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In Brown v. Cain, 2001 WL 96410, *2 (E.D. La. 2001), Judge Charles Schwartz observed that the scope of review afforded a claim seeking federal habeas corpus relief based upon the alleged insufficiency of a state court indictment or bill of information is quite limited.
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CIVIL ACTION NO. 99-2667 SECTION "A"
February 1, 2001
MEMORANDUM OPINION AND ORDER DENYING SECTION 2254 RELIEF
This matter is before the Court on petitioner, Richard Brown's application for habeas corpus relief filed pursuant 28 U.S.C. § 2254. The Report and Recommendation of the United States Magistrate Judge, Louis Moore, dated October 26, 2000 [Fed.Rec.Doc. No. 15], recommends that petitioner's application be denied with prejudice. The Court, now having conducted a careful and thorough de nova review of the report, the petitioner's Motion to Oppose Report [Fed.Rec.Doc. No. 17], the petition, the federal and state records in their entirety, and the applicable law, DENIES petitioner's application for § 2254 relief.
Petitioner, Richard Brown ("Brown"), is a state prisoner presently incarcerated in the Louisiana State Penitentiary, Angola. Brown's incarceration is the result of his conviction, after trial by jury, of second degree murder, in violation of La. R.S. 14:30(A)(2).
State v. Brown, No. 369-646 "E", Criminal District Court for the Parish of Orleans, State of Louisiana, Nov. 7, 1996.
More specifically, petitioner was originally charged in a grand jury indictment with first degree murder. His first and second trials in April of 1995, and June of 1996, respectively, both culminated in hung juries and were declared mistrials. Thereafter on November 6, 1996, Brown's indictment was amended to charge the petitioner with second degree murder. His third trial by jury in November of 1996 resulted in his conviction of the second degree murder of Fay Hicks, when petitioner was engaged in the perpetration of attempted aggravated arson. On November 25, 1996, Brown was sentenced to serve life imprisonment without the benefit of parole, probation or suspension of sentence.
Brown asserts numerous arguments in support of his application for writ of habeas corpus under 28 U.S.C. § 2254 that have been thoroughly addressed by the Magistrate Judge in his Report entered October 27, 2000 [Fed.Rec.Doc. No. 15], which the Court adopts and incorporates by reference as part of its opinion in this matter.
However, the Court, having conducted a de novo review, will further address the issues with special emphasis given the arguments raised in petitioner's Motion to Oppose the Magistrate Judge's Report. At the outset, the Court rejects petitioner's premise "it is not the province of a criminal court anywhere in the United States . . . to be a setting to settle a dispute of whether a crime has been perpetrated." Indeed, the finding of guilt or innocence of an accused concomitantly presumes findings by the trier of fact that each and every element of the offense or crime which is the subject of the trial was committed by the accused.
Petitioner's Motion to Oppose Report and Recommendations by U.S. Magistrate Judge, at p. 3 [Fed.Rec.Doc. No. 17]
Secondly, the law of the Fifth Circuit and other Circuits, does not support petitioner's faulty premise gleaned from a handbook on arson that circumstantial evidence is insufficient to support a jury conviction for second degree felony-murder (arson/murder)
In Schrader v. Whitley, 904 F.2d 282 (5th Cir. 1990), the defendant petitioned for writ of habeas corpus after he was convicted of manslaughter, in response to a charge of first-degree murder for a killing that occurred in the perpetration of aggravated arson. The Louisiana Supreme Court affirmed his conviction and the federal district court denied Schrader's petition for habeas relief. The Fifth Circuit Court of Appeals, Alvin B. Rubin, Circuit Judge held that there was sufficient circumstantial evidence to prove both that the fire was intentionally set and to connect the defendant to the set fire. See also United States v. Corona, 108 F.3d 565, 576 (5th Cir. 1997) (upholding arson and other convictions on circumstantial evidence); United States v. Ruiz, 105 F.3d 1492, 1498-1501 (1st Cir. 1997) (upholding arson and conspiracy convictions on circumstantial evidence, including the likelihood that the defendants were lying); and United States v. Utter, 97 F.3d 509, 512 (11th Cir. 1996) (finding the evidence of arson sufficient where the evidence showed that the fire was intentional, that the defendant had a motive, and that the defendant had talked about setting the property on fire).
