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noting "the court has found that the comparison of fingerprints from prior arrests to later offenses is valid for the purposes of sentencing."
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Civil Action No. 03-3375 Section: "C".
June 30, 2005
Order and Reasons
Pursuant to 28 U.S.C. § 2254, petitioner, Roosevelt Dedmond, filed this petition for habeas corpus seeking relief from his 1998 conviction and the resulting life sentence. As grounds for relief, petitioner asserts the following: (1) he was convicted on insufficient evidence; (2) his sentence was excessive; (3) there was insufficient evidence presented during his habitual offender proceedings to establish him as a habitual offender; (4) inadmissible evidence was adduced during habitual offender proceedings; and (5) his counsel was ineffective for failing to object to the use of inadmissible evidence during the habitual offender proceeding. Having reviewed the records, the memoranda, and the applicable law, this Court finds that the record is sufficient and that an evidentiary hearing is unnecessary. For the reasons set forth as follows, petitioner's claim is DENIED.
Following a jury trial, petitioner was found guilty of distribution of cocaine in violation of LA.REV.STAT. ANN. § 40:967. After a multiple bill hearing on January 28, 1998, he was sentenced under the Louisiana Habitual Offender Statute, LA.REV.STAT. ANN. § 15:529, to life imprisonment without benefit of parole, probation, or suspension of sentence in the Orleans Parish Criminal District Court on July 8, 1998. (State rec. vol. 1 of 2, sent. tr. p. 5). Petitioner is currently incarcerated at the Louisiana State Prison in Angola, Louisiana.
Exhaustion and Timeliness
28 U.S.C. § 2254(b)(1)(a) requires federal habeas corpus petitions to be both exhausted and timely filed. The state does not contend that exhaustion or timeliness are at issue in this case. Having reviewed the record, the Court agrees that the claims have been exhausted in state court and that the petition is timely filed.
As petitioner's claims are exhausted and timely, it is necessary to consider the merits of the claims.
Standard of Review
The 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 law and fact. If 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) while questions of fact are reviewed under § 2254(d)(2). Hill v. Johnson, 210 F.3d 481, 485 (5th Cir. 2000).
When handling questions of law and mixed questions of law and fact, 28 U.S.C. § 2254(d)(1) requires federal courts to defer to the state court's decision unless it "was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States." According to the Supreme Court:
§ 2254(d)(1)'s "contrary to" and "unreasonable application" clauses have independent meaning. A federal habeas court may issue the writ under the "contrary to" clause if the state court applies a rule different from the governing law set forth in our cases, or if it decides a case differently than we have done on a set of materially indistinguishable facts. The court may grant relief under the "unreasonable application" clause if the state court correctly identifies the governing legal principle from our decisions but unreasonably applies it to the facts of the particular case. The focus of the latter inquiry is on whether the state court's application of clearly established federal law is objectively unreasonable, and we stressed in Williams [v. Taylor, 529 U.S. 362, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000)] that an unreasonable application is different from an incorrect one.Bell v. Cone, 535 U.S. 685, 694, 122 S. Ct. 1843, L. Ed. 2d 914 (2002) (citations omitted).
As to questions of fact, 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); see also Hill, 210 F.3d at 485.
Statement of Facts
The Louisiana Fourth Circuit Court of Appeal summarized the facts of the case as follows:
On June 21, 1997, Detective Dennis Bush was operating in an undercover capacity in an attempt to identify narcotics hot spots. At approximately 2:00 a.m., he was in the Treme area. As he passed the intersection of Dumaine and North Robertson, the defendant flagged him down. The defendant told the officer he could get him some rocks. Detective Bush asked the defendant the cost of the cocaine. The defendant indicated the crack cocaine would cost twenty-five dollars. The defendant then told the officer to pull his vehicle to the side. The officer complied with the defendant's request. The defendant then walked towards a black male who gave the defendant a small object. The defendant took the object, which was a rock of crack cocaine, to the detective. After the defendant gave him the crack, the officer gave the defendant twenty-five dollars. The officer left the area after the narcotics transaction.
