Opinion
CIVIL ACTION NO. 04-980, SECTION: "S" (3).
October 17, 2005
REPORT AND RECOMMENDATION
This matter was referred to this United States Magistrate Judge for the purpose of conducting a hearing, including an evidentiary hearing, if necessary, and submission of proposed findings of fact and recommendations for disposition pursuant to 28 U.S.C. § 636(b)(1)(B) and (C) and, as applicable, Rule 8(b) of the Rules Governing Section 2254 Cases in the United States District Courts. Upon review of the record, the Court has determined that this matter can be disposed of without an evidentiary hearing. See 28 U.S.C. § 2254(e)(2). Therefore, for all of the following reasons, IT IS RECOMMENDED that the petition be DISMISSED WITH PREJUDICE.
Pursuant to 28 U.S.C. § 2254(e)(2), whether to hold an evidentiary hearing is now a statutorily mandated determination. According to Section 2254(e)(2), the district court generally may hold an evidentiary hearing only when the petitioner has shown that either the claim relies on a new, retroactive rule of constitutional law that was previously unavailable ( 28 U.S.C. § 2254(e)(2)(A)(i)) or the claim relies on a factual basis that could not have been previously discovered through the exercise of due diligence ( 28 U.S.C. § 2254(e)(2)(A)(ii)); and the facts underlying the claim show by clear and convincing evidence that, but for the constitutional error, no reasonable jury would have convicted the petitioner ( 28 U.S.C. § 2254(e)(2)(B)).
Petitioner, Sugar Ray Lewis, is a state prisoner incarcerated at the Louisiana State Penitentiary, Angola, Louisiana. On July 22, 1999, he was convicted of attempted obscenity in violation of La.Rev.Stat.Ann § 14:106. On August 25, 1999, he was found to be a fourth offender and was sentenced as such to a term of life imprisonment, without benefit of probation, parole, or suspension of sentence, with credit for time served. On December 13, 2000, the Louisiana Fourth Circuit Court of Appeal affirmed petitioner's conviction and sentence. He then filed with the Louisiana Supreme Court an application for supervisory writs which was denied on October 5, 2001.
State Rec., Vol. II of IV, minute entry dated July 22, 1999.
State Rec., Vol. II of IV, transcript of August 25, 1999, pp. 17-18; State Rec., Vol. II of IV, minute entry dated August 25, 1999.
State v. Lewis, 776 So.2d 613 (La.App. 4th Cir. 2000) (No. 2000-KA-0053); State Rec., Vol. I of IV.
State Rec., Vol. I of IV.
State ex rel. Lewis v. State, 798 So.2d 966 (La. 2001) (No. 2001-KH-0381).
On or about September 17, 2002, petitioner filed with the state district court an application for post-conviction relief which was denied on October 18, 2002. He next filed with the Louisiana Fourth Circuit Court of Appeal an application for a supervisory writ which was denied on January 8, 2003. He then filed with the Louisiana Supreme Court an application for a writ of certiorari which was denied on February 6, 2004.
State Rec., Vol. I of IV.
State Rec., Vol. I of IV, Judgment dated October 18, 2002; State Rec., Vol. II of IV, minute entry dated October 25, 2002.
State Rec., Vol. III of IV.
State v. Lewis, No. 2002-K-2325 (La.App. 4th Cir. Jan. 8, 2003) (unpublished); State Rec., Vol. I of IV.
State Rec., Vol. IV of IV.
State ex rel. Lewis v. State, 865 So.2d 723 (La. 2004) (No. 2003-KH-0494); State Rec., Vol. II of IV.
On or about April 7, 2003, petitioner filed with the state district court a motion to correct an illegal sentence which was denied on April 10, 2003. He next filed with the Louisiana Fourth Circuit Court of Appeal an application for a writ of review which was denied on May 21, 2003. He then filed with the Louisiana Supreme Court an application for supervisory and/or remedial writs which was denied on February 6, 2004.
State Rec., Vol. I of IV.
State Rec., Vol. II of IV, minute entry dated April 16, 2003.
State Rec., Vol. IV of IV.
State v. Lewis, No. 2003-K-850 (La.App. 4th Cir. May 21, 2003) (unpublished); State Rec., Vol. III of IV.
State Rec., Vol. IV of IV.
State ex rel. Lewis v. State, 865 So.2d 737 (La. 2004) (No. 2003-KH-1696); State Rec., Vol. II of IV.
While that application was still pending, petitioner filed with the state district court another motion to correct an illegal sentence on or about January 12, 2004. That application was denied on April 13, 2004. He then filed with the Louisiana Fourth Circuit Court of Appeal an application for a writ of review. On May 29, 2004, that writ was granted, but petitioner was denied relief. He next filed with the Louisiana Supreme Court an application for a writ of review which was denied on April 29, 2005.
State Rec., Vol. III of IV. The motion is dated January 12, 2003, but petitioner states in his related Supreme Court writ application that the motion was filed on January 12, 2004.
State Rec., Vol. IV of IV, Judgment dated April 13, 2004; State Rec., Vol. II of IV, minute entry dated April 13, 2004.
State Rec., Vol. III of IV.
State v. Lewis, No. 2004-K-0839 (La.App. 4th Cir. May 29, 2004) (unpublished); State Rec., Vol. IV of IV.
State Rec., Vol. IV of IV.
State ex rel. Lewis v. State, 901 So.2d 1058 (La. 2005).
While those proceedings were ongoing, petitioner filed this federal application for habeas corpus relief on March 18, 2004. In support of this application, petitioner claims:
1. The trial court erred in adjudicating and sentencing petitioner as a fourth offender;
Rec. Doc. 1.
Petitioner's claims have been consolidated and rearranged for ease of analysis.
2. Petitioner's sentence was excessive;
3. The jury was improperly charged;
4. The bill of information was defective;
5. Expert testimony was wrongly admitted into evidence;
6. Petitioner received ineffective assistance of counsel;
7. The trial court erred in denying a motion to suppress; and
8. Petitioner was subjected to double jeopardy.
Petitioner filed a motion to amend his petition to add this double jeopardy claim. Rec. Doc. 8. That motion has been granted. Rec. Doc. 9.
The state concedes that petitioner's federal application is timely filed and that he exhausted his state court remedies with respect to the claims asserted in this proceeding. Accordingly, the Court will address petitioner's claims on the merits.
Rec. Doc. 7, p. 8.
Rec. Doc. 7, p. 2.
Standard of Review
The Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA") comprehensively overhauled federal habeas corpus legislation, including 28 U.S.C. § 2254. Amended subsections 2254(d)(1) and (2) contain revised standards of review for questions of fact, questions of law, and mixed questions of law and fact. Provided that the state court adjudicated the claim on the merits, pure questions of law and mixed questions of law and fact are reviewed under § 2254(d)(1) and questions of fact are reviewed under § 2254(d)(2). Hill v. Johnson, 210 F.3d 481, 485 (5th Cir. 2000).
As to questions of law and mixed questions of law and fact, a federal court must 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." 28 U.S.C. § 2254(d)(1). The United States Supreme Court has noted:
§ 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 (2000)] that an unreasonable application is different from an incorrect one.Bell v. Cone, 535 U.S. 685, 694 (2002) (citations omitted).
Facts
On direct appeal, the Louisiana Fourth Circuit Court of Appeal summarized the facts of this case as follows:
On March 29, 1999, Doretha Nickles was living on Dauphine Street. On that day, she had sent her fiancé to the grocery to purchase some seasoning that she needed for the meal she was preparing. He was taking a long time so she went to look for him. She walked to the corner of Dauphine and Elysian Fields Avenue where she encountered the defendant. The defendant spoke to her. In response, Ms. Nickles nodded her head. Ms. Nickles decided to walk to Jean's Po-boy Shop as she thought her fiancé might have been playing a video poker machine. She crossed Elysian Fields by the Baptist Friendship House. As she passed the building, she heard someone say "psst." She turned and saw the defendant. He had pulled down his pants and had his "private" out. The defendant came after her from behind, choked her and rolled her to her side. She fought with the defendant and was able to escape. As she was running, she noticed the defendant did not leave the scene. He stood there masturbating. When she looked back again, the defendant was running towards her on the opposite side of the street. As the victim approached the intersection of St. Claude and Elysian Fields, she saw her son and his girlfriend. She yelled to her son to run after the defendant who was then running through Schwegmann's parking lot. She told her son that the defendant attempted to rape her. Her son and his girlfriend ran after the defendant but the defendant ran into an alleyway and her son lost sight of the defendant. They saw the defendant when he came out of the alleyway and continued to chase him. They thought they lost him again near the intersection of Montgomery and Elysian Fields. However, the victim's son's girlfriend saw the defendant's feet sticking out under a white van. They barricaded the defendant under the van until the police arrived. Ms. Nickles identified the defendant on the scene as the perpetrator.
Ferdinand Nickles, Doretha Nickles' son, testified that he and his girlfriend were waiting at the bus stop at the intersection of St. Claude and Elysian Fields when they saw his mother running towards them on Elysian Fields. He shouted to his mother who looked distraught. His mother told him that someone had attempted to rape her. When he turned, his mother saw the guy and he ran after the subject. The witness stated that he had lost sight of the defendant when his girlfriend observed the defendant under a white van. They put barricades around the van to prevent the defendant from escaping. A cab driver pulled up and asked if any assistance was needed. They asked the cab driver to call the police. The witness identified the defendant at trial.
Monique Gonzales, Ferdinand Nickles' girlfriend, saw the victim running towards them on Elysian Fields while she and Ferdinand were waiting for a bus. The victim told them that someone had just attempted to rape her. The victim pointed out the defendant who they saw running from the area. The witness and Ferdinand ran after the defendant. They lost sight of the defendant for a short while. However, the witness spotted the defendant on Rampart Street and they continued chasing him. They again lost sight of him but located him underneath a white van a few minutes later. They barricaded the defendant under the van until the police arrived.
Officer Dennis DeJean investigated the incident that occurred in the eight hundred block of Elysian Fields. When the officer arrived on the scene, he observed a white van parked near the intersection of Burgundy and Elysian Fields. The defendant was underneath the van. He was being held there by the victim, her son and his girlfriend. The officer's investigation revealed that the defendant attacked the victim in the eight hundred block of Elysian Fields while his penis was exposed and attempted to have sexual intercourse with the victim against her will. The victim positively identified the defendant as the perpetrator. The defendant was then removed from underneath the vehicle and placed under arrest.
Det. Shiryl Matthews, a rape detective with the New Orleans Police Department, responded to a call concerning an attempted rape on Elysian Fields Avenue on March 29, 1999. When the officer arrived on the scene, she met with the victim, the victim's son and the son's girlfriend. The officer also observed that the defendant was in the back seat of a police vehicle. After interviewing the victim and the witnesses, she determined that a rape did not occur. While on the scene, the officer called for a crime lab technician. The lab technician took photographs and collected evidence from the scene, including the defendant's clothing. Two liquid samples were taken from the ground. Sample one was taken from the eight hundred block of Elysian Fields. Sample two was taken in front of 813 Elysian Fields Avenue. The officer testified that the victim identified the defendant on the scene as the perpetrator.
Madelyn Collins, a criminalist with the New Orleans Police Department Crime Lab, testified that she tested several items for seminal fluid, blood, and/or hair. A plastic bag and a blue nylon cap tested negative for seminal fluid, blood and/or hair. Defendant's brown shoes and red tee shirt tested positive for blood but negative for seminal fluid and/or hair. Defendant's black jeans and white shorts tested positive for blood and seminal fluid but negative for hair. Liquid sample one, taken from the eight hundred block of Elysian Fields, tested negative for seminal fluid. Liquid sample two, taken from in front of 813 Elysian Fields, tested positive for seminal fluid.
State v. Lewis, 776 So.2d 613, 615-17 (La.App. 4th Cir. 2000) (No. 2000-KA-0053); State Rec., Vol. I of IV.
Multiple Offender Adjudication and Sentence
Petitioner argues that he was wrongly adjudicated and sentenced as a fourth offender because the state failed to prove that the "cleansing period" had not elapsed with respect to the predicate offenses. The state argues that petitioner's claim is procedurally barred.The United States Fifth Circuit Court of Appeals has concisely set forth the standards to be used when analyzing whether a claim is procedurally barred:
A claim that a state has withheld a federal right from a person in its custody may not be reviewed by a federal court if the last state court to consider that claim expressly relied on a state ground for denial of relief that is both independent of the merits of the federal claim and an adequate basis for the court's decision. To satisfy the "independent" and "adequate" requirements, the dismissal must "clearly and expressly" indicate that it rests on state grounds which bar relief, and the bar must be strictly or regularly followed by state courts, and applied to the majority of similar claims. This rule applies to state court judgments on both substantive and procedural grounds. Where there has been one reasoned state judgment rejecting a federal claim, later unexplained orders upholding that judgment or rejecting the same claim are presumed to rest upon the same ground.Finley v. Johnson, 243 F.3d 215, 218 (5th Cir. 2001) (citations omitted). "When the state court has relied on an independent and adequate state procedural rule, federal habeas review is barred unless the petitioner demonstrates either cause and prejudice or that a failure to address the claim will result in a fundamental miscarriage of justice." Hughes v. Johnson, 191 F.3d 607, 614 (5th Cir. 1999).
The state is correct in its contention that petitioner's claim was rejected by the state courts on procedural grounds. In the last reasoned state court decision addressing this claim, the Louisiana Fourth Circuit Court of Appeal rejected the claim, holding:
The defendant argues that the trial court erroneously adjudicated him to be a fourth felony offender. He contends that the State failed to produce any evidence concerning the "cleansing period" between each offense. A review of the appellate record reveals that the defendant did not file a motion to quash the multiple bill or object to the failure of the State to prove that the cleansing periods had not elapsed at the multiple bill hearing. As such, this issue has not been preserved for appeal. See La.R.S. 15:529.1(D)(1)(b) and State v. Cossee, 95-2218 (La.App. 4 Cir. 7/24/96), 678 So.2d 72.
This assignment is without merit.
Lewis, 776 So.2d at 617; State Rec., Vol. I of IV. The Louisiana Supreme Court rejected the related writ application without assigning reasons. State ex rel. Lewis v. State, 798 So.2d 966 (La. 2001) (No. 2001-KH-0381).
Because the state court clearly invoked a state procedural rule independent of the merits of any federal claim, this Court need only address whether that rule is "adequate." "The [procedural bar] doctrine presumes that a state procedural ground is adequate . . . and, ordinarily, the burden is on the habeas petitioner to demonstrate otherwise." Hughes, 191 F.3d at 614. In order to establish that a state procedural rule is not "adequate," a petitioner bears the burden of showing that the state did not strictly or regularly follow the procedural rule around the time it was applied. Stokes v. Anderson, 123 F.3d 858, 860 (5th Cir. 1997). Here, petitioner clearly has not met his burden, in that he makes no attempt to establish that the procedural rule was not strictly or regularly followed. Moreover, this Court's research indicates that Louisiana state courts strictly and regularly invoke the procedural rule that a challenge to the multiple bill of information is waived unless the criminal defendant files a written response as required by 15:529.1(D)(1)(b) and objects at the multiple offender hearing. See, e.g., State v. Washington, 895 So.2d 691, 694 (La.App. 2nd Cir. 2005); State v. Stevenson, 868 So.2d 811, 812 (La.App. 5th Cir.), writs denied, 882 So.2d 1166 (La. 2004) and 883 So.2d 1004 (La. 2004); State v. Jackson, 781 So.2d 705, 711 (La.App. 2nd Cir. 2001); State v. Ball, 748 So.2d 1239, 1248 (La.App. 2nd Cir. 1999); State v. Crosby, 748 So.2d 502, 507 (La.App. 4th Cir. 1999); State v. Guy, 737 So.2d 231, 238-39 (La.App. 4th Cir. 1999).
"When the state court has relied on an independent and adequate state procedural rule, federal habeas review is barred unless the petitioner demonstrates either cause and prejudice or that a failure to address the claim will result in a fundamental miscarriage of justice." Hughes v. Johnson, 191 F.3d 607, 614 (5th Cir. 1999). In the instant case, petitioner demonstrates neither.
"To establish cause for a procedural default, there must be something external to the petitioner, something that cannot fairly be attributed to him." Johnson v. Puckett, 176 F.3d 809, 816 (5th Cir. 1999) (quotation marks omitted) (emphasis in original). Objective factors that can constitute cause include interference by officials that makes compliance with the state procedural rule impracticable, a showing that the factual or legal basis for the claim was not reasonably available to counsel, and ineffective assistance of counsel. Romero v. Collins, 961 F.2d 1181, 1183 (5th Cir. 1992).
The only contention in petitioner's federal application which could be construed as an attempt to establish cause for the default is his contention that his counsel was ineffective in failing to file a motion to quash the multiple bill of information to preserve the issue for appellate review. However, the state courts expressly rejected petitioner's claim that his counsel was ineffective in that respect. On direct appeal, the Louisiana Fourth Circuit Court of Appeal held:
The defendant's claim of ineffective assistance of counsel is to be assessed by the two part test of Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); State v. Fuller, 454 So.2d 119 (La. 1984). The defendant must show that counsel's performance was deficient and that the deficiency prejudiced the defendant. Counsel's performance is ineffective when it can be shown that he made errors so serious that counsel was not functioning as the "counsel" guaranteed to the defendant by the Sixth Amendment. Strickland, supra at 686, 104 S.Ct. at 2064. Counsel's deficient performance will have prejudiced the defendant if he shows that the errors were so serious as to deprive him of a fair trial. To carry his burden, the 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, supra at 693, 104 S.Ct. at 2068. The defendant must make both showings to prove that counsel was so ineffective as to require reversal. State v. Sparrow, 612 So.2d 191, 199 (La.App. 4 Cir. 1992).
In the present case, the defendant contends that his trial counsel was ineffective for failing to file a motion to quash the multiple bill or object on the basis of the State's failure to prove that the cleansing periods had not elapsed. The multiple bill of information filed by the State and the documentation presented at the hearing indicate that the defendant pled guilty to theft between one hundred and five hundred dollars on July 10, 1985 and was sentenced to one year at hard labor. On January 20, 1995, the defendant pled guilty to possession of stolen property and was sentenced to one year at hard labor. On April 30, 1997, the defendant pled guilty to multiple offender theft and was sentenced to two years at hard labor. The sentence was suspended and placed on two years active probation. The present offense occurred on March 29, 1999.
La.R.S. 15:529.1(C) provides that the statute does not apply when more than ten years have elapsed since the expiration of the maximum sentence, or sentences, of the previous convictions [sic], or convictions, and the time of the commission of the last felony for which he has been convicted. As the documents produced by the State reflect that the ten years did not elapse between each offense, the State met its burden of proof under La.R.S. 15:529.1. Therefore, defendant's trial counsel did not have a meritorious argument concerning the cleansing period, and a motion to quash based on this issue would have been denied. As such, defendant's trial counsel was not ineffective for failing to file a motion to quash the multiple bill of information.
This assignment of error is without merit.
Lewis, 776 So.2d at 617-18; State Rec., Vol. I of IV.
Because an ineffective assistance of counsel issue is a mixed question of law and fact, the AEDPA requires this Court to defer to the state court's decision on that issue unless petitioner demonstrates that the decision "was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States." 28 U.S.C.
§ 2254(d)(1); Moore v. Cockrell, 313 F.3d 880, 881 (5th Cir. 2002). Petitioner has made no such showing in this case. The state court clearly applied the correct legal standard set forth in Strickland and did so in a reasonable manner. Accordingly, petitioner has not established that his counsel was ineffective in failing to file a motion to quash the multiple bill of information, and, as a result, has not shown cause for the procedural default. "Absent a showing of cause, it is not necessary for the court to consider whether there is actual prejudice." Martin v. Maxey, 98 F.3d 844, 849 (5th Cir. 1996).Without a showing of cause and prejudice, a petitioner's defaulted claim is procedurally barred unless the application of the bar will result in a fundamental miscarriage of justice. The fundamental miscarriage of justice exception is limited to claims of actual innocence. See Bagwell v. Dretke, 372 F.3d 748, 757 (5th Cir. 2004); Lucas v. Johnson, 132 F.3d 1069, 1077 (5th Cir. 1998). However, it is unclear to what extent, if any, the "actual innocence" exception is available when a petitioner merely claims a sentencing error in a non-capital proceeding.
In Haley v. Cockrell, 306 F.3d 257 (5th Cir. 2002), the United States Fifth Circuit Court of Appeals, after noting that a split exists among the circuits on that issue, held that the "actual innocence" exception is available to petitioners in non-capital proceedings who claim they were erroneously sentenced as habitual or multiple offenders. Id. at 265-66. However, the Haley court held that when barred claims dealt with such alleged sentencing errors, the "actual innocence" requirement is met only when the petitioner shows that "he would have not been legally eligible for the sentence he received." Id. at 264. The Supreme Court subsequently vacated the Haley decision on other grounds and remanded the case to the Fifth Circuit. Dretke v. Haley, 541 U.S. 386 (2004). In so doing, the Supreme Court declined to answer the question of whether the "actual innocence" exception applies to noncapital sentencing errors. Id. at 393-94.
This Court, mindful of the fact that the Fifth Circuit has remanded Haley to the district court, does not attempt to answer the question left open by the Supreme Court. Nevertheless, even if the "actual innocence" exception is available to defaulted claims regarding non-capital sentencing errors, petitioner does not fit within the exception. Petitioner does not claim that we was not in fact a fourth offender; rather, he simply argues that the state failed to prove that he was a fourth offender by establishing that the "cleansing period" had not elapsed with respect to the predicate offenses. He does not, and indeed cannot, demonstrate that he was legally ineligible for the habitual offender sentence he received. Thus, he has not demonstrated that any miscarriage of justice will result from application of the procedural bar.
On remand, the Fifth Circuit acknowledged that Haley was vacated and remanded the case back to the district court for adjudication of Haley's claim of ineffective assistance of counsel. Haley v. Dretke, 376 F.3d 316 (5th Cir. 2004).
As noted previously, the Louisiana Fourth Circuit Court of Appeal found that the state had in fact met its burden proof regarding the cleansing period. Moreover, after the state intermediate appellate court's decision in this matter, the Louisiana Supreme Court issued an opinion clarifying the state law on this issue which makes that fact even more evident. In State v. Everett, 816 So.2d 1272 (La. 2002), the Louisiana Supreme Court held that the ten-year period applies only when determining if there is less than ten years between discharge on the immediately preceding conviction and the commission of the current offense. If that requirement is met, then all other prior convictions may be used to enhance the current sentence regardless of when the defendant was discharged on those other convictions. In the instant case, less than two years had elapsed since petitioner's immediately preceding conviction in 1997 and the commission of the offense in 1999. Accordingly, petitioner's underlying legal contention regarding the "cleansing period" is clearly wrong, and he was legally eligible to be sentenced as a fourth offender.
Accordingly, petitioner's claim that he was wrongly adjudicated and sentenced as a fourth offender because the state failed to prove that the "cleansing period" had not elapsed with respect to the predicate offenses is procedurally barred in this federal proceeding.