Although the Fifth Circuit was not particularly impressed with either the State's or the defense's expert witnesses, it concluded that jury had the sole responsibility to judge the credibility of witnesses. Schrader, 904 F.2d at 287. Applying the Jackson standard to the circumstantial evidence in the case, the Fifth Circuit stated, "we cannot conclude that `no rational finder of fact could have found proof of guilt beyond a reasonable doubt.'" Id. Most noteworthy is the law of the Fifth Circuit to the effect that either direct or circumstantial evidence can contribute to the sufficiency of the evidence and that the circumstantial evidence in the Schrader case was sufficient. Id. The Schrader court stated:
The circumstantial case against Schrader can be summarized as follows: (1) the fire at his house was intentionally set by use of an accelerant, which may have been gasoline; (2) Schrader had twice threatened to burn down his house on that very day; (3) that evening, at a time when he claimed to have been ensconced on a boat, he had purchased a small amount of gas and placed it in a gasoline can. Either direct or circumstantial evidence can contribute to the sufficiency of the evidence underlying the conviction, and we conclude that the circumstantial evidence against Schrader was sufficient to satisfy the Jackson test. 904 F.2d at 287 (emphasis added).
The Court now turns to the petitioner's assertion that the holdings Russell v. United States and Jones v. United States control the issue of sufficiency of the indictment and that the Magistrate Judge incorrectly applied the Jackson v. Virginia standard to his § 2254 challenge to the sufficiency evidence adduced during his state court trial for second degree murder.
369 U.S. 749, 82 S.Ct. 1038, 8 L.Ed.2d 240 (1962)
119 S.Ct. 1215 (1999)
443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979)
Neither, Jones v. United States, nor Russell v. United States, supra, were § 2254 cases, but rather involved appeals of federal convictions and do not control the disposition of the instant matter. Most recently in Lockett v. Anderson, 230 F.3d 695 (5th Cir. 2000), the Fifth Circuit has, both post-Jones and post- Russell, reiterated the rule of this circuit regarding the standard applicable to Section 2254 applications squarely presenting the issue of sufficiency of the indictment, to wit:
In Jones, the Supreme Court construed 18 U.S.C. § 2119, the federal car-jacking statute, as creating three separate offenses. The statute provides that when a person takes a motor vehicle by force while possessing a firearm, the punishment is (1) not more than 15 years if the victim suffered no serious bodily injury; (2) not more than 25 years if he suffered serious bodily injury; and (3) not more than life imprisonment if he died as a result of carjacking. The Court rejected the government's contention that § 2119 be read to create one offense with three separate punishments and held that "under the Due Process Clause of the Fifth Amendment and the notice and jury trial guarantees of the Sixth Amendment, any fact (other than prior conviction) that increases the maximum penalty for a crime must be charged in an indictment, submitted to the jury, and proven beyond a reasonable doubt." 119 S.Ct. at 1224 n. 6. The defendant in Jones was indicted and convicted under § 2119, but at trial no evidence regarding injury to the victims was produced. At sentencing, however, the court found that the defendant had indeed caused serious bodily injury, pursuant to the second subsection of § 2119, and sentenced him to twenty-five years. To avoid constitutional concerns, the Court construed the separate subsection creating serious punishments for causing "serious bodily injuries" to constitute a separate and independent offense. In so doing, the Court held that the question whether the defendant caused serious bodily injury must be determined by the jury.
The Russell decision does stand for the proposition that as to a federal conviction a bill of particulars cannot suffice to cure an indictment that fails to allege an essential element of the charge. Russell v United States, 369 U.S. 749, 82 S.Ct. 1038, 1050. 8 L.Ed. 240 (1962) (The defendant in a criminal case is entitled to have an adequately informed grand jury return the indictment and not to have an indictment effectively rewritten by the prosecutor.)