Detective Bush testified that the defendant was not arrested that morning as the investigation was ongoing. Three days later, on June 24, 1997, Detective Bush saw the defendant at approximately 3:00 p.m. Detective Bush radioed Detective Arthur Powell with instructions to conduct a pedestrian stop of the defendant. Detective Powell stopped the defendant and obtained his personal information. After receiving this Detective Powell, Detective Bush obtained an arrest warrant for the defendant and placed it on a bulletin in the NCIC computer. The defendant was ultimately arrested by another police officer. Detective Bush identified the defendant at trial as the person who sold him the narcotics.
Officer John Palm testified at trial that he examined the substance obtained from the defendant. The substance tested positive for cocaine.State v. Dedmond, No. 99-KA-0947, 761 So. 2d 828 (La.App. 4 Cir. 2000) (unpublished).
Insufficient Evidence at Trial
In his first claim, petitioner asserts that there was insufficient evidence to support a conviction for distribution of cocaine. (Rec. memorandum p. 5-9).Petitioner was convicted of distribution of cocaine in violation of LA.REV.STAT. ANN. § 40:967, which requires that the state prove (1) knowledge or intent, (2) to produce, manufacture, distribute, dispense, or possess with the intent to produce, manufacture, distribute, or dispense, (3) a controlled dangerous substance classified under schedule II. LA.REV.STAT. ANN. § 40:967(A)(1). The third element is undisputed in this case. Instead, petitioner argues that the state failed to prove the act of distribution because the state's primary witness, Detective Bush, was not credible. (Rec. memorandum p. 5-9). Specifically, he asserts that Detective Bush's testimony was inconsistent and unbelievable because it indicated that petitioner sold crack cocaine to an individual he knew to be a police officer and because Detective Bush did not sufficiently establish why he failed to immediately arrest the defendant (Rec. memorandum p. 5-9).
A claim of insufficiency of the evidence is reviewed by a habeas court under the due process standard announced by the Supreme Court in Jackson v. Virginia. 443 U.S. 307, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979); Guzman v. Lensing, 934 F.2d 80, 82 (5th Cir. 1991). According to this standard, the reviewing court must determine whether, looking to the elements of the offense as defined by state substantive law and 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. Donahue v. Cain, 231 F.3d 1000, 1004 (5th Cir. 2000).
This Court is required to presume the correctness of a trial court's reasonable findings of fact and may only review those findings petitioner demonstrates by a preponderance of the evidence are unreasonable and unsupported by the trial record. 28 U.S.C. §§ 2254(d)(2); 2254(e). In order to reverse a state court's findings, federal courts must conclude that the state court's findings lacked even "fai[r] support" in the record and cannot reverse simply because they disagree with the state court's factual determinations.Marshall v. Lonberger, 459 U.S. 422, 432, 103 S. Ct. 843, L.Ed. 2d 646 (1983); see also Jackson, 443 U.S. at 319 (holding that the jury's findings on an issue of fact will be upset only where necessary to preserve the "fundamental protection of due process of law").
When considering the credibility of witnesses, in particular, "a reviewing court is not called upon to decide whether it believes the witnesses or whether the conviction is contrary to the weight of the evidence." State v. Smith, 600 So. 2d 1319, 1324 (La. 1992); State v. Rosiere, 488 So. 2d 965, 968 (La. 1986). Thus, in the absence of internal contradiction or irreconcilable conflict with physical evidence, if the trier of fact believed the testimony, one witness's testimony is sufficient support for a requisite factual conclusion. State v. Allen, 661 So. 2d 1078, 1084 (La.App. 4 Cir. 1995), writ denied, 666 So. 2d 1087 (La. 1996); see also State v. Minnifield, 727 So. 2d 1207, 1210 (La.App. 2 Cir. 1999) (finding testimony of officer sufficient to prove guilt).
At trial, Detective Bush testified that he had been a police officer with the New Orleans Police Department for six years and that he had been assigned to the Narcotics district for three of those years. (State rec. vol. 1 of 2, trial tr. p. 4-5). He further testified that while he was working undercover, petitioner, whom he recognized from his previous work in the area, sold him a rock of cocaine for twenty-five dollars. (State rec. vol. 1 of 2, trial tr. p. 6-7). Detective Bush did not testify as to whether the petitioner recognized him. (State rec. vol. 1 of 2, trial tr.). Detective Bush also stated that he did not immediately arrest petitioner because he was undercover and did not want to jeopardize the investigation. (State rec. vol. 1 of 2, trial tr. p. 12). Petitioner offered no evidence indicting the witness's credibility or directly contradicting it. (State rec. vol. 1 of 2, trial tr.).
In its review of the case, the Louisiana Fourth Circuit Court of Appeal looked at the evidence presented and found it sufficient to establish the elements of the crime. In particular, the judge noted "that the defendant possessed the cocaine and actually distributed it to the officer" and that "[d]efendant's action of selling the cocaine to the officer reveals an intent to distribute cocaine." State v. Dedmond, No. 99-KA-0947, 761 So. 2d 828 (La.App. 4 Cir. 2000) (unpublished). The Louisiana Fourth Circuit Court of Appeal did not directly evaluate the witness's credibility, but as the jury found Detective Bush's testimony credible and there is no contradictory evidence in the record, the court did not have legal ground to reevaluate the witness's credibility. See Allen, 661 So. 2d at 1084. The Louisiana Fourth Circuit Court of Appeal's determination was, therefore, reasonable and fairly supported by the record. Accordingly, this Court rejects petitioner's claim that there was insufficient evidence to sustain his conviction.
Insufficient Evidence at the Multiple Bill Hearing
In his third claim, petitioner asserts another insufficient evidence argument regarding the evidence used to adduce his status as a third time offender. Petitioner argues that the state failed to introduce sufficient evidence to prove his status as a habitual offender because the state could not establish that the fingerprints on one of the plea forms belonged to the petitioner. (Rec. memorandum, p. 11-13).
In order to prove habitual offender status, the state must present competent evidence of the predicate offenses relied upon in the multiple offender bill of information. Ford v. Cain, 2004 WL 2998560, *6 (5th Cir. 2004); State v. Chaney, 423 So. 2d 1092, 1103 (La. 1982), reh'g denied (La. 1983). The state is further required to present evidence that the defendant is the same person convicted of the prior felonies. State v. Hawthorne, 580 So. 2d 1131, 1133 (La.App. 4 Cir. 1991).
In this case, the state's proof of prior convictions consisted of plea forms containing guilty pleas and transcripts of the guilty plea colloquies from the previous offenses. State v. Dedmond, No. 99-KA-0947, 761 So. 2d 828 (La.App. 4 Cir. 2000) (unpublished). When guilty pleas are used to establish prior convictions, the state must show that the defendant was advised of his constitutional rights and that he knowingly waived those rights prior to pleading guilty. Boykin v. Alabama, 395 U.S. 238, 89 S. Ct. 1709, 23 L. Ed. 2d 274 (1969); State v. Richardson, 896 So. 2d 257, 266-67 (La.App. 2 Cir. 2005). Because the guilty plea colloquies are not included in the record, it is not possible to review them. However, as the Louisiana Fourth Circuit Court of Appeal noted in its opinion, the trial court apparently reviewed the colloquies specifically for adherence to the Boykin requirements and found them sufficient to establish that the guilty pleas were knowingly and voluntarily made. State v. Dedmond, No. 99-KA-0947, 761 So. 2d 828 (La.App. 4 Cir. 2000) (unpublished); (MB tr. p. 6-7). Petitioner has not offered any affirmative evidence showing an infringement of his rights or procedural irregularity and Louisiana courts have previously accepted the trial court's findings that the Boykin requirements were satisfied in the absence of such a showing. See Richardson, 896 So. 2d at 267. Consequently, this Court finds that the state met its initial burden in establishing the previous convictions.
When proving that the defendant on trial is the same person convicted of the previous offense, Louisiana law does not specify a particular method. Instead, the state may make such a showing in a variety of ways, including "by testimony of witnesses, by expert opinion as to the fingerprints of the accused when compared with those of the person previously convicted, by photographs contained in a duly authenticated record, or by evidence of identical driver's license number, sex, race, and date of birth." State v. Henry, 709 So. 2d 322, 325 (La.App. 4 Cir. 1998); State v. Neville, 695 So. 2d 534 (La.App. 4 Cir. 1997), writ denied, 704 So. 2d 1180 (La. 1997) (find the comparison of biographical information from arrest registers to petitioner's biographical information sufficient to establish identity). Of particular relevance to this case, the court has found that the comparison of fingerprints from prior arrests to later offenses is valid for the purposes of sentencing. Baker v. Cain, 2005 WL 578783, *4 (E.D. La. 2005) (quoting State v. Baker, 776 So. 2d 1212, 1217 (La.App. 5 Cir. 2000)); State v. Richmond, 734 So. 2d 33, 37 (La.App. 5 Cir. 1999); State v. Bell, 709 So. 2d 921, 926 (La.App. 5 Cir. 1998). The state's latitude is not without limit. Merely establishing that the defendant bears the same name as the person previously convicted is not considered sufficient evidence of identity. State v. Curtis, 338 So. 2d 662 (La. 1976).
In the case at hand, the state filed a multiple offender bill of information showing that in addition to petitioner's conviction for distribution of cocaine, he had a 1989 simple burglary conviction and a 1994 felony theft conviction. (State rec. vol. 1 of 2, MB of info.). In order to establish that petitioner was the same person who committed the prior felonies, the state offered petitioner's fingerprints taken in court (exhibit 1), two arrest registers containing fingerprints (exhibits 2 and 4), and two bills of information with fingerprints attached to the plea forms for both of the predicate offenses (exhibits 3 and 5). (State rec. vol. 1 of 2, MB tr. p. 4-5). The fingerprints contained in the arrest registers matched petitioner's, but the state's fingerprint expert, Lawrence James, was not able to establish that the fingerprints contained in the bill of information for the 1989 simple burglary conviction matched petitioner's fingerprints. (State rec. vol. 1 of 2, MB tr. p. 4-5). Nevertheless, the state was able to show that the same identifying information was contained in the 1989 bill of information packet and the 1989 arrest register. (State rec. vol. 1 of 2, MB tr. p. 5).
Based on the evidence presented at the multiple bill hearing and the Louisiana courts previous acceptance of such evidence, the record fairly supports the state court's finding that petitioner was a multiple offender. This Court, therefore, also rejects petitioner's second insufficient evidence argument.
Excessive Sentence
In his second claim, petitioner asserts that his life sentence was unconstitutionally excessive in violation of the Eighth Amendment's cruel and unusual punishment clause. (Rec. memorandum p. 9). Specifically, petitioner argues that the sentencing judge did not believe that he could deviate from the statute when he sentenced petitioner and that the sentencing court's failure to properly exercise its discretion resulted in a disproportionate sentence. (Rec. memorandum p. 9). In support of his argument petitioner notes that his predicate offenses were not for drug-related crimes and that recent changes to the Louisiana Habitual Offender Statute justify a reduction (Rec. memorandum p. 9-10).
"Although wide discretion is accorded a state district judge's sentencing decision and claims arising out of that decision are not generally constitutionally cognizable, relief may be required where the petitioner is able to show that the sentence imposed exceeds or is outside the statutory limits, or is wholly unauthorized by law." Haynes v. Butler, 825 F.2d 921, 923-24 (5th Cir. 1987), cert. denied, 484 U.S. 1014, 108 S. Ct. 717, 98 L. Ed. 2d 667 (1988); Ford v. Cain, 2004 WL 2998560, *7 (5th Cir. 2004). Even when a sentence is within statutory limits, it may still be unconstitutional if is grossly disproportionate to the crime or resulted from "a sentencing decision was wholly devoid of discretion or amounted to an 'arbitrary or capricious abuse of discretion,' . . . or that an error of law resulted in the improper exercise of the sentencer's discretion and thereby deprived the petitioner of his liberty." Hines v. State, 102 F. Supp. 2d 690, 698 (E.D. La. 2000) (quoting Haynes, 825 F.2d at 924).
In this case, petitioner's sentence falls within the statutory limit. The version of Louisiana's Habitual Offender Law in place at the time petitioner committed and sentenced his crime provided as follows:
(ii) If the third felony or either of the two prior felonies is a felony defined as a crime of violence under R.S. 14:2(13) or as a violation of the Uniform Controlled Dangerous Substances Law punishable by imprisonment for more than five years or any other crime punishable by imprisonment for more than twelve years, the person shall be imprisoned for the remainder of his natural life, without benefit of parole, probation, or suspension of sentence.
LA.REV.STAT. ANN. § 15.529.1 (West 1996, 1998) (emphasis added).
The predicate offenses used to find petitioner a multiple offender were a 1989 conviction for simple burglary and a 1994 conviction for felony theft. As the conviction for distribution of cocaine violated the Uniform Controlled Dangerous Substances Law, petitioner satisfied the statutory requirements and was sentenced accordingly.
Having established that petitioner's sentence is within statutory limits, this Court further finds that the sentencing court did not abuse its discretion or impose an excessive sentence. To begin with, the record does not support petitioner's assertion that the trial court felt bound by the statute and did not, therefore, fully consider the possibility of deviating from it. (Rec. memorandum p. 9). In fact, the record indicates that the sentencing judge acknowledged that some cases merit deviation from the sentencing statute and explicitly considered whether petitioner's case warranted such deviation. At the outset of the sentencing hearing, for instance, the judge noted:
[T]he sentence must be an automatic life imprisonment sentence unless the Court is convinced under the so-called Dorthey decision, D-O-R-T-H-E-Y, that there is some truly outstanding, extenuating set of circumstances that should justify deviation from the mandated sentence.
(State rec. vol. 1 of 2, sent. tr. p. 2) (emphasis added).
State v. Dorthey set out the requirement that only rare circumstances would justify a downward departure from a mandatory sentence. 623 So. 2d 1276 (La. 1993).
The sentencing judge went on to look at petitioner's record and potential grounds for deviation such as the non-violent nature of the cocaine conviction and the minimal amount of drugs involved. When announcing the sentence, the judge stated:
The Court finds that under this jurisprudence, as well as the additional information regarding the gentleman's record and the most recent conviction for a hand-to-hand sale — I know it's one packet of cocaine, but, nonetheless, distribution of cocaine, that the Court is not allowed, under the present jurisprudence, to deviate under the Dorthey, D-O-R-T-H-E-Y, rule.
(State rec. vol. 1 of 2, sent. tr. p. 2). Based on these statements, it is clear that the sentencing court did not abuse or improperly apply its discretion in violation of federal law.
Nor did the sentencing court impose an excessive sentence given federal and state precedent. When determining whether a sentence is "grossly disproportionate," Fifth Circuit Courts traditionally look to Rummel v. Estelle as a benchmark. 445 U.S. 263, 100 S. Ct. 1133, 63 L. Ed. 2d 382 (1980); State v. Gonzales, 121 F.3d 928, 943 (5th Cir. 1997), cert. denied, 522 U.S. 1063, 118 S. Ct. 726, 139 L. Ed. 2d 664 (1998); Hines, 102 F. Supp. 2d at 698. In Rummel, the Supreme Court upheld a life sentence for a third-felony offender convicted of passing a forged check, fraudulent use of a credit card, and obtaining money by false pretenses. 445 U.S. 263. Compared to Rummel, petitioner's current and predicate offenses are more serious, indicating that his sentence is not contradictory to established federal law.
Petitioner's sentence is also not excessive compared to sentences Louisiana courts have imposed in similar cases. InState v. Harris, for instance, the Louisiana Supreme Court upheld a life sentence for a third felony offender convicted of distribution of cocaine. 839 So. 2d 291 (La.App. 5 Cir. 1/28/03), writ denied, 857 So. 2d 474 (La. 2003). Similarly, in Robinson, the Louisiana Fifth Circuit Court of Appeal upheld a life sentence for a fourth felony offender whose underlying offense was possession of cocaine with intent to distribute and whose previous offenses included only one prior drug offense. 2005 WL 1278172 (La.App. 5 Cir. 2003); see also State v. Jerome, 845 So. 2d 1194, (La.App. 5 Cir. 2003) (upholding defendant's mandatory life sentence as a third felony offender where his underlying conviction was for distribution of cocaine and his predicate offenses were non-violent drug offenses).
Finally, this Court finds the changes in the Louisiana Habitual Offender Statute do not require a finding that petitioner's sentence is excessive. Although the Louisiana Legislature amended LA.REV.STAT. ANN. § 15:529.1 in 2001 so that the offenses contained in petitioner's multiple bill of information would not merit a life-sentence under the current statute, this change does not permit a reduction in sentence. 2001 LA. ACTS 403 § 2. Louisiana courts have considered this argument and have refused to apply the sentence retroactively or find sentences excessive based on the change in law. See Harris, 839 So. 2d 291.
Petitioner would not be subject to a mandatory life sentence under the current version of LA.REV.STAT. ANN. § 15:529.1(A)(1)(b)(ii) because at least one of the predicate offenses contained in the multiple bill would not fall under the statutory requirements. The current version of the law states as follows:
If the third felony and the two prior felonies are felonies defined as a crime of violence under R.S. 14:2(13), a sex offense as defined in R.S. 15:540 et seq. when the victim is under the age of eighteen at the time of commission of the offense, or as a violation of the Uniform Controlled Dangerous Substances Law punishable by imprisonment for ten years or more, or any other crimes punishable by imprisonment for twelve years or more, or any combination of such crimes, the person shall be imprisoned for the remainder of his natural life, without the benefit of parole, probation, or suspension of sentence. (emphasis added).
In light of such precedent and this Court's limited power to review the state court's sentencing determinations, the term imposed in this case is not unconstitutionally excessive or in violation of clearly established federal law. This Court, therefore, rejects petitioner's claim that the trial court imposed an excessive sentence.
Inadmissible Evidence Ineffective Assistance of Counsel
Petitioner's last two claims relate to the allegedly erroneous admission of inadmissible evidence. In his fourth claim, petitioner argues that the documents and testimony used in his multiple offender hearing were inadmissible because they were not properly authenticated and were hearsay. (Rec. memorandum p. 13). While petitioner admits that he did not object to the admittance of the documents during the multiple bill hearing, petitioner's fifth claim avers that he failed to object due to ineffective assistance of counsel.