Excessive Sentence
Petitioner claims that his sentence to life imprisonment as a fourth offender is excessive. On direct appeal, the Louisiana Fourth Circuit Court of Appeal rejected that claim, holding:
The defendant also argues that the trial court imposed an unconstitutionally excessive sentence. After adjudicating the defendant to be a fourth felony offender, the trial court sentenced [sic] to life imprisonment at hard labor pursuant to La.R.S. 15:529.1(A)(1)(c)(i).[FN2]
FN2. This portion of the multiple offender statute provides that "[I]f the fourth or subsequent felony is such that, upon first conviction the offender would be punishable by imprisonment for any term less than his natural life then . . . [t]he person shall be sentenced to imprisonment for the fourth or subsequent felony for a determinate term not less than the longest period prescribed for a first conviction but in not event less than twenty years and not more than his natural life."
Article 1, Section 20 of the Louisiana Constitution of 1974 provides that "No law shall subject any person . . . to cruel, excessive or unusual punishment."
A sentence within the statutory limit is constitutionally excessive if it is "grossly out of proportion to the severity of the crime" or is "nothing more than the purposeless imposition of pain and suffering." State v. Caston, 477 So.2d 868 (La.App. 4 Cir. 1985). Generally, a reviewing court must determine whether the trial judge adequately complied with the sentencing guidelines set forth in La.C.Cr.P. art. 894.1 and whether the sentence is warranted in light of the particular circumstances of the case. State v. Soco, 441 So.2d 719 (La. 1983); State v. Quebedeaux, 424 So.2d 1009 (La. 1982).
If adequate compliance with Article 894.1 is found, the reviewing court must determine whether the sentence imposed is too severe in light of the particular defendant and the circumstances of his case, keeping in mind that maximum sentences should be reserved for the most egregious violators of the offense so charged. State v. Quebedeaux, supra; State v. Guajardo, 428 So.2d 468 (La. 1983).
Prior to sentencing the defendant, the trial court recognized that the defendant had more than four felony convictions, stating:
All right, the Court would, since the Court has noted that the Defendant does have a number of other convictions besides the ones sited [sic] in the Multiple Offender Bill, the Defendant also did have another case in this Section of court charging him with rape that the State had to ultimately nolle prosed [sic] because of problems with the victim, but that along with some other arrests, the Court can consider in deciding the Defendant's character and propensities. The Court believes that Mr. Lewis has shown that if he's on the street, there is only one thing that he's going to do, and that is to commit crimes and prey on other people in this community. The Court believes that way the Court can assure that he does not do that is to make sure that he spends the remainder of his natural life in jail.
As the trial court noted, it was aware of the defendant's extensive criminal history. The defendant had been convicted of seven felonies from 1982 to 1999. In addition to the present offense, the defendant was also convicted of simple battery as a result of the same circumstances which led to the present conviction of attempted obscenity. Furthermore, the trial court was aware that, although the defendant was charged with obscenity and convicted of attempted obscenity, the facts of the present case indicate that the defendant was attempting to force sexual intercourse on the victim without her consent. Thus, the trial court was aware, and noted in its reasons, the defendant's propensity for serious and injurious criminal offenses. The facts of the present case and defendant's extensive criminal history clearly support the trial court's decision to sentence the defendant to life imprisonment. The sentence imposed is not unconstitutionally excessive.
This assignment is without merit.
Lewis, 776 So.2d at 618-19; State Rec., Vol. I of IV.
The state court analyzed petitioner's claim under state law. This Court does not sit to review errors of state law; rather, federal habeas corpus relief is available only for violations of federal constitutional law. Narvaiz v. Johnson, 134 F.3d 688, 695 (5th Cir. 1998). Therefore, this Court looks only to see whether petitioner's sentence is so excessive as to violate the Eighth Amendment of the United States Constitution.
In Solem v. Helm, 463 U.S. 277, 284 (1983), the Supreme Court held that the Eighth Amendment "prohibits not only barbaric punishments, but also sentences that are disproportionate to the crime committed." "This constitutional principle is tempered, however, by the corollary proposition that the determination of prison sentences is a legislative prerogative that is primarily within the province of legislatures, not courts." United States v. Gonzales, 121 F.3d 928, 942 (5th Cir. 1997) (citing Rummel v. Estelle, 445 U.S. 263, 274-76 (1980)). "[C]ourts must grant substantial deference to the broad authority that legislatures necessarily possess in determining the types and limits of punishments for crimes." Gonzales, 121 F.3d at 942 (quotation marks omitted). "[T]herefore, it is firmly established that successful challenges to the proportionality of punishments should be exceedingly rare." Id. (quotation marks omitted).
Interpreting Solem in light of intervening precedent, the United States Fifth Circuit Court of Appeals has set forth the framework to be used when analyzing a claim that a sentence is excessive:
[W]e will initially make a threshold comparison of the gravity of [petitioner's] offenses against the severity of his sentence. Only if we infer that the sentence is grossly disproportionate to the offense will we then . . . compare the sentence received to (1) sentences for similar crimes in the same jurisdiction and (2) sentences for the same crime in other jurisdictions.McGruder v. Puckett, 954 F.2d 313, 316 (5th Cir. 1992). Furthermore, when evaluating the excessiveness of a sentence imposed under a habitual offender statute, a court must be mindful that the "sentence is imposed to reflect the seriousness of [petitioner's] most recent offense, not as it stands alone, but in the light of his prior offenses." Id.
The Fifth Circuit has noted that Rummel v. Estelle, 445 U.S. 263 (1980), "establishes a benchmark for disproportionate punishment under the Eighth Amendment." Gonzales, 121 F.3d at 943. In Rummel, the Supreme Court upheld a petitioner's sentence to life imprisonment for obtaining $120.75 under false pretenses. The sentence was imposed under a Texas recidivist statute and took into account petitioner's prior convictions for fraudulent use of a credit card and passing a forged check. The Fifth Circuit observed:
We acknowledge that the distinction between constitutional sentences and grossly disproportionate punishments is an inherently subjective judgment, defying bright lines and neutral principles of law. Nevertheless, we can say with certainty that the life sentence approved in Rummel falls on the constitutional side of the line, thereby providing a litmus test for claims of disproportionate punishment in violation of the Eighth Amendment.Gonzales, 121 F.3d at 943 (footnote omitted).
Applying this "litmus test" and considering the Rummel finding that a life sentence was not excessive when imposed for a nonviolent offense where the habitual offender had two prior nonviolent offenses, this Court has no hesitation in concluding that petitioner's life sentence as a fourth offender was not grossly disproportionate in light of the gravity of the offense and petitioner's habitual offender status. In that the sentence is not grossly disproportionate, this Court's "inquiry is finished." Gonzales, 121 F.3d at 942. Because petitioner's sentence is not so excessive as to violate the United States Constitution, this claim must fail.
Erroneous Jury Charge
Petitioner contends that the trial judge erred in instructing the jury regarding the requisite criminal intent needed to convict. The United States Fifth Circuit Court of Appeals has noted:
[A petitioner challenging the adequacy of jury instructions] faces a extraordinarily heavy burden. Improper jury instructions in state criminal trials do not generally form the basis for federal habeas relief. The burden of demonstrating that an erroneous instruction was so prejudicial that it will support a collateral attack on the constitutional validity of the state court's judgment is even greater than the showing required to establish plain error on direct appeal.
Before a federal court may grant relief under 28 U.S.C. § 2254 based on alleged error in a state trial court's unobjected to charge, the error must be so egregious as to rise to the level of a constitutional violation or so prejudicial as to render the trial itself fundamentally unfair. It must be established not only that the instruction was undesirable, erroneous, or even universally condemned, but that it violated some right which was guaranteed to the defendant by the fourteenth amendment, and that the ailing instruction by itself so infected the entire trial that the resulting conviction violates due process.
In applying these principles to the instructions in [a] case, we pay careful attention to the words actually spoken to the jury, for whether a defendant has been accorded his constitutional rights depends on the way in which a reasonable juror could have interpreted the instruction. And we are mindful that a single instruction to the jury may not be judged in artificial isolation, but must be viewed in the context of the entire charge.Tarpley v. Estelle, 703 F.2d 157, 159-60 (5th Cir. 1983) (internal quotation marks, brackets, ellipsis, citations, and footnote omitted); see also Galvan v. Cockrell, 293 F.3d 760, 764-65 (5th Cir. 2002).
Petitioner was charged with obscenity, a general intent crime, but he was convicted of attempted obscenity, a specific intent crime. Petitioner contends that his rights were violated because the trial court failed to instruct the jury that attempted obscenity is a specific intent crime.
See State v. Rodriguez, 753 So.2d 339, 346 (La.App. 4th Cir. 2000).
"[S]pecific intent to commit a crime is an element of an attempted offense." State v. Doby, 540 So.2d 1008, 1011 (La.App. 2nd Cir. 1989).
The state argues that petitioner's claim should be denied because he has presented no evidence in support of his claim. Presumably, the state is faulting petitioner for failing to attach to his petition a copy of the jury instructions. The state, however, overlooks the fact that the jury instructions are, or should be, part of the official court record — a record over which the state, not petitioner, has control. The state also overlooks the additional fact that it was ordered to supply this Court with a copy of the entire state court record, and yet the record supplied does not contain a copy of the jury instructions. In light of those facts, the Court is not comfortable proceeding as the state suggests.
Nevertheless, the Court is left with the fact that neither party to this action has provided a copy of the jury instructions which, obviously, would be helpful in the resolution of this claim. However, the absence of the jury instructions is not critical in this instance. Even if the Court accepts as true petitioner's allegation that the trial court failed to instruct the jury that attempted obscenity is a specific intent crime, he still is not entitled to federal habeas corpus relief for the following reasons.
If the Court assumes that the jury was not instructed that attempted obscenity is a specific intent crime, and further assumes that the failure to so instruct the jury rises to the level of a constitutional error, petitioner still is not entitled to federal habeas corpus relief if that error was ultimately harmless. The United States Fifth Circuit Court of Appeals has noted that "[u]nder Brecht [ v. Abrahamson], 507 U.S. 618 (1993), a federal court may grant habeas relief only if it determines that the constitutional error had a substantial and injurious effect or influence in determining the jury's verdict." Robertson v. Cain, 324 F.3d 297, 304 (5th Cir. 2003) (internal quotation marks omitted). The Fifth Circuit further expressly held that " Brecht survives AEDPA's enactment." Id. at 306.
This Court is aware that Brecht is inapplicable where "the record is so evenly balanced that a conscientious judge is in grave doubt as to the harmlessness of the error." Id. at 305 (internal quotation marks omitted). In the instant case, however, the record was not "evenly balanced." The state presented considerable evidence of petitioner's guilt. At trial, Doretha Nickles testified that, while walking in front of a building on a city street, she heard someone say, "psst," and she then turned around and saw petitioner with his pants down and his "private" out. After she successfully fought off a subsequent attack by petitioner, she saw him remain at the scene masturbating. He was apprehended shortly thereafter and identified on the scene by Nickles. Seminal fluid was collected from the ground at the crime scene. The jeans and shorts petitioner was wearing at the time of the incident also tested positive for seminal fluid. At trial, the defense rested without presenting any evidence whatsoever.
See State Rec., Vol. II of IV, minute entry dated July 22, 1999.
Petitioner was initially charged with obscenity, which, under Louisiana law, is committed, inter alia, when the offender intentionally exposes his genitals "in any public place or place open to the public view with the intent of arousing sexual desire or which appeals to prurient interest or is patently offensive." La.Rev.Stat.Ann. § 14:106. Testimony by an eyewitness that the defendant exposed his genitals and masturbated is sufficient to support an obscenity conviction. State v. Arabie, 507 So.2d 859, 861 (La.App. 5th Cir. 1987). However, as noted, the jury convicted petitioner of attempted obscenity. Petitioner was guilty of attempted obscenity only if he, having a specific intent to commit the crime of obscenity, did or omitted an act for the purpose of and tending directly toward the commission of that crime. See La.Rev.Stat.Ann. § 14:27. Under Louisiana law, specific intent may be inferred from the actions of the accused and the surrounding circumstances. State v. Brown, 907 So. 2d 1, 18 (La. 2005); State v. Maxie, 653 So.2d 526, 532 (La. 1995). Based on the uncontroverted evidence in this case, specific intent to commit the crime of obscenity would naturally be inferred from petitioner's actions (exposing his genitals and masturbating in public). Therefore, any failure to instruct the jury on the element of specific intent cannot be said to have had a substantial and injurious effect or influence in determining the jury's verdict in the instant case. Accordingly, this Court has no doubt, much less the "grave doubt" required to make Brecht inapplicable, that the alleged error in failing to instruct the jury that the lesser offense of attempted obscenity is a specific intent crime was ultimately harmless.
Based on the foregoing, the Court finds that petitioner's claim should be rejected.
Defective Bill of Information
Petitioner claims that the bill of information was defective. That claim has no merit for the following reasons.
The sufficiency of a state charging instrument is not a matter for federal habeas relief unless it can be shown that the instrument is so defective that it deprives the state court of jurisdiction. McKay v. Collins, 12 F.3d 66, 68 (5th Cir.), reh'g granted in part on other grounds sub nom., Williams v. Collins, 12 F.3d 70 (5th Cir. 1994) (per curiam). The United States Fifth Circuit Court of Appeals has observed that the sufficiency of a state charging instrument is fatally defective only when there are no circumstances under which there could be a valid conviction based on that instrument, and that "determination can be made only by looking to the law of the state." Liner v. Phelps, 731 F.2d 1201, 1203 (5th Cir. 1984) (internal quotation marks omitted) (emphasis in original).
Louisiana law provides:
The information may be in substantially the following form:
In the (Here state the name of the court.) on the ___ day of ___, 19 ___. State of Louisiana v. A.B. (Here state the name or description of the accused.).
X.Y., District Attorney for the Parish of ___, charges that A.B. (Here state the name or description of the accused.) committed the offense of _______, in that (Here set forth the offense and transaction according to the rules stated in this Title. The particulars of the offense may be added with a view to avoiding the necessity for a bill of particulars.) contrary to the law of the state of Louisiana and against the peace and dignity of the same.
La.C.Cr.P. art. 463. Louisiana law further requires that the charging instrument set forth "a plain, concise, and definite statement of the essential facts constituting the offense charged." La.C.Cr.P. art. 464.
In the instant case, the bill of information stated:
MARC J. BITNER Assistant District Attorney for the Parish of Orleans, who in the name and by the authority of the said State, prosecutes, in this behalf, in proper person comes into the Criminal District Court for the Parish of Orleans, in the Parish of Orleans, and gives the said Court here to understand and be informed that one SUGAR R. LEWIS late of the Parish of Orleans, on the 29th day of March in the year of our Lord, one thousand nine hundred and ninety-nine in the Parish of Orleans aforesaid, and within the jurisdiction of the Criminal District Court for the Parish of Orleans, did commit the crime of OBSCENITY by intentionally exposing his genitals, pubic hair, or anus in a public place or place open to the public view, which act was performed with the intent of arousing sexual desire, or appealed to prurient interest, or was offensive, contrary to LSA — R.S. 14:106, (G), (1), contrary to the form of the Statute of the State of Louisiana in such case made and provided against the peace and dignity of the same.
State Rec., Vol. III of IV.
Under Louisiana law, technical deficiencies and the omission of essential facts do not necessarily render a charging document fatally defective. See, e.g., State v. Johnson, 822 So.2d 840, 842 (La.App. 5th Cir. 2002). Rather, a charging document is fatally defective only when it fails to set forth an identifiable offense and inform the criminal defendant of the statutory basis of the offense. See State v. Robichaux, 412 So.2d 1313, 1321 (La. 1982). In the instant case, petitioner does not claim that the alleged defects rise to that level, and they obviously do not. The bill of information clearly informed petitioner of the offense with which he was charged and the statutory basis for that offense. Because the bill of information was not so fatally defective as to deprive the trial court of jurisdiction, federal habeas corpus relief clearly is not warranted.
Moreover, the Court notes that petitioner has not demonstrated that the bill of information was in fact deficient. He complains that the bill of information was defective in three respects; however, petitioner's complaints appear to be meritless.
Petitioner's first complaint is that the bill of information alleged that he exposed his genitals, pubic hair, or anus without being more specific as to exactly which of the three possible body parts was actually exposed. Petitioner has cited no authority for his proposition that specificity to that degree is required.
Petitioner's second complaint is that the bill of information failed to identify the person to whom he exposed himself. That complaint is apparently based on La.C.Cr.P. art. 473 which, under certain circumstances, requires identification of the crime victim. That article provides in pertinent part: "When the name of the person injured is substantial and not merely descriptive, such as when the injury is to the person, as in murder, rape, or battery, the indictment shall state the true name of the victim or the name, appellation, or nickname by which he is known." La.C.Cr.P. art. 473. However, petitioner cites no authority for his implicit proposition that the crime of obscenity is a crime against a particular person, such as with the listed crimes of murder, rape, or battery. Moreover, in any event, even if article 473 would be applicable to the crime obscenity, failure to comply with the article's requirement does not render the charging document so defective as to deprive the court of jurisdiction. See State v. Folse, 623 So.2d 59, 64-65 (La.App. 1st Cir. 1993) (noncompliance with article 473 is subject to harmless error analysis).
Petitioner's third complaint is that the bill of information failed to state the specific location at which the offense took place. However, Louisiana law provides that "[t]he place of the commission of the offense need not be alleged in the indictment unless the place of commission is essential to the offense." La.C.Cr.P. art. 469. Location is not essential to the crime of obscenity. Location is only relevant in that the crime must be committed in a public place or place open to the public view, and that allegation was contained in the bill of information.
Expert Testimony
Petitioner claims that the trial court erred in allowing the expert testimony of Madelyn Collins, a criminalist with the New Orleans Police Department Crime Lab. As noted previously, Collins testified at trial that a liquid sample taken from the ground in front of 813 Elysian Fields tested positive for seminal fluid. Petitioner argues that the testimony was unduly prejudicial because no DNA evidence was introduced to prove that the semen came from petitioner.The United States Fifth Circuit Court of Appeals has held:
In habeas actions, [a federal court] does not sit to review the mere admissibility of evidence under state law. However, a state trial court's evidentiary rulings will mandate habeas relief when errors are so extreme that they constitute a denial of fundamental fairness. Thus, only when the wrongfully admitted evidence has played a crucial, critical, and highly significant role in the trial will habeas relief be warranted.Little v. Johnson, 162 F.3d 855, 862 (5th Cir. 1998). Therefore, to the extent that petitioner is arguing that the state courts misapplied state evidence law, his claim presents an issue of state law which is not reviewable in this federal proceeding.
Additionally, to the extent that petitioner is claiming that the alleged evidentiary error was so extreme that it rendered his trial fundamentally unfair, that claim has no merit for the following reasons.
First, the Court notes that petitioner has failed to demonstrate that the state court's ruling was erroneous. The Louisiana Code of Evidence provides that relevant evidence is admissible unless otherwise provided by law. La. Code. Evid. 402. Louisiana law further provides:
"Relevant evidence" means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.
La. Code Evid. art. 401. Collins testified that the liquid found on the street was semen. That semen was found on the street at the location at which Nickles testified petitioner was masturbating is undeniably relevant. The fact that the semen was not tied to petitioner through DNA testing is of no consequence. While the state was required to prove petitioner's guilt beyond a reasonable doubt, it was not required to do so by utilizing DNA testing. See State v. Winston, 844 So.2d 184, 190 (La.App. 5th Cir.), writ denied, 858 So.2d 419 (La. 2003). Collins' testimony is not unduly prejudicial solely because the state decided to forego DNA testing, probably assuming that the jury would reasonably infer that the semen came from petitioner based on the fact that the victim witnessed him masturbating at that location and, presumably, semen is rarely found on the street. Although petitioner was, of course, free to argue to the jury that the prosecution failed to establish that the semen was his, that ultimately presented a question of the weight which should be accorded to the evidence, not its admissibility.
Nevertheless, even if testimony regarding the semen was erroneously admitted, it would not necessarily follow that petitioner is entitled to federal habeas corpus relief. As noted previously, habeas relief is warranted based on an erroneous evidentiary ruling when the wrongly admitted evidence played a crucial, critical, and highly significant role in the trial. In the instant case, the testimony identifying the substance found as semen clearly did not rise to that level in light of the other evidence of petitioner's guilt.
Ineffective Assistance of Counsel
Petitioner next claims that his counsel was ineffective. In Strickland v. Washington, 466 U.S. 668 (1984), the United States Supreme Court established a two-prong test for evaluating claims of ineffective assistance of counsel. A petitioner seeking relief must demonstrate that counsel's performance was deficient and that the deficient performance prejudiced his defense. See Strickland, 466 U.S. at 697.
To prevail on the deficiency prong, petitioner must demonstrate that counsel's conduct fails to meet the constitutional minimum guaranteed by the Sixth Amendment. See Styron v. Johnson, 262 F.3d 438, 450 (5th Cir. 2001). "Counsel's performance is deficient if it falls below an objective standard of reasonableness." Little v. Johnson, 162 F.3d 855, 860 (5th Cir. 1998). Analysis of counsel's performance must take into account the reasonableness of counsel's actions in light of all the circumstances. See Strickland, 466 U.S. at 689. "[I]t is necessary to 'judge . . . counsel's challenged conduct on the facts of the particular case, viewed as of the time of counsel's conduct.'" Lockhart v. Fretwell, 506 U.S. 364, 371 (1993) (quoting Strickland, 466 U.S. at 690). Petitioner must overcome a strong presumption that the conduct of his counsel falls within a wide range of reasonable representation. See Crockett v. McCotter, 796 F.2d 787, 791 (5th Cir. 1986); Mattheson v. King, 751 F.2d 1432, 1441 (5th Cir. 1985).
In order to prove prejudice with respect to trial counsel, petitioner "must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland, 466 U.S. at 694. In this context, a reasonable probability is "a probability sufficient to undermine confidence in the outcome." Id. In making a determination as to whether prejudice occurred, courts must review the record to determine "the relative role that the alleged trial errors played in the total context of [the] trial." Crockett, 796 F.2d at 793.
Petitioner bears the burden of proof when asserting an ineffective assistance of counsel claim. Petitioner "must demonstrate, by a preponderance of the evidence, that his counsel was ineffective." Jernigan v. Collins, 980 F.2d 292, 296 (5th Cir. 1993); see also Clark v. Johnson, 227 F.3d 273, 284 (5th Cir. 2000). If a court finds that petitioner has made an insufficient showing as to either of the two prongs of inquiry, i.e. deficient performance or actual prejudice, it may dispose of the claim without addressing the other prong. Strickland, 466 U.S. at 697.
A claim of ineffective assistance of counsel is a mixed question of law and fact. Moore v. Cockrell, 313 F.3d 880, 881 (5th Cir. 2002). Therefore, this Court must defer to the state court on such claims unless the state court's decision "was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States." 28 U.S.C. § 2254(d)(1).
In this case, petitioner argues that his counsel was ineffective in several respects. The Court will address each argument separately.
First, petitioner argues that counsel was ineffective in failing file a motion to quash the multiple bill of information on the ground that the "cleansing period" had not elapsed with respect to the predicate offenses. As noted previously in this opinion, the multiple bill of information was not defective in that respect and, therefore, a motion to quash would have had no merit. Counsel is not ineffective when he fails to make a meritless objection. See United States v. Kimler, 167 F.3d 889, 893 (5th Cir. 1999) ("An attorney's failure to raise a meritless argument . . . cannot form the basis of a successful ineffective assistance of counsel claim because the result of the proceeding would not have been different had the attorney raised the issue."); Sones v. Hargett, 61 F.3d 410, 415 n. 5 (5th Cir. 1995) ("Counsel cannot be deficient for failing to press a frivolous point."); Clark v. Collins, 19 F.3d 959, 966 (5th Cir. 1994) ("Failure to raise meritless objections is not ineffective lawyering; it is the very opposite.").
Petitioner also argues that counsel was ineffective in failing file a motion to quash the bill of information. However, as noted previously in this opinion, the bill of information was not defective. Accordingly, again, counsel cannot be found ineffective in failing to file a meritless motion to quash.
Petitioner next contends that his counsel was ineffective when he failed to object to the trial court's failure to instruct the jury that attempted obscenity is a specific intent crime. As noted, because neither petitioner, nor the state has supplied this Court with a copy of the jury instructions in this case, it cannot be determined whether the jury was in fact instructed as petitioner alleges. Nevertheless, even if the Court assumes that the trial court failed to instruct the jury that attempted obscenity is a specific intent crime, that counsel failed to object to the jury instructions, and that counsel could be considered to have performed dificiently in failing to so object, petitioner still is not entitled to prevail on his ineffective assistance of counsel claim because he has not demonstrated resulting prejudice as required under Strickland. As noted previously, the crime of obscenity is commited, inter alia, when the offender intentionally exposes his genitals "in any public place or place open to the public view with the intent of arousing sexual desire or which appeals to prurient interest or is patently offensive." La.Rev.Stat.Ann. § 14:106. Petitioner was found guilty of attempted obscenity, which required the jury to find that he, having a specific intent to commit the crime of obscenity, did or omitted an act for the purpose of and tending directly toward the commission of that crime. See La.Rev.Stat.Ann. § 14:27. Based on the uncontroverted evidence in this case, the jury obviously inferred from petitioner's actions (exposing his genitals and masturbating in public) that he had the specific intent to commit the crime of obscenity. There is no reason to believe that if the jurors had been expressly instructed that obscenity was a specific intent crime that the result of this proceeding would have been different.
As noted previously, Louisiana law allows specific intent to be inferred from the actions of the accused and the surrounding circumstances. State v. Brown, 907 So. 2d 1, 18 (La. 2005); State v. Maxie, 653 So.2d 526, 532 (La. 1995).
Petitioner also contends that his counsel was ineffective in failing to object to the introduction of evidence regarding the semen collected from crime scene on the basis that the state failed to establish that it was petitioner's semen and that no one had tampered with that evidence. In a related argument, he contends that his counsel was ineffective in not himself having the semen tested to prove that it did not come from petitioner. These claims have no merit.
As to the failure to object to the introduction into evidence of the semen collected from the crime scene, there was no valid basis for such an objection. Although petitioner questions the adequacy of the foundation, identification, and chain of custody regarding the semen, the issues raised by petitioner would not serve as a basis for finding the evidence inadmissible. The Louisiana Supreme Court has noted:
In order to introduce demonstrative evidence, it suffices if the foundation laid establishes that it is more probable than not that the object is the one connected with the case; the lack of positive identification or a defect in the chain of custody goes to the weight of the evidence rather than to its admissibility.State v. Sam, 412 So.2d 1082, 1086 (La. 1982). "The law does not require that the evidence as to custody eliminate all possibilities that the object has been altered." State v. Hansbro, 796 So.2d 185, 198 (La.App. 2nd Cir. 2001). writ denied, 827 So.2d 1177 (La. 2002); see also State v. Dunbar, 798 So.2d 178, 181 (La.App. 4th Cir. 2001). "Ultimately, a chain of custody or connexity of the physical evidence is a factual matter for the jury." State v. Addison, 871 So.2d 536, 551 (La.App. 5th Cir.), writ denied, 885 So.2d 584 (La. 2004). In this case, the objections suggested by petitioner would have been ultimately futile and, therefore, counsel cannot be found ineffective for failing to make them.
As to petitioner's claim regarding the failure of counsel to have an expert conduct DNA tests on the semen, that claim fails on at least two grounds. First, the United States Fifth Circuit Court of Appeals has noted that "unsupported claims regarding [an] uncalled expert witness are speculative and disfavored by this Court as grounds for demonstrating ineffective assistance of counsel." Evans v. Cockrell, 285 F.3d 370, 377 (5th Cir. 2002). In this case, petitioner has not met his burden to show "what results the scientific tests would have yielded" and that those results would have been favorable to him. See Evans v. Cockrell, 285 F.3d 370, 377 (5th Cir. 2002). Second, in analyzing an ineffective assistance of counsel claim, "[t]actical and strategical decisions of counsel if based on informed and reasoned practical judgment will not be second-guessed." Ransom v. Johnson, 126 F.3d 716, 721 (5th Cir. 1997); see also Lamb v. Johnson, 179 F.3d 352, 358 (5th Cir. 1999). In this case, counsel chose not to have DNA tests performed on seminal fluid found on the street where an eyewitness testified that she saw his client, who was apprehended and identified immediately after the incident, masturbating. That tactical decision not to run the risk of compounding the damning evidence against petitioner by securing a DNA test was hardly unreasonable. See Thompson v. Cain, 161 F.3d 802, 813-14 (5th Cir. 1998).
Accordingly, petitioner has failed to demonstrate that the state court's decisions regarding his ineffective assistance of counsel claims were contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States. Applying the AEDPA's deferential standard, this Court rejects petitioner's claims that his counsel was ineffective.
Motion to Suppress
Petitioner claims that at the probable cause hearing held on June 4, 1999, Officer Denis DeJean was allowed to testify regarding a technician's collection of the semen from the crime scene despite the fact that DeJean was not present when that evidence was collected. Petitioner argues that because a proper foundation was not laid for admission of the evidence, it should have been suppressed.To the extent that petitioner is arguing that the trial court erred in admitting the evidence at the probable cause hearing, he clearly is not entitled to federal habeas corpus relief. The determination regarding probable cause is made at the preliminary examination. La.C.Cr.P. art. 295. There is no federal constitutional right to a preliminary examination. Harris v. Estelle, 487 F.2d 1293, 1296 (5th Cir. 1974); Wright v. Lensing, 1993 WL 8327, at *2 (E.D. La. Jan. 14, 1993). Therefore, because petitioner had no federal constitutional right to such a hearing, he clearly cannot be granted federal relief for any evidentiary errors made in such a hearing. Petitioner is in custody because of the separate and distinct finding that he was guilty by a jury after a full trial. What evidence was introduced at the probable cause hearing is of no consequence.
It is unclear whether petitioner is also arguing that the evidence was admitted without a proper foundation at trial. In any event, even if petitioner's claim is construed that broadly, he still is not entitled to relief. As noted previously, federal habeas corpus relief will not be granted based on erroneous evidentiary rulings unless "the wrongfully admitted evidence has played a crucial, critical, and highly significant role in the trial. . . ." Little v. Johnson, 162 F.3d 855, 862 (5th Cir. 1998). The evidence regarding the semen does not rise to that level in light of the other evidence of petitioner's guilt.
Because petitioner couches his claim in terms of "suppression" of the evidence, the Court, out of an abundance of caution, notes that petitioner has no valid suppression claim. Because the semen was collected from a public area, the Fourth Amendment would not appear to be implicated in any way. Moreover, in any event, Fourth Amendment claims generally are not reviewable in a federal habeas corpus proceeding. In Stone v. Powell, 428 U.S. 465 (1976), the United States Supreme Court held: "[W]here the State has provided an opportunity for full and fair litigation of a Fourth Amendment claim, a state prisoner may not be granted federal habeas corpus relief on the ground that evidence obtained in an unconstitutional search and seizure was introduced at trial." Id. at 494 (footnote omitted); see also Janecka v. Cockrell, 301 F.3d 316, 320 (5th Cir. 2002). The Stone bar applies even if the state court rulings regarding the Fourth Amendment claims were in fact erroneous. Swicegood v. Alabama, 577 F.2d 1322, 1324 (5th Cir. 1978).
The United States Fifth Circuit Court of Appeals has interpreted "full and fair" consideration of a Fourth Amendment claim to include the availability of "at least one evidentiary hearing in a trial court and the availability of meaningful appellate review when the facts are in dispute, and full consideration by an appellate court when the facts are not in dispute." Caver v. Alabama, 577 F.2d 1188, 1191 (5th Cir. 1978) (construing O'Berry v. Wainwright, 546 F.2d 1204, 1213 (5th Cir. 1977)). The "opportunity" for full and fair litigation exists as long as the state provides the petitioner with processes by which he can obtain full and fair consideration, without regard to whether he actually utilizes those processes. Caver, 577 F.2d at 1192 ("An 'opportunity for full and fair litigation' means just that: an opportunity."); see also Janecka, 301 F.3d at 320. The state court record reflects that the trial court denied a defense motion to suppress after holding an evidentiary hearing on June 4, 1999. Petitioner could have challenged that ruling on direct appeal; however, the claim was not raised in either the appellate brief filed by counsel or the pro se supplemental brief filed by petitioner. Because petitioner was provided an evidentiary hearing on his motion to suppress and the opportunity for appellate review of the denial of that motion, he may not relitigate the claim in this Court.
State Rec., Vol. II of IV, minute entry dated June 4, 1999.
State Rec., Vol. I of IV.
State Rec., Vol. I of IV.
Double Jeopardy
Petitioner claims that he was subjected to double jeopardy. In the last reasoned state court decision addressing this claim, the Louisiana Fourth Circuit Court of Appeal rejected that claim, holding:
The defendant contends that his convictions for simple battery and attempted obscenity violates his right against double jeopardy. As stated above, the defendant was convicted of simple battery of Doretha Nickles after a bench trial on the same day the jury convicted him of attempted obscenity.
In State v. Jones, 97-2217, p. 6-9 (La.App. 4 Cir. 2/24/99), 731 So.2d 389, 393-395, writ denied 99-1702 (La. 11/5/99), 751 So.2d 234, this court discussed the law concerning double jeopardy:
Article 1, § 15 of the Louisiana Constitution of 1974, and the Fifth and Fourteenth Amendments of the United States Constitution, prohibit placing a person in jeopardy twice for the same offense. See also La. Code Crim. Proc. art. 591.
Article 596 of the Louisiana Code of Criminal Procedure, in pertinent part, provides that double jeopardy exists in a second trial when the charge is "[b]ased on a part of a continuous offense for which the defendant was in jeopardy in the first trial."
When evaluating double jeopardy claims, Louisiana courts have recognized both the Blockburger test and the "same evidence" test; however, courts have mainly relied upon the "same evidence" test. See, e.g., State v. Vaughn, 431 So.2d 763 (La. 1983). Nonetheless, the Louisiana Supreme Court has not adopted a "same transaction" test, which would prohibit, on double jeopardy grounds, prosecution for different crimes committed during one sequential and continuing course of conduct. City of Baton Rouge v. Jackson, 310 So.2d 596, 598 (La. 1975); State v. Gaines, 96-1850, p. 9 (La.App. 4 Cir. 1/29/97), 688 So.2d 679, 684, writ denied, 97-0510 (La. 9/5/97), 700 So.2d 503. Consequently, an accused who commits separate and distinct offenses during the same criminal episode or transaction may be prosecuted and convicted for each offense without violating the prohibition against double jeopardy. State v. Nichols, 337 So.2d 1074, 1076-78 (La. 1976); Gaines, supra, p. 9; 688 So.2d at 684.
La.R.S. 14:106 defines the crime of obscenity, in pertinent part, as "the intentional . . . exposure of the genitals . . . in any public place or place open to the public view with the intent of arousing sexual desire or which appeals to prurient interest or is patently offensive." An obscenity conviction can be sufficiently supported by the testimony of witnesses that a defendant's genitals were exposed and that he was masturbating. State v. Arabie, 507 So.2d 859 (La.App. 5 Cir. 1987). Further, defendant's masturbation is sufficient to indicate that his actions were intended to arouse him sexually. Id.
Simple battery is defined as "a battery committed without the consent of the victim." La.R.S. 14:35. Battery is "the intentional use of force or violence upon the person of another; or the intentional administration of a poison or other noxious liquid of substance to another."
In the case at bar, the defendant's two convictions do not violate his right against double jeopardy. While the two convictions arise from the same continuing set of circumstances, the evidence for each offense is completely separate and distinct. Evidence supporting the defendant's conviction for simple battery is based upon the victim's testimony that the defendant approached her from behind and choked her. Defendant's conviction for attempted obscenity is based upon the victim's testimony that after the defendant attacked her, she observed that the defendant had his pants down, his penis was exposed and he was masturbating.
This assignment is without merit.
Lewis, 776 So.2d at 619-20; State Rec., Vol. I of IV.
To the extent that petitioner is requesting that this Court review the state court's determination that his conviction did not violate double jeopardy protections under state law, the Court cannot oblige. Federal habeas corpus relief is available only for violations of federal constitutional law and, therefore, this Court does not sit to review alleged errors of state law. Narvaiz v. Johnson, 134 F.3d 688, 695 (5th Cir. 1998).
To the extent that petitioner is arguing that his rights under the federal Double Jeopardy Clause were violated, the Court notes that the Fifth Amendment of the United States Constitution provides that no person shall "be twice put in jeopardy of life or limb" for "the same offence." U.S. Const. amend. V. "The fifth amendment guarantee against double jeopardy is enforceable against the states through the fourteenth amendment." Rogers v. Lynaugh, 848 F.2d 606, 611 (5th Cir. 1988). The United States Fifth Circuit Court of Appeals has noted:
The Fifth Amendment's double jeopardy clause protects a criminal defendant against, inter alia, "multiple punishments for the same offense." We apply the Blockburger v. United States[, 284 U.S. 299 (1932),] test to determine whether two different statutes punish the same offense. Blockburger requires us to compare the two statutes at issue and ask "whether each provision requires proof of an additional fact which the other does not." If either statute contains no element not also found in the other statute, the statutes "fail" the Blockburger test and the defendant may not be punished under both of them "in the absence of a clear indication of contrary legislative intent". Two statutory offenses need not be identical to constitute the same offense for double jeopardy purposes. The Blockburger inquiry focuses on the statutory elements of the offenses, not on their application to the facts of a specific case before the court. Thus, the question is not whether this violation of [the first statute] also constituted a violation of [the second statute], but whether all violations of the former statute constitute violations of the latter. United States v. Singleton, 16 F.3d 1419, 1422 (5th Cir. 1994) (emphasis in original) (footnotes omitted).
"A double jeopardy claim is a question of law." Shute v. State of Texas, 117 F.3d 233, 238 (5th Cir. 1997). Therefore, this Court must 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." 28 U.S.C. § 2254(d)(1).
In the instant case, it is clear that the obscenity statute requires proof of additional facts which the simple battery statute does not, and vice versa. Therefore, petitioner's convictions for violating both of those statutes does not violate the protections afforded by the federal Constitution's Double Jeopardy Clause.
Petitioner has failed to meet the AEDPA's requirement that he demonstrate that the state court's denial of his double jeopardy claim was contrary to, or involved an unreasonable application of, clearly established federal law, as determined by the Supreme Court of the United States. Accordingly, his double jeopardy claim should be rejected.
RECOMMENDATION
Accordingly, IT IS RECOMMENDED that the petition for federal habeas corpus relief filed by Sugar Ray Lewis be DISMISSED WITH PREJUDICE.
A party's failure to file written objections to the proposed findings, conclusions, and recommendation contained in a magistrate judge's report and recommendation within 10 days after being served with a copy shall bar that party, except upon grounds of plain error, from attacking on appeal the unobjected-to proposed factual findings and legal conclusions accepted by the district court, provided that the party has been served with notice that such consequences will result from a failure to object. Douglass v. United Services Auto. Ass'n, 79 F.3d 1415, 1430 (5th Cir. 1996) (en banc).