The rule in our circuit is that "[w]hen it appears . . . that the sufficiency of the indictment was squarely presented to the highest court of the state on appeal, and the court held that the trial court had jurisdiction over the case, the issue is foreclosed to a federal habeas court." Murphy v. Beto, 416 F.2d 98, 100 (5th Cir. 1969). See also Alexander v. McCotter, 775 F.2d 595, 598 (5th Cir. 1985). ("[T]he sufficiency of a state indictment is not a matter for federal habeas corpus review unless it can be shown that the indictment is so defective that the convicting court had no jurisdiction.")Id. at 702.
In Lockett, the Fifth Circuit reversed the federal district court's order granting habeas relief as to both of petitioner's murder convictions and death sentences, and held that the petitioner's indictments sufficiently alleged the essential elements of the crime of capital murder, given the state supreme court's holding that any failings of the indictments was not jurisdictional, inter alia. 230 F.3d at 705-706. The federal district court's ruling, later vacated by the Fifth Circuit, was that indictments against Lockett for the murders of Mr. and Mrs. Calhoun were fatally defective as a matter of state law for failure to state with specificity the underlying crime upon which the capital murders were predicated. More to the point, the federal district court erroneously vacated Lockett's murder convictions and sentence on the basis of the Mississippi Supreme Court's decision in State v. Berryhill, 703 So.2d 250 (Miss. 1997), issued nine years after Lockett's trial applying it retroactively. The federal district court concluded that the indictments were fatally infirm because of their failure to set forth the elements of the burglary offense on which the capital murder charge was based.
Therefore, even assuming petitioner in the case at bar was correct in his assessment of the amended indictment under which he was convicted, and he is not, his victory would be a hollow one. The sufficiency of a state court indictment is cognizable on federal habeas corpus only if the indictment was so flawed that the state court was deprived of jurisdiction. Id. In other words, if the state courts had jurisdiction under the indictment to hear the case against petitioner, this Court does not have jurisdiction to consider the sufficiency of that indictment under the law applicable to habeas corpus proceedings.
See also Heath v. Jones, 863 815, 821 (11th Cir. 1989); and Murphy v. Beto, 416 F.2d 98 (5th Cir. 1969).
Additionally, the question of whether the state courts had jurisdiction is one for those courts. "[J]urisdiction to try an offense includes jurisdiction to determine whether the offense is properly charged."
Murphy v. Beto, 416 F.2d 98, 100 (5th Cir. 1969).
Petitioner's challenges to the sufficiency of the indictment were squarely presented to both the Fourth Circuit Court of Appeals and the Louisiana Supreme Court. That the Louisiana Supreme Court did not comment, expand or further discuss this issue which was addressed by the Louisiana Fourth Circuit Court of Appeals is of no moment. The Louisiana Supreme Court's denial of writs sufficiently forecloses further review by this Court.
See Alexander v. McCotter, 775 F.2d 595 (5th Cir. 1985) (Where the Texas Court of Criminal Appeals, the highest criminal court in Texas, both refused discretionary review and denied a petition for a state writ of habeas corpus in which the sufficiency of indictment claims were presented, without expressly commenting or ruling on the alleged deficiencies, that court necessarily held that the indictment was sufficient for state jurisdictional purposes.). The Alexander court specifically relied on Murphy v. Beto, supra. The effect of the Murphy line of cases essentially is to remove from a federal habeas court the power to even consider claims that a state prisoner was convicted on a fatally defective indictment. If the defective indictment at issue was not presented to the state's highest court, the federal habeas court is precluded from review on the grounds of procedural default. If the defective indictment was unsuccessfully argued to the state's highest court, the federal habeas court is precluded from disturbing that court's finding that jurisdiction existed.
Although the federal district court is not authorized to review the sufficiency of the indictment as a charging instrument, it is bound to consider whether the notice afforded the petitioner through the state procedures was constitutionally sufficient under the Sixth and Fourteenth Amendments. The law is well-settled that the federal guarantee of a grand jury indictment has not been applied to the states.