The Louisiana Supreme Court denied the fourth and fifth claims pursuant to LA. CODE CRIM. PROC. ANN. art. 930.3 and theMelinie case. 665 So. 2d 1172 (La. 1996), reh'g denied, 667 So. 2d 1043 (La. 1996); State ex rel. Dedmond v. Louisiana, No. 2002-KH-3074, 857 So. 2d 511 (La. 2003). InMelinie, the Louisiana Supreme Court established that Article 930.3 sets out the exclusive grounds for granting post-conviction relief and does not permit review of sentencing errors post-conviction. 665 So.2d 1172 (La. 1996), reh'g denied, 667 So. 2d 1043 (La. 1996); Neal v. Kaylo, 2001 U.S. Dist. LEXIS 16608, *11 (E.D. La. 2001). Federal courts generally refuse to review a question of federal law when a state court expressly relies on an adequate and independent state procedural default in refusing to review a claim absent a showing of cause and prejudice or the complete miscarriage of justice. Duncan v. Cain, 278 F.3d 537, 541 (5th Cir. 2002), writ denied, 2002 U.S. LEXIS 6112 (2002); Coleman v. Thompson, 501 U.S. 722, 111 S. Ct. 2546, 115 L.Ed.2d 640 (1991); Wainwright v. Sykes, 433 U.S. 72, 97 S. Ct. 2497, 53 L. Ed. 2d 594 (1977).
LA. CODE CRIM. PROC. ANN. art. 930.3 provides:
If the petitioner is in custody after sentence for conviction for an offense, relief shall be granted only on the following grounds:
(1) The conviction was obtained in violation of the constitution of the United States or the state of Louisiana;
(2) The court exceeded its jurisdiction;
(3) The conviction or sentence subjected him to double jeopardy;
(4) The limitations of the institution of prosecution had expired;
(5) The statute creating the offense for which he was convicted and sentenced is unconstitutional; or
(6) The conviction or sentence constitute the ex post facto application of law in violation of the constitution of the United States or the state of Louisiana.
A state procedural default is "adequate" when it is strictly or regularly followed and "applied evenhandedly to the vast majority of similar claims." Lambas v. Cain, 2001 U.S. Dist. LEXIS 10005, *4 (E.D. La. 2001) (citing Glover v. Cain, 128 F.3d 900, 902 (5th Cir. 1997), cert. denied, 523 U.S. 1125, 118 S. Ct. 1811, 140 L. Ed. 2d 949 (1998) (citing Amos v. Scott, 61 F.3d 333, 338 (5th Cir. 1995), cert. denied, 516 U.S. 1005, 116 S. Ct. 557, 133 L. Ed. 2d 458 (1995)). It is "independent" when the last state court rendering a judgment in the case "clearly and expressly" indicates that its judgment rests on a state procedural bar. Lambas, 2001 U.S. Dist. LEXIS at *3; Amos, 61 F.3d at 338.
The state procedural default relied upon in this case satisfies both requirements. A state procedural rule is presumed adequate when it is directly relied upon by the highest state court in denying a claim, placing the burden to establish that the state's procedural bar rule was not regularly followed at the time of his appeal on the petitioner. Martin v. Maxey, 98 F.3d 844, 847 (5th Cir. 1996) (citing Sones v. Hargett, 61 F.3d 410, 416 (5th Cir. 1995)). A review of the record indicates that Louisiana courts have regularly invoked the statutory procedural bar in combination with the Melinie decision in barring review of post-conviction challenges to multiple offender proceedings.Neal, 2001 U.S. Dist. LEXIS at *13-*14; Chester v. Cain, 2001 U.S. Dist. LEXIS 17223, *18 (E.D. La. 2001). Furthermore, as petitioner has failed to show that it is not applied evenhandedly, this Court finds the procedural default rule relied on in this case adequate. Lambas, 2001 U.S. Dist. LEXIS at *4. Because the Louisiana Supreme Court directly referred to Article 930.3 and the Melinie case when it denied petitioner's application, it is also "independent." State ex rel. Dedmond v. Louisiana, No. 2002-KH-3074, 857 So. 2d 511 (La. 2003).
