Ct. 1256, 1258, 98 L.Ed.2d 1683 (1948) ("The sentence as a fourth offender or habitual criminal is not to be viewed as either a new jeopardy or additional penalty for the earlier crimes. It is a stiffened penalty for the latest crime, which is considered an aggravated offense because a repetitive one.").
The challenged multiple offender proceeding does not charge a new crime; it is merely a method of increasing punishment of second and subsequent offenders. For purposes of analyzing the ex post facto implications of habitual offender statutes, the relevant offense is the current or latest crime, not the predicate offense. Thus, the Ex Post Facto Clause is not implicated.
The record does not state the exact date petitioner completed serving his sentence for the manslaughter conviction. However, even using February 5, 1989, the date urged by petitioner, it is clear that petitioner did not have ten years without a felony conviction between his release date for the manslaughter conviction and April 1998, the date he committed his earliest worthless check offense. Accordingly, the cleansing period does not apply; the state district judge properly relied upon the manslaughter conviction as a predicate offense for the habitual offender conviction.
Additionally, petitioner asserts that his manslaughter conviction cannot serve as a predicate offense for his multiple offender conviction because that manslaughter conviction is not valid. I need not analyze petitioner's specific contentions concerning the invalidity of his manslaughter conviction. Under Lackawanna County District Attorney v. Cross, 532 U.S. 394, 121 S.Ct. 1567, 149 L.Ed.2d 608 (2001), that conviction is "conclusively valid."
[O]nce a state conviction is no longer open to direct or collateral attack in its own right because the defendant failed to pursue those remedies while they were available (or because the defendant did so unsuccessfully), the conviction may be regarded as conclusively valid. See Daniels [v. United States, 523 U.S. 374, 382, 121 S.Ct. 1578, 1583, 149 L.Ed.2d 590 (2001)]. If that conviction is later used to enhance a criminal sentence, the defendant generally may not challenge the enhanced sentence through a petition under § 2254 on the ground that the prior conviction was unconstitutionally obtained.Id. at 403, 121 S.Ct. at 1574. Because petitioner failed to timely pursue a direct appeal of his manslaughter conviction and has completed serving his manslaughter sentence, that conviction is "no longer open to direct or collateral attack in its own right" and is "conclusively valid."
There is an exception to the general rule announced in Lackawanna; a petitioner may challenge "an enhanced sentence on the basis that the prior conviction used to enhance the sentence was obtained where there was a failure to appoint counsel in violation of the Sixth amendment, as set forth in Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963)." Id. That exception is inapplicable; petitioner concedes that he was represented by counsel throughout the manslaughter proceedings.
INVALIDITY OF THE HABITUAL OFFENDER BILL OF INFORMATION
Petitioner asserts that the bill of information charging him as a habitual offender is invalid because it charges that he pled guilty to the manslaughter charge in "1776" rather than 1976. By pleading guilty, a defendant waives all non-jurisdictional defects in the proceedings. Smith v. Estelle, 711 F.2d 677, 682 (5th Cir. 1983). A typographical error in a date included in a bill of information is clearly not a jurisdictional defect in the proceedings. Petitioner has waived this claim.
THE THEFT CONVICTION
Serio contends that his habitual offender conviction must be vacated because the state trial judge illegally imposed upon him a sentence as a third felony offender when in fact his theft conviction qualifies as a misdemeanor, not a felony. In urging that his theft conviction is a misdemeanor conviction, petitioner relies upon the fact that the theft he committed occurred after the effective date of the 1999 amendment to La.Rev.Stat. 14:67. That amendment raised from "one hundred dollars or more" to "three hundred dollars or more" the value required for a felony conviction under La.Rev.Stat. 14:67.
The cited amendment does not apply to the offense committed by petitioner. Serio did not plead guilty to violating La.Rev.Stat. 14:67, the general theft statute. Rather, he was charged with and pleaded guilty to La.Rev.Stat. 14:67.10, which criminalizes theft of goods from merchants and provides a two year term of imprisonment for such thefts having "a value of one hundred dollars or more, but less than five hundred dollars. . . ." The state district judge did not err in imposing a third felony offender sentence upon petitioner.
INEFFECTIVE ASSISTANCE OF COUNSEL
Petitioner urges a gallimaufry of ineffective assistance of counsel claims. Each of the allegations falls into one of the following categories: counsel failed to challenge the habitual offender bill of information, counsel failed to challenge the convictions relied upon in concluding that petitioner qualified as a third offense habitual offender, or counsel imprudently advised him to enter a plea of guilty to the habitual offender bill of information.
In Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), the Supreme Court established a two prong test for evaluating claims of ineffective assistance of counsel: a defendant seeking relief must demonstrate that counsel's performance was deficient and that the deficient performance prejudiced the defense. With regard to the performance prong, "the defendant must show that counsel's representation fell below an objective standard of reasonableness." Id. at 688, 104 S.Ct. at 2064. There is a strong presumption that an attorney's performance "falls within the wide range of reasonable professional assistance." Id. at 689, 104 S.Ct. at 2065. The defendant must overcome the presumption that the challenged action might be considered to be sound trial strategy. Id. (internal quotation and citation omitted).
In order to satisfy the prejudice requirement, "[t]he defendant must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome." Strickland v. Washington, 466 U.S. at 694, 104 S.Ct. at 2068. It is clear that even "professionally unreasonable" errors on the part of counsel do not warrant setting aside a conviction if the error had no effect on the proceeding. Larsen v. Maggio, 736 F.2d 215 (5th Cir. 1984).
The burden of demonstrating prejudice rests on the defendant. Strickland v. Washington, 466 U.S. at 693, 104 S.Ct. at 2067. The defendant must prove that an alleged error actually had an adverse effect on the defense. "[T]he petitioner must demonstrate that the "might have beens' [at trial] would have been important enough to affect the proceedings' reliability." Larsen v. Maggio, 736 F.2d at 218. If the defendant makes an insufficient showing on either component of the ineffective assistance of counsel inquiry, it is not necessary to examine the remaining prong of the test. Strickland v. Washington, 466 U.S. at 697, 104 S.Ct. 2069.
Petitioner's claims that his counsel rendered ineffective assistance because he failed to challenge the habitual offender bill of information are without merit. For the reasons stated above, increasing the cleansing period of the habitual offender statute does not implicate the Ex Post Facto Clause and therefore does not provide a basis for invalidating the habitual offender conviction. Thus, counsel's failure to challenge the conviction on that ground cannot constitute deficient performance. Moreover, as previously discussed, under Lackawanna the manslaughter conviction is conclusively valid.
Similarly, Lackawanna prohibits an attack on the worthless check conviction. Because petitioner did not file a timely appeal of that conviction and the conviction is no longer subject to collateral review in its own right, the worthless check conviction is "conclusively valid" under Lackawanna Thus, counsel did not render ineffective assistance by failing to challenge that conviction.
Documentation from the Department of Corrections indicates that petitioner completed his sentence on the worthless check conviction on April 28, 2000. See Exhibit A, attached hereto. Petitioner does not dispute that fact. Thus, after April 28, 2000, Serio could not collaterally challenge the worthless check conviction.
Petitioner further contends that counsel rendered ineffective assistance by urging him to plead guilty to the multiple offender bill of information. Petitioner has not demonstrated any valid defense to that bill of information. Accordingly, petitioner has failed to demonstrate that counsel's recommendation to plead guilty constitutes deficient performance.
ERROR PATENT REVIEW
Petitioner asks that I review the record for error patent on the face of the record. Louisiana Code of Criminal Procedure Article 920 defines the scope of state appellate review to include an error designated by the appellant in the assignment of errors as well as an error patent, i.e., "[a]n error that is discoverable by a mere inspection of the pleadings and proceeding without inspection of the evidence." That scope of review is not available in this proceeding for federal post-conviction relief. Federal habeas review is limited to questions of constitutional dimension. Sawyer v. Butler, 881 F.2d 1273. A request for error patent review fails to present a question of constitutional dimension. Petitioner is not entitled to the requested relief.