Branzburg v. Hayes, 408 U.S. 665, 92 S.Ct. 2646, 33 L.Ed.2d (1972).
The Due Process Clause of the Fourteenth Amendment, however, does require that whatever the charging method the state chooses to employ, it must give the criminal defendant fair notice of the charges against him to permit adequate preparation of his defense. In Liner v. Phelps, 731 F.2d 1201 (5th Cir. 1984), the petitioner's challenge to the validity of his Louisiana conviction for first degree murder was predicated solely on the alleged defectiveness of the wording of the indictment. The Louisiana Supreme Court had reversed that state trial court's ruling quashing the indictment against Liner, stating that the indictment was not defective since it conformed with the Louisiana Code of Criminal Procedure, article 465, which allowed this character of short form indictment for first degree murder. See State v. Liner, 373 So.2d 121 (La. 1979) In Liner, petitioner contended in his habeas application that the short form indictment subjected him to a meaningless accusatory process, notwithstanding his adequate notice of the circumstances relied upon by the state through a full bill of particulars furnished prior to trial. The Fifth Circuit rejected his contentions pointing out that there is no federal constitutional right to an indictment before trial and no federal constitutional right to a grand jury in a state criminal action.
Jackson v. Virginia, 443 U.S. 307, 314, 99 S.Ct. 2781, 2786, 61 L.Ed.2d 560 (1979); Faretta v. California, 422 U.S. 806, 818, 95 S.Ct. 2525, 2532, 45 L.Ed.2d (1972); Cole v. Arkansas, 333 U.S. 196, 201, 68 S.Ct. 514, 517, 92 L.Ed.2d 644 (1948).
The instant case is even stronger. Brown had two prior prosecutions which culminated in hung juries prior to the jury trial which resulted in the subject second degree murder conviction. Considering the complete record in this matter any contention along the lines of inadequate notice of the State's charges is patently frivolous. A full and fair review of the entirety of the State Record in the case a bar admits no conclusion other than that prior to trial, Brown was made well-aware of the circumstances upon which the State prosecutor would rely to obtain petitioner's second degree murder conviction. The jury was instructed on the Louisiana law pertaining to aggravated arson and felony-murder (i.e., second degree murder). The jury convicted Brown of second degree murder.
Liner v. Phelps, 731 F.2d 1201, 1203-04 (5th Cir. 1984) (citing Hurtado v. California, 110 U.S. 516, 4 S.Ct. 111, 28 L.Ed. 232 (1884) and Alexander v. Louisiana, 405 U.S. 625, 92 S.Ct. 1221, 31 L.Ed.2d 536 (1972)). In Louisiana, "the accused's constitutional right to notice of the charge brought against him can be satisfied by the availability of other means of obtaining notice of the factual or legal basis of the charge against him, such as a bill of particulars, a preliminary examination and criminal pre-tial discovery." Dowell v. Lensing, 805 F. Supp. 1335, 1343 (M.D. La. 1992), aff'd, 996 F.2d 306 (5th Cir. 1993), cert. denied, 114 S.Ct. 608, 126 L.Ed.2d 573 (1993).
The State's Answer to Brown's Motion for a Bill of Particulars, and Discovery Inspection in the case at bar provides the following at Item 6:
"6. Pursuant to La. Code of Crim. Proc. Art. 905.4, the State alleges the following aggravating circumstances: (1) The offender was engaged in the perpetration or attempted perpetration of aggravated arson; (2) The offender knowingly created a risk of death to more than one person; and (3) The offense was committed in an especially heinous, atrocious, or cruel manner."
See State Record, Vol. 3 of 4, at p. 372.
The Louisiana Fourth Circuit Court of Appeal specifically addressed the issue of sufficiency of the amended indictment finding that petitioner had fair notice through the State's response to Brown's Bill of Particulars, which response adequately informed the defendant that perpetration of or attempted perpetration of aggravated arson was the underlying offense supporting the amended charge of second degree murder.
See State v. Brown, No. 97-KA-0246, pages 11-12 (unpublished opinion) (State Record, Volume 6 of 7).
Petitioner's tirade on page 20 of his Motion to Oppose the Magistrate Judge's Report regarding an alleged substantial due process violation resulting from the "murder only indictment" finds no support in the record. As the argument goes, petitioner submits the State purposefully failed to charge arson-murder in the amended indictment. Brown surmises that the reason for leaving arson out of the amended indicted was that the State knew that if it placed arson in the amended indictment, the jury would have to be instructed on the law of aggravated arson, and that if the jury were so instructed, it would have easily discerned that the State had no evidence of arson.
See Petitioner's Motion to Oppose the U.S. Magistrate Judge's Report at p. 12.
It is evident to the Court that petitioner has failed to review the transcript of trial contained in the State Record at Volume 5 of 7. The jury was specifically given thorough and complete instructions on the applicable law, that is, both Aggravated Arson and Felony-Murder, inter alia. Petitioner's arguments regarding defective deliberations and consequently, a defective verdict, all on account of an allegedly defective indictment, finds no support in the record. Insofar as felony-murder (arson/murder) is concerned, the jury in Brown's arson/murder (second degree murder) trial was dealing with a full deck, both when it came to the facts and to the applicable law.
See State Trial Court's Instructions on the Law, State Record, vol. 5 of 7, at pp. 304-5.
The Court now addresses petitioner's arguments insofar as they relate to the sufficiency of the evidence. The thrust of petitioner's objections are that both the state court and the Magistrate Judge incorrectly applied the Jackson v. Virginia standard to determine the sufficiency of the evidence to support his second degree murder conviction. In arguing insufficiency of the evidence, Brown claims that the Jackson v. Virginia standard should not be applied to determine whether the crime of arson was committed in the first instance, and that the Jackson standard only governs sufficiency of the evidence as to the perpetrator's guilt or innocence. Petitioner cites no legal authority for that proposition and that is because there is none. In fact, the law is quite to the opposite effect.
See Court's discussion at Note 3, supra, regarding the Fifth Circuit's Schrader decision, wherein the court applied the Jackson standard and determined that the circumstantial evidence of arson against the defendant was sufficient. Schrader, 904 F.2d at 287.
Brown's only authority is a publication entitled, "Arson-A Handbook of Detection and Investigation, by Brendan P. Battle and Paul B. Weston, Arco Publishing Company, Inc., . . .," which is cited for the proposition that "it is a rule of law in regard to arson that every fire is presumed to be of accidental origin" and that "this presumption must be overcome before an arson charge can be established." Brown argues, based on the foregoing, that the testimony of the State's cause and origin expert, Agent Springer, should have been ignored as a matter of law and that there was insufficient evidence that the fire at the 201 South Gayoso Street apartment building was intentionally set.
Petitiner's Objections to the Magistrate Judge's Report, at p. 8.
Id.
Id.
Petitioner attempts to convince the Court that the fact of whether the crime of arson was committed requires proof by concrete or physical evidence, unlike the factual of issue of guilt or innocence of the perpetrator, which may be inferred from circumstantial evidence. Petitioner submits that "the perpetration of a crime and the perpetrator of it are two completely separate issues that are established by different and independent evidence and must be judged by different standards of review."
Id. at 11-12.
The Court disagrees with petitioner on the basis of previously cited and discussed Fifth Circuit cases, which is the law which is applicable to petitioner's Section 2254 habeas claim.
See Court's discussion and cases cited at Notes 3 and 19, supra.
Also, under Brown v. Collins, 937 F.2d 175, 181 (5th Cir. 1991), the Court's review for constitutional sufficiency should ask whether the evidence was constitutionally sufficient to convict petitioner of the crime charged, (i.e., second degree murder).
Revised Statute 14:30.1(A)(2) defines second degree murder, in pertinent part as follows: A. Second degree murder is the killing of a human being: (2) when the offender is engaged in the perpetration or attempted perpetration of . . . aggravated arson . . ., even though he has no intent to kill or inflict great bodily harm. La. R.S. 14:51 states that aggravated arson is the intentional damaging by any explosive substance or the setting fire to any structure, watercraft, or movable whereby it is foreseeable that human life might be endangered.
Explicit reference to the substantive elements of the criminal offense at issue (i.e., (1) killing of a human being; (2) when the offender is engaged in the perpetration or attempted perpetration of aggravated arson), reveal that the state produced sufficient evidence to convict Brown of Second Degree/Arson-Murder.
The State established at trial that Brown was one of a number of tenants that occupied the rooming house at 201 South Gayoso Street. A number of witnesses testified that Richard Brown threatened to burn the place down during the days leading up to and including the date and time of the fire in question. The evidence adduced was that the day of the 201 S. Gayoso Street fire, Brown twice warned another tenant, Roy McCray, to get his stuff and get out because he was burning the place down that night. Kesha Key and Roy McCray testified that they saw the fire in Brown's room. The testimony of another tenant, Ulyssis Branch, was that he heard Brown threaten to burn the place down and shoot everyone as they ran out of the building. The testimony of the firemen established that another tenant, Faye Hicks, perished in fire that night at 201 South Gayoso.
Kesha Key, a resident of a building directly across the street from Brown's apartment, testified that she looked down from her apartment across the street into Brown's apartment and saw flames and then within seconds the whole Cleveland side wall of Brown's apartment went up in flames.
Roy McCray testified that on the night of the fire he heard Brown's door slam open and Brown's announcement, "You better get up; I just lit this M.F. on fire!" McCray testified that he got up, walked down the hallway, looked in Brown's room and saw a flame on the floor and the whole wall on the Cleveland St. side engulfed.
The only fire cause and origin expert that testified at trial was the State's witness, Agent Springer. He testified that in his opinion the fire was arson, an intentionally set fire. In this vein, Agent Springer testified that the burn pattern coming out the third window from the front of the structure, on the ground floor, led him to investigate that room from the inside. According to Agent Springer, that room (i.e., Brown's room number 9) was the most heavily damaged room on the ground floor. Agent Springer testified that the ceiling and walls were heavily burned, had collapsed and that there was much more intense burning of the contents in that room than any other on the ground floor.
Agent Springer testified that he is a Special Agent with the BATF, and a Certified Fire Investigator employed primarily to investigate the cause and origin of fires. He further testified that he along with ATF agents, Robert Shaw, Robert Jamison and Patricia Robinson arrived on the scene to investigate the 201 South Gayoso Street fire at about ten o'clock on March 10, 1994.
As to cause, Springer systematically ruled out electrical, discarded smoking material, and/or gas line involvement. Agent Springer testified that witnesses' testimony regarding the observation of a small fire in Room Nine and then, within minutes a conflagration, is consistent with his opinion that the fire was intentionally set in that room.
It is noteworthy that Agent Springer's testimony was unwavering regarding his opinion that the fire was intentionally set (i.e., arson). As to the modification of his first impression regarding a second place of origin in the hallway at the base of the stairwell, Agent Springer explained that he later ruled out the second point of origin on the basis of a witness' testimony of which he was not aware of at the time he issued his report. He further explained the heavy damage there in the hallway at the base of the stairwell was most probably the result of increased oxygen in the area of the stairwell since it opened up to another source of oxygen on the second floor.
This Court concludes, as did the Magistrate Judge, and the Louisiana courts, that the record properly viewed in the light most favorable to the prosecution, contains sufficient evidence to support Brown's jury conviction of second degree murder. A fair inference and in fact, the most likely, from all of the evidence adduced at trial, was that Brown set the fire in his apartment at 201 South Gayoso Street, which building was inhabited by approximately 29 other tenants, and but for the fact that he proclaimed the fact that he had set the fire to another tenant on the first floor on his way out of the building that night, probably more than one tenant (i.e., more than just Fay Hicks), would have perished in the intentionally set blaze.
As to Agent Springer's modified opinion during Brown's third prosecution for second degree murder, regarding one, as opposed to two, points of origin, the jury was exposed to both versions of Agent Springer's testimony. Agent Springer was subjected to vigorous cross-examination on that issue by defense counsel, Frank Larre. As previously mentioned, the expert's testimony was unwavering throughout all three prosecutions that the 201 South Gayoso Street blaze was an intentionally set fire. The only permutation came during the third trial when Springer changed his opinion to one point of origin, Brown's room number 9.
Apparently, the attempt to discredit Agent Springer's testimony during the third trial, with his prior testimony regarding two points of origin, was not successful.
A federal court may not substitute its own judgment regarding the credibility of witnesses for that of the state courts. This Court's complete review of and familiarity with the State record, the transcript of trial, and necessarily, the theory of the defense, admits the conclusions that the defendant was fully aware of the acts/elements that necessarily comprise the crime of felony (arson) /murder under Louisiana's second degree murder statute and that the state presented sufficient evidence as to each and every element. Moreover, contrary to Brown's assertions, the jury was instructed on the law of arson and felony-murder, inter alia.
Marler v. Blackburn, 777 F.2d 1007, 1011 (5th Cir. 1985); Dunn v. Maggio, 712 F.2d 998, 1001 (5th Cir. 1983), cert. denied, 465 U.S. 1031, 104 S.Ct. 1297 (1984).
The plethora of evidence established that petitioner foretold his plan to set the building ablaze on numerous occasions in the weeks preceding the blaze and announced the fact that he had in fact set the building afire to other tenants immediately after setting the blaze in his room. Also there was evidence regarding petitioner's return to the scene after the building was ablaze, toting and firing a gun as foretold, which the petitioner did not refute. To be successful petitioner's defense would have required the jury to make a series of improbable inferences from the basic facts, to be convinced that all of the State's witnesses lied and that Brown was the only one telling the truth. According to Brown, he was simply a "druggie," minding his own business, with absolutely no interest in getting back at his landlady and fellow tenants after having received a notice of eviction from the apartment building.
Brown has not advanced any compelling argument why his case falls outside the standard established in Jackson v. Virginia. His argument that the prosecution was under some affirmative duty to rule out every possible hypothesis except that of guilt beyond a reasonable doubt is preposterous. The Supreme Court in Jackson v. Virginia, specifically rejected that contention, stating:
Only under a theory that the prosecution was under an affirmative duty to rule out every hypothesis except that of guilt beyond a reasonable doubt could petitioner's challenge be sustained. That theory the Court has rejected in the past. Holland v. United States, 348 U.S. 121, 140, 75 S.Ct. 127, 137, 99 L.Ed. 150. We decline to adopt it today. Under the standard established in this opinion as necessary to preserve the due process protection recognized in Winship, a federal habeas corpus court faced with a record of historical facts that supports conflicting inferences must presume — even if does not affirmatively appear in the record — that the trier of fact resolved any such conflicts in favor of the prosecution, and must defer to that resolution.
The Magistrate Judge correctly noted that Brown's exhausted claims of ineffective assistance relative to his failure to quash the indictment hinge, for any validity, on the resolution of the claims regarding insufficiency of the indictment and insufficiency of the evidence. Petitioner cannot show the requisite deficient conduct under Strickland. Also, as to petitioner's unexhausted ineffective assistance claims 3 and 4 (i.e., that counsel failed to argue insufficiency of the evidence and to subject the prosecutor's case to true adversarial testing), the Magistrate Judge correctly concluded that these bald assertions simply find no support in the record. The record demonstrates the contrary, that the defense counsel vigorously attacked the sufficiency of the evidence in his closing argument and throughout the trial in his cross-examination of various witnesses, including Agent Springer.
Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674.
Accordingly, and for all of the above and foregoing reasons including those discussed in the Magistrate Judge's Report [Fed.Rec.Doc. No. 15] which is adopted and incorporated herein by reference,
IT IS ORDERED that petitioner's application for habeas corpus relief pursuant to Title 28, United States Code, Section 2254, is hereby DENIED his application is DISMISSED WITH PREJUDICE.