Once it is established that the state default rule is both adequate and independent, a petitioner must show cause and prejudice or the complete miscarriage of justice. Sykes, 433 U.S. at 87-88. According to the Supreme Court, "cause" is a showing of "some objective factor external to the defense" preventing the petitioner from complying with the state's procedural rule. Hawkins v. Cain, 1999 U.S. Dist. LEXIS 12366, *8 (E.D. La. 1999) (citing Murray v. Carrier, 477 U.S. 478, 488, 106 S. Ct. 2639, 91 L. Ed. 397 (1986)). In this case, petitioner asserts that he had ineffective counsel as "cause" to excuse his failure to comply with the statute. While ineffective assistance of counsel may satisfy "cause," a claim of ineffective assistance of counsel may itself be procedurally barred. Edwards v. Carpenter, 529 U.S. 446, 120 S. Ct. 1587, 146 L. Ed. 2d 518 (2000). This Court appears to have previously relied upon LA. CODE CRIM. PROC. ART. 930.3 as a procedural bar to post-conviction claims arising from sentencing errors, including sentencing-related claims of ineffective assistance of counsel.See Lee v. Cain, 2004 U.S. Dist. LEXIS 25763 (E.D. La. 2004). It is, therefore, questionable whether petitioner's ineffective assistance of counsel claim is sufficient to satisfy "cause."
While the failure to show "cause" alone would bar petitioner from invoking the "cause and prejudice" exception, this Court also finds that petitioner fails to demonstrate "prejudice."Hogue v. Johnson, 131 F.3d 466, 497 (5th Cir. 1997); Sawyer v. Whitley, 505 U.S. 333, 112 S. Ct. 2514, 120 L. Ed. 2d 269 (1992). In order to demonstrate actual prejudice in this case, petitioner would have to show that he would not have been adjudicated a third time offender had his attorney objected to and been able to exclude the allegedly erroneous evidence.Strickland v. Washington, 466 U.S. 668, 694, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). Assuming that the documents were not authenticated — which petitioner merely asserts without offering actual evidence — the state could easily have cured this error by having the documents certified or signed by the appropriate party. Any objection to the evidence would, therefore, be moot. Even if the evidence was excluded, however, the testimony offered at the multiple bill hearing is a sufficient and often used method to establish petitioner's predicate offenses. See Baker v. Cain, 2005 WL 578783, *4 (E.D. La. 2005) (quoting State v. Baker, 776 So.2d 1212, 1217 (La.App. 5 Cir. 2000)) (finding testimony comparing fingerprints from prior arrest records sufficient to prove that the defendant was the person convicted of prior offense); (State rec. vol. 1 of 2, MB tr. p. 3-5);State v. Nicholas, 359 So.2d 965, 968 (La. 1978) (finding state police fingerprint records admissible under "public documents" exception to the rule against hearsay); Baker v. Cain, 2005 WL at *3-4 (finding testimony regarding fingerprints sufficient to establish status as fourth-felony offender); see also State v. Henry, 709 So.2d 322, 326 (La.App. 4 Cir. 3/11/98).
Beyond failing to satisfy the "cause and prejudice" exception, petitioner also fails to establish that a "fundamental miscarriage of justice" would occur if the federal courts refuse to consider his claims. A "fundamental miscarriage of justice" exists where the constitutional violation may have resulted in the conviction of an innocent person. Neal, 2001 U.S. Dist. LEXIS at *15. Petitioner does not contend and has not shown that he is factually innocent of the crime or the prior offenses. Without such a showing, petitioner fails to meet the requirements for the "fundamental miscarriage of justice" exception. Lambas, 2001 U.S. Dist. LEXIS at *5; Montoya v. Collins, 988 F.2d 11, 13 (5th Cir. 1993). As such, this Court dismisses petitioner's inadmissible evidence claim as procedurally barred and his ineffective assistance of counsel claim as without merit.
Conclusion
Although petitioner's claims are timely and exhausted, this Court finds that they either lack merit or are procedurally barred by the state court's express reliance on an adequate and independent state law ground.
Accordingly, IT IS ORDERED that Roosevelt Dedmond's petition for habeas corpus is DENIED WITH PREJUDICE.