Opinion
No. 2015–KP–1362.
05-20-2016
STATE of Louisiana v. Darius A. DUCKETT.
Opinion
Denied. Relator fails to show he received ineffective assistance of counsel under the standard of Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). We attach hereto and make a part hereof the District Court's written reasons denying relator's application.
Relator has now fully litigated his application for post-conviction relief in state court. Similar to federal habeas relief, see 28 U.S.C. § 2244, Louisiana post-conviction procedure envisions the filing of a second or successive application only under the narrow circumstances provided in La.C.Cr.P. art. 930.4 and within the limitations period as set out in La.C.Cr.P. art. 930.8. Notably, the Legislature in 2013 La. Acts 251 amended that article to make the procedural bars against successive filings mandatory. Relator's claims have now been fully litigated in accord with La.C.Cr.P. art. 930.6, and this denial is final. Hereafter, unless he can show that one of the narrow exceptions authorizing the filing of a successive application applies, relator has exhausted his right to state collateral review. The District Court is ordered to record a minute entry consistent with this per curiam.
ATTACHMENT
TWENTY FOURTH JUDICIAL DISTRICT COURT PARISH OF JEFFERSON STATE OF LOUISIANA DIVISION "L"
NO. 09-6616
STATE OF LOUISIANA
VERSUS
DARIUS DUCKETT
FILED: 5/7/15
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DEPUTY CLERK
ORDER
This matter comas before the court on petitioner's APPLICATION FOR POST-CONVICTIONRELIEF, STAMPED AS FILED JANUARY 7, 2015 STATE'SRESPONSE, STAMPED AS FILED APRIL 10, 2015, DUCKETT'S REPLY TO STATE'SRESPONSE TO DUCKETT'S APPLICATION FOR POST-CONVICTION RELIEF,STAMPED AS FILED APRIL 27, 2015. AND STATE'S SURREPLY. STAMPED ASFILED APRIL 30 2015.
On December 11, 2011, petitioner was convicted of count #1, LSA-R.S. 14:30.1, relativeto second degree murder, and count #2, LSA-RS. 14:(27)30.1, relative to attempted seconddegree murder. The court sentenced him on count #1 to life in prison, and count #2 to 50 yearsimprisonment at hard labor, consecutively. His conviction was affirmed on appeal. State atDuckett, 12-KA-578 (La. App. 5/16/13) 119 So.3d 168, writ denied, (La. 1/17/14) 130 So.3d340.
Petitioner, through counsel, filed en application far post-conviction relief, alleging thefollowing claims:
1. Denial of severance and new trial due to failure to sever abridged due process clause.
2. Ineffective assistance of trial counsel in presentation of motion to sever and new-trial motion due to failure to sever, in particular due process claim.
3. Ineffective assistance of appellate counsel with respect to denial of severance and new-trial motion due to failure to sever, in particular to argue denial of federal due process and failure to bring issue to Louisiana Supreme Court in writ application
Claim #1
As the Stare surmises in it; response, this claim is procedurally barred as it waspreviously raised and addressed on direct appeal. Under LSA-C.Cr.P. Art. 930.4(A), unlessrequired in the interest of justice, any claim for relief which was fully litigated in an appeal fromthe proceedings leading to the judgment of conviction and sentence shall not be considered. Thisclaims (and/or issues within the claim) was previously argued and addressed in petitioner's directappeal. The merits of the claim shall not be reviewed by this court in post-conviction relief.
Claim #2
It is clear that the petitioner has a Sixth Amendment right to effective legal counsel.Under the well-known standard set out in Strickland v. Washington 466 U.S. 668, 104 S.Ct2052, 80 L.Ed.2d 674 (1984), and State v. Washington 491 So.2d 1337 (La.1986), a convictionmust be reversed if the defendant proves (1) that counsel's performance fell below an objectivestandard of reasonableness under prevailing professional norms, and (2) counsel's inadequateperformance prejudiced defendant to the extent that the trial was rendered unfair and the verdictsuspect. State v. Legrand, 2002-1462 (La. 12/3/03), 864 So.2d 89.
To be successful in arguing a claim of ineffective assistance of counsel, a post-convictionpetitioner must prove deficient performance to the point that counsel is not functioning ascounsel within the meaning of the Sixth Amendment. A petitioner must also prove actualprejudice to the point that the results of the trial cannot be trusted. It is absolutely essential thatboth prongs of the Strickland test must be established before relief will be granted by a reviewingcourt.
Furthermore, there is a strong presumption that counsel's performance is within the widerange of effective representation. Effective counsel, however, does not mean errorless counselend the reviewing court does not judge counsel's performance with the distorting benefits of A-18
hindsight, but rather determines whether counsel was reasonably likely to render effectiveassistance. State v. Soler, 93-1042 (La.App. 5 Cir. 4/26/94), 636 So.2d 1069, 1075,
Petitioner claims that trial counsel was ineffective in presenting the argument forseverance and in his new trial motion in that he failed to raise a federal due process claim. As theState points out in its response, petitioner fails to prove that the Motion to Sever would havebeen granted had counsel added the words "due process" to his argument to the trial court. Hefails to prove that counsel acted deficiently by not including "due process" in the pleading, orthat any prejudice resulted.
Claim #3
Petitioner next claims that appellate counsel was ineffective for failing to argue a federaldue process violation on appeal to the Fifth Circuit Court of Appeal end the Louisiana SupremeCourt. In reviewing claims of ineffective assistance of counsel on direct appeal, the SupremeCourt of the United States has expressly observed that appellate counsel "need not advance everyargument, regardless of merit, urged by the defendant. Evitts v. Lucey, 469 U.S. 387, 394 (1985).The Court gives great deference to professional appellate strategy and applauds counsel for"winnowing out weaker arguments on appeal and focusing on one central issue if possible, and atmost a few key issues. Jones v. Barnes, 463 U.S. 745 (1983). This is true even where the weakerarguments have merit. Id. at 751-2.
When the claim of ineffective assistance of appellate counsel is based on failure to raisethe issue on appeal, the prejudice prong of the Strickland test requires the petitioner to establishthat the appellate court would have granted relief, had the issue been raised. United States v.Phillips, 210 F.3d 345, 350 (5 Cir. 2000). Petitioner fails to do so. Rather, petitioner argues thatappellate counsel failed to preserve a federal due process claim, which petitioner speculates,"would have a reasonable probability of success in federal court." Petitioner fails to provedeficient performance, as appellate counsel cannot "preserve" claims not raised before the trialcourt. Furthermore, petitioner fails to prove any prejudice resulted, as he does not prove thatpetitioner would have been successful at arguing "due process" on appeal. Furthermore, hisclaim as to the probability of success in federal court is purely speculative,
Evidentiary Bearing
The court notes that petitioner has requested an evidentiary hearing. The court finds thatpetitioner is not entitled an evidentiary hearing, Under LSA-C.Cr.P. art 929, if the courtdetermines that the factual and legal issues can be resolved based upon the application andanswer, and supporting documents, the court may grant or deny relief without furtherproceedings.
Accordingly,
IT IS ORDERED BY THE COURT that petitioner's application for post-convictionrelief and the same if hereby DENIED.
Gretna, Louisiana this 7 day of May, 2015
_______________
JUDGE
PLEASE SERVE:
Defendant Darius Duckett, DOC # 592979, Louisiana State Penitentiary, Angola, LA 70712
Terry Boudreux, District Attorney's Office, 200 Derbigny St., Gretna, LA 70053
Defense Counsel: Robin Schulberg, 18522 Louisiana Tung Road, Covington, LA 70435
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ISSUED W 5/7/15
A-19