Opinion
Civil Action No. 05-1170.
May 5, 2006
REPORT AND RECOMMENDATION
Before this Court is a Petition for Writ of Habeas Corpus (Doc. #1) pursuant to 28 U.S.C. § 2254 filed by pro se petitioner Jennifer Denise Quiambao on June 24, 2005. Petitioner is an inmate in the custody of the Louisiana Department of Public Safety and Corrections. She is incarcerated at the Louisiana Correctional Institute for Women at St. Gabriel, Louisiana where she is serving the twenty year sentence imposed following her December, 2001 conviction for manslaughter in the Fourth Judicial District Court, Ouachita Parish.
The "mailbox rule" provides that a prisoner's federal pleadings should be considered to have been filed as of the date the pleadings were presented to the prison authorities for mailing. See Houston v. Lack, 487 U.S. 266, 270-71, 108 S.Ct. 2379, 101 L.Ed.2d 245 (1988). Plaintiff signed her pleadings on June 24, 2005. It is assumed that this was the date that petitioner presented her pleadings to the authorities for mailing.
This matter was referred to the undersigned for review, report, and recommendation in accordance with the provisions of 28 U.S.C. § 636 and the standing orders of the court. For the reasons that follow, it is recommended that the petition be DENIED.
STATEMENT OF THE CASE
The petition, accompanying memorandum of law, and exhibits, along with the published jurisprudence of the State of Louisiana establish the following relevant facts: Pre-trial and Trial ProceedingsOn December 13, 1999, the Ouachita Parish Grand Jury indicted petitioner on a charge of manslaughter. [Doc. 1, Exhibit H, Bill of Indictment] On August 31, 2001, she was found guilty as charged following trial by jury in the Fourth Judicial District Court. [Doc. 1-2, p. 11] On December 17, 2001 petitioner was sentenced to serve twenty years at hard labor. Her motion for reconsideration of sentence was denied. [Doc. 1-1, paragraph 3(b); Doc. 1 Exhibit A]
Direct Appeal
Petitioner appealed arguing five assignments of error: (1) insufficiency of evidence; (2) trial court erred when it admitted other crimes evidence; (3) trial court erred when it denied Motion for New Trial; (4) excessiveness of sentence; and (5) trial court erred in denying the Motion to Reconsider Sentence. [Doc. 1 Exhibits B and C] On December 11, 2002, petitioner's conviction and sentence were affirmed by the Second Circuit Court of Appeals. State of Louisiana v. Jennifer Denise Quiambao, 36,587 (La.App. 2d Cir. 12/11/2002), 833 So.2d 1103.; see also Slip Opinion, Doc. 1 Exhibit E] On or about December 19, 2002 petitioner filed a motion for rehearing. [Doc. 1, Exhibit F] On January 23, 2003, rehearing was denied. [Doc. 1 Exhibit G]
On February 13, 2003, petitioner filed an Application for Writ of Certiorari or Review in the Louisiana Supreme Court. This writ application asserted a single assignment of error, "The trial court committed reversible error in admitting evidence of other crimes under L.C.E. Art. 404(B) in this involuntary manslaughter case in which specific intent is not an element of the crime." [Doc.1 Exhibit H] On May 16, 2003, petitioner's writ application was denied. See State of Louisiana v. Jennifer Denise Quiambao, 2003-0477 (La. 5/16/2003), 843 So.2d 1130.
Post-Conviction Proceedings — Production of Documents
On June 30, 2003, petitioner filed a "Motion for the Production of Public Documents" in the Fourth Judicial District Court. She requested free copies of the preliminary hearing transcripts, jury voir dire, opening arguments, trial transcripts, closing arguments, the trial court's jury charge, and the sentencing transcript stating her particularized need for these documents as follows, "Petitioner claims that there were a number of errors made during the proceedings against her that were prejudicial to her defense. [citation omitted] Petitioner does not and cannot remember all these errors accurately without a review of the requested documents." [Exhibit I] This motion was apparently denied by the trial court because on or about July 31, 2003 petitioner filed an Application for Supervisory Writs in the Second Circuit Court of Appeals. Therein she reiterated her desire for the transcripts and other documents and again stated her particularized need as is set forth above. [Exhibit J] On September 18, 2003, the Second Circuit Court of Appeals determined that petitioner had not made the requisite showing of a particularized need and therefore denied her application for writs. The court did note that petitioner was entitled to other documents (none of which were the subject of her Motion for Production) and ordered their production ". . . as determined applicable to this applicant . . ." See State of Louisiana v. Jennifer Denise Quiambao, No. 38051-KH (La.App. 2d Cir. 9/18/2003). [Exhibit K] Sometime after December 8, 2003, petitioner's family purchased a copy of the trial transcript from the Ouachita Parish Clerk of Court. [Exhibit M, at p. 9]
Application for Post-Conviction Relief
On or about May 12, 2004, petitioner filed an Application for Post-Conviction Relief in the Fourth Judicial District Court raising ten claims for relief.
In Claim I Petitioner argued that she was denied her rights to effective assistance of appellate counsel, judicial review, due process, and appropriate punishment due to the incompleteness of the record of her case on appeal. She noted various deficiencies in the court record and argued that portions omitted were crucial to her success on appeal. [Exhibit M, pp. 5-9]
In Claim II she claimed that she was indicted by an unconstitutionally composed grand jury in which the trial court lacked jurisdiction to bring petitioner to trial. [id., pp. 10-17]
In Claim II-A she maintained that her constitutional rights under the Sixth and Fourteenth Amendments were violated when the Louisiana District Court unconstitutionally selected the foreperson from the grand jury venire before the remaining members of the grand jury were chosen by lot, La.C.Cr.P. art. 413(B). [id., pp. 18-20]
In Claim II-B she argued that she was constructively denied her Sixth Amendment Right to effective assistance of counsel and her Fourteenth Amendment Right to Due Process of Law when she was denied representation in her defense by qualified counsel during the time that the indictment proceedings were held regarding the charge lodged against her by the State of Louisiana, and thus, she was prevented from timely filing a motion to quash the indictment based upon the grand jury problems noted above. [id., pp. 21-22]
In Claim III she argued that she was denied effective assistance of counsel and denied her right to a fair trial and her right to due process of law. She claimed that her court-appointed counsel failed to investigate and prepare a defense. Specifically, she argued that counsel failed to investigate an alleged prior stabbing by the defendant of her victim. Further, counsel, she argued, did not pursue a not guilty by reason of insanity defense based upon "Battered Woman's Syndrome." She also argued that counsel failed to prepare witnesses and failed to call witnesses at trial. She argued that counsel did not adequately prepare or present her defense of self defense. She also argued that counsel refused to allow her the right to testify in her own defense and that had she been so permitted, she would have testified that her victim "walked around for several minutes after he was stabbed." This, she claimed, "would have explained the large amount of blood at the crime scene." [id. pp. 23-30]
In Claim IV she argued that she was denied effective assistance of counsel and denied her right to due process, to confront and cross-examine witnesses and to a fair trial by a fair and impartial jury. In this claim she argued that on October 8, 2001, the jury foreman wrote a letter to the trial judge complaining of juror misconduct. [See Exhibit L] Her attorney then filed a Motion for a New Trial; however, after a hearing convened on December 17, 2001, the motion was denied. She faults her attorney for not investigating and questioning all of the jurors. She claims that the refusal to allow the jurors a "smoke break" following their lunch during deliberation created an extraneous influence on the jurors which resulted in the guilty verdict. [id., pp. 31-33]
In Claim V she claimed that she was denied the right to effective assistance of counsel on appeal when counsel argued some but not all of the claims raised on appeal in her writ application to the Louisiana Supreme Court. [id., p. 34]
In Claim VI she maintained that the State did not reveal all the exculpatory material that should have been provided to the defense. She claimed that when she obtained the District Attorney's file through a public records request, several witness statements, crime scene photos and the 911 transcript were missing. She claims that had she had this evidence the result of the trial would have been different. [id., p. 35]
In Claim VII she claimed again that she was denied the right to due process and to a fair trial when the State was permitted to introduce prejudicial "other crimes evidence." [id., pp. 36-37]
Finally, in Claim VIII she argued that the cumulative effect of the errors deprived her of her right to a fair trial with a reliable verdict. [id., pp. 38-39]
On June 14, 2004, petitioner's Application for Post-Conviction Relief was denied. [Exhibit N] On June 30, 2004, petitioner filed a Notice of Intent to Seek Writs and requested the trial court to set a return date. [Exhibit O]
Thereafter, on July 12, 2004, petitioner submitted her writ application to the Second Circuit Court of Appeals. [Exhibit P] In this pleading, petitioner argued claims identical to those raised in her application for post-conviction relief. On August 12, 2004, the Second Circuit denied writs and sent notice of judgment to the petitioner. See State of Louisiana v. Jennifer Denise Quiambao, No. 39237-KH (La.App. 2d Cir. 8/12/2004). [Exhibit Q.]
On September 14, 2004, petitioner filed an Application for Writs in the Louisiana Supreme Court raising nine Assignments of Error or claims for relief.
In Claim I, petitioner argued that her equal protection rights were violated by the grand jury foreperson selection process. [Exhibit S, pp. 5-14]
In Claim II petitioner argued that she was denied assistance of counsel and due process when she was denied representation during the time that "the indictment proceedings were held." As a consequence, she was not able to file a timely motion to quash the grand jury which indicted her based upon equal protection grounds. [id., pp. 15-16]
In Claim III petitioner argued that she was denied effective assistance of counsel because her court appointed attorney failed to investigate and prepare a defense. Specifically she argued that counsel failed to investigate an alleged prior stabbing by the defendant of her victim. She further argued that her counsel did not pursue a "not guilty by reason of insanity" defense based upon "Battered Woman's Syndrome." She also argued that counsel failed to prepare witnesses and failed to call witnesses at trial. She argued that counsel did not adequately prepare or present her defense of self defense. She also argued that counsel refused to allow her the right to testify in her own defense and that had she been so permitted, she would have testified that her victim "walked around for several minutes after he was stabbed." This, she claimed, "would have explained the large amount of blood at the crime scene." [id., pp. 17-25]
In Claim IV she again claimed ineffective assistance of counsel and the denial of her right to confront and cross-examine witnesses. In this claim she argued that on October 8, 2001, the jury foreman wrote a letter to the trial judge complaining of juror misconduct. [See Exhibit L] Her attorney then filed a Motion for a New Trial; however, after a hearing convened on December 17, 2001, the motion was denied. She faults her attorney for not investigating and questioning all of the jurors. She claims that the refusal to allow the jurors a "smoke break" following their lunch during deliberation created an extraneous influence on the jurors which resulted in the guilty verdict. [Exhibit S, pp. 26-28]
In Claim V petitioner argued that she was denied effective assistance of appellate counsel when her court appointed appeal counsel argued some, but not all of petitioner's Assignments of Error in the writ application filed in the Louisiana Supreme Court. [id., p. 29]
In Claim VI petitioner argued that the ". . . State did not reveal all the exculpatory material that should have been provided . . ." Petitioner did not identify this allegedly exculpatory evidence, but merely claimed that certain witness statements and crime scene photos and the 911 transcript were not located in the District Attorney's file which she obtained through a public records request. [id., p. 30]
In Claim VII petitioner claimed that she was denied her right to due process when the state introduced prejudicial "other crimes evidence."
In Claim VIII petitioner argued that she was denied the right to effective assistance of appeal counsel and judicial review because the record on appeal was incomplete. [id. pp. 31-37]
Finally, in Claim IX petitioner argued that the cumulation of errors rendered the verdict unreliable. [id., pp. 38-39]
On June 17, 2005, writs were denied. State ex rel. Jennifer Quiambao v. State of Louisiana, 2004-2534 (La. 6/17/2005), 904 So.2d 692. [Exhibit T] Federal Habeas Corpus
Petitioner filed her federal habeas corpus writ on June 24, 2005, raising eleven claims for relief:
Claim I — Petitioner was denied equal protection of the law . . . based upon the intentional discriminatory system of selecting the Ouachita Parish Grand Jury Foreperson. [Doc. 1-2, pp. 17-29]
Claim II — Petitioner was constructively denied her . . . right to effective assistance of counsel . . . when she was denied representation in her defense by qualified counsel during the time that the indictment proceedings were held in regards to the charged lodged against her by the State of Louisiana. [Doc. 1-2, pp. 30-31]
Claim III — Petitioner was denied the effective assistance of counsel and denied her right to a fair trial and her right to due process of law . . . [Doc. 1-2, pp. 32-42]
Claim IV — Petitioner was denied the effective assistance of counsel and denied her right to due process, to confront and cross-examine witnesses and to a fair trial by a fair an impartial jury . . . [Doc. 1-2, pp. 43-46]
Claim V — Petitioner was denied the right to effective assistance of counsel on appeal . . . [Doc. 1-2, pp. 47-48]
Claim VI — The State did not reveal all the exculpatory material that should have been provided to the defense . . . [Doc. 1-2, p. 49]
Claim VII — Petitioner was denied her right to due process and to a fair trial . . . [Doc; 1-2, pp. 50-52]
Claim VIII — Petitioner was denied her rights to effective assistance of appellate counsel, judicial review, due process, and appropriate punishment due to the incompleteness of the record on appeal. [Doc. 1-2, pp. 53-55]
Claim IX — The trial court committed reversible error in admitting evidence of other crimes under L.C.E. article 404(B) in this involuntary manslaughter case in which specific intent is not an element of the offense. [Doc. 1-2, pp. 56-60]
Claim X — Petitioner was denied her right to due process . . . as there was insufficient evidence to support the verdict of guilty as charged. [Doc. 1-2, pp. 61-68]
Claim XI — The cumulation of errors in this case renders the conviction constitutionally unreliable. [Doc. 1-2, pp. 69 et seq.]
On October 27, 2005, this Court issued a Report and Recommendation (Doc. #6) recommending that: Claim I be denied and dismissed with prejudice as procedurally defaulted; Claim II be denied and dismissed with prejudice pursuant to Rule 4 of the Rules governing § 2254 cases in the United States District Courts because Petitioner is not entitled to relief; and, Count X be denied and dismissed with prejudice because Petitioner failed to avail herself of all available state court remedies. On January 19, 2006, Judgment (Doc. #16) was entered adopting the Report and Recommendation and dismissing Claims I, II, and X.
The remaining claims are currently before this Court.
LAW AND ANALYSIS
Standard of Review Habeas corpus relief is available to a person who is in custody "in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2254. The standard of review is set forth in 28 U.S.C. § 2254(d):
(d) An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim —
(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or
(2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.
Under the deferential scheme of § 2254(d), this court must give deference to a state court decision for "any claim that was adjudicated on the merits in State court proceedings" unless the decision was either "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), or the decision "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).
A decision is "contrary to" clearly established Federal law "if the state court arrives at a conclusion opposite to that reached by . . . [the Supreme Court] on a question of law or if the state court decides a case differently than [the Supreme Court] has on a set of materially indistinguishable facts." Dowthitt v. Johnson, 230 F.3d 733, 740-41 (5th Cir. 2000) citing Williams v. Taylor, 529 U.S. 362, 120 S.Ct. 1495, 1523, 146 L.Ed.2d 389 (2004). "The 'contrary to' requirement "refers to holdings, as opposed to the dicta, of . . . [the Supreme Court's] decisions as of the time of the relevant state-court decision." Dowthitt, 230 F.3d at 740 citing Williams, 120 S.Ct. at 1523. Under the "unreasonable application" clause, a federal habeas court may grant the writ only if the state court "identifies the correct governing legal principle from . . . [the Supreme Court's] decisions but unreasonably applies the principle to the facts of the prisoner's case." Dowthitt, 230 F.3d at 741 citing Williams, 120 S.Ct. at 1523.
Section 2254(d)(2) speaks to factual determinations made by the state courts. Dowthitt, 230 F.3d at 741. Federal habeas courts presume such determinations to be correct; however, the petitioner can rebut this presumption by clear and convincing evidence. Id. Thus, this court must defer to the state court's decision unless it was based on an unreasonable determination of the facts in light of the record of the State court proceeding. Id. citing 28 U.S.C. § 2254(d)(2).
Ineffective Assistance of Counsel
Petitioner alleges ineffective assistance of counsel in claims III, IV, V, and VIII: failure to argue Battered Woman's Syndrome and Self-Defense (Claim III), failure to investigate jury misconduct (Claim IV), failure to argue only one assignment of error (Claim V), and an incomplete record (Claim VIII).
Initially in her Petition for Writ of Habeas Corpus, Petitioner stated that two assignments of error were argued at the Louisiana Supreme Court. However, in Petitioner's response to the State's opposition, Petitioner clarified and stated that only one assignment of error had been argued.
To prevail on an ineffective assistance of counsel claim, a petitioner must establish that (1) his attorney's representation fell below an objective standard of reasonableness; and (2) there is a reasonable probability that, but for counsel's deficient performance, the outcome of the proceedings would have been different. Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 2064, 80 L.Ed. 2d 674 (1984). The burden is on the petitioner to show that counsel's representation fell below an objective standard of reasonableness. Id. at 688. The court's scrutiny is "highly deferential" and the court must apply a "strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance." Id. at 689-90.
Strickland's prejudice element requires a showing "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." Sayre v. Anderson, 238 F.3d 631, 635 (5th Cir. 2001) citing Strictland, 104 S.Ct. at 2068. A petitioner must affirmatively prove prejudice. Deville v. Whitley, 21 F.3d 654, 649 (5th Cir. 1994); Mangum v. Hargett, 67 F.3d 80, 84 (5th Cir. 1995); Earhart v. Johnson, 132 F.3d 1062, 1066 (5th Cir. 1998). Self-serving conclusory statements that the outcome would have been different "fall far short of satisfying Strickland's prejudice element." Sayre, 238 F.3d at 635. Moreover, allegations of a mere possibility of a different outcome are insufficient to establish prejudice. Lamb v. Johnson, 179 F.3d 352, 359 (5th Cir. 1999).
The Strickland court outlined the extent of prejudice that must be established by the defendant:
An error by counsel, even if professionally unreasonable, does not warrant setting aside the judgment of the criminal proceeding if the error had no effect on the judgment. Cf. United States v. Morrison, 449 U.S. 361, 364-65 (1981).
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 exists if the probability is sufficient to undermine confidence in the outcome.
When a defendant challenges a conviction, the question is whether there is reasonable probability that absent the errors the fact-finder would have a reasonable doubt respecting guilt.Strickland, supra, at 691-92.
Because both Strickland factors, that of deficient performance and prejudice, must be satisfied, "an ineffective assistance contention may be rejected on an insufficient showing of prejudice, without inquiry into the adequacy of counsel's performance." Strickland, 466 U.S. at 689-94. Petitioner must satisfy both prongs of Strickland, demonstrating both that counsel's performance was deficient and that the deficiency prejudiced the defense. Crane v. Johnson, 178 F.3d 309, 312 (5th Cir. 1999); Green v. Johnson, 160 F.3d 1029, 1035-36 (5th Cir. 1998). However, "[m]ere conclusory allegations in support of a claim of ineffective assistance of counsel are insufficient to raise a constitutional issue." Green, 160 F.3d at 1043.
Battered Woman's Syndrome and Self-Defense
Petitioner specifically argues that her defense attorney failed to provide her effective assistance of counsel by not presenting two alleged valid defenses: Battered Woman's Syndrome and self-defense. Petitioner alleges that her defense counsel failed to have her psychologically evaluated and failed to present expert testimony.
Under 28 U.S.C. § 2254(d)(1), a federal court may not grant habeas relief with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim "resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States." The state court previously ruled that there was sufficient evidence that Petitioner did not act in self-defense. See State of Louisiana v. Jennifer Denise Quiambao, 833 So.2d 1103 (La.App. 2 Cir. 2002).
The Court of Appeal of Louisiana, Second Circuit, addressed Quiambao's self-defense claim,
[Jennifer] concedes that she stabbed Bobby, but contends that it was in self defense. She argues that Bobby provoked the stabbing and was the instigator, leaving her no reasonable choice other than to defend herself. . . . Self-defense is justification for a killing only if the person committing the homicide reasonably believes he is in imminent danger of losing his life or receiving great bodily harm and that deadly force is necessary to save his life. . . . For a homicide to be justified, the offender must have had a reasonable belief he was in imminent danger of losing his life or receiving great bodily harm and that the killing was necessary, under the circumstances, to save himself from danger. (internal citations omitted)
Factors to consider in determining whether a defendant had a reasonable belief the killing was necessary are the excitement and confusion of the situation, the possibility of using force or violence short of killing and the defendant's knowledge of the assailant's bad character. Although there is no unqualified duty to retreat, the possibility of escape is a factor to consider in determining whether a defendant had a reasonable belief that the use of deadly force was necessary to avoid the danger. When a defendant in a homicide case claims self-defense, the state has the burden of establishing beyond a reasonable doubt that the defendant did not act in self-defense. (internal citations omitted)
We have closely reviewed the evidence. Bobby strongly provoked Jennifer by shouting at her and calling her offensive names. However, Jennifer inflicted the first physical blow, and in her statement she admitted striking him more than once. He provoked her further by hitting her between the legs. Jennifer brandished the knife and threatened him; according to her recorded statement, after this type of threat, he would "usually" leave her alone. By her own admission, everything "got out of control," and she did not realize she had stabbed him until she saw gushing blood. Viewed in the light most favorable to the State, this conduct was the result of provocation that deprived Jennifer of her self-control and cool reflection. (internal citation omitted)
Moreover, there is nothing in her recorded statement to suggest that Jennifer rationally believed she was in danger of death or great bodily harm, a point noted by Dep. Washington. She indicated that confrontations like this were not uncommon, and ended harmlessly. Ms. Downs testified that Jennifer appeared to be defending herself, but she did not witness the actual stabbing. Mr. Kelly, the investigator, theorized that scratches and abrasions on Jennifer's right forearm were defensive, but he admitted they could also have been offensive. By contrast, Dr. Hill testified that the only bruise he noted on her arm was not really consistent with a striking motion. Viewed in the light most favorable to the State, this evidence shows beyond a reasonable doubt that Jennifer did not act out of a rational belief that she was in danger of death or great bodily harm. (internal citation omitted)State of Louisiana v. Jennifer Denise Quiambao, 833 So.2d 1103, 1106-08 (La.App. 2 Cir. 2002).
This Court may not grant habeas relief based on Petitioner's claim that her counsel failed to argue self-defense because the state court previously adjudicated the self-defense argument. Furthermore, the state court's decision was not contrary to Federal law as determined by the United States Supreme Court.
As for Petitioner's argument that her counsel failed to argue Battered Woman's Syndrome, no evidence has been presented to support a claim for Battered Woman's Syndrome and therefore, counsel was not ineffective. The evidence at trial revealed that Petitioner and the victim had been divorced from approximately two years. Petitioner lived with her parents and three children. The victim worked offshore and had spent the night on the living room couch, as he often did to spend time with his children. The State presented "other crimes evidence" of the Petitioner threatening the victim and stabbing the victim in the past. Petitioner has provided no evidence that a mental evaluation was required or that a Battered Woman's Syndrome argument was relevant. In her reply to the State's opposition, Petitioner states that she "firmly believes that she was in imminent danger of losing her life or receiving great bodily harm." (Doc. #15-pg. 2) However, "[m]ere conclusory allegations in support of a claim of ineffective assistance of counsel are insufficient to raise a constitutional issue." Green, 160 F.3d at 1043.
Failure to Investigate Jury Misconduct
Petitioner alleges that her trial attorney was ineffective for his failure to investigate the jury misconduct that was reported to Judge Benjamin Jones, by Jury Foreman Thomas Foster. In his letter to Judge Jones, Foster alleged: 1) that the jurors were discussing the merits of the case among themselves; 2) some jurors made comments that they would do whatever they wanted to do when the judge instructed them that they could not watch television or read the newspaper; 3) numerous jurors refused to deliberate once they went to the jury room; and 4) several jurors requested a break so they could smoke a cigarette, but their requests were refused. Petitioner argues that her attorney was ineffective because he failed to investigate and interview the entire jury to find the extent of jury misconduct.
Petitioner's ineffective assistance of counsel is judged under the two-prong Strickland test: 1) deficient performance and 2) prejudice. In order to demonstrate prejudice under Strickland, a petitioner must show not only that had counsel acted in a different manner a new trial would have been granted, but also that, as a result of counsel's incompetence, the trial was rendered fundamentally unfair or unreliable. Lockhart v. Fretwell, 506 U.S. 364, 369 (U.S. 1993). "[T]he presence or absence of prejudice, both with respect to claims of ineffective assistance of counsel at the trial and appellate levels, hinges upon the fairness of the trial and the reliability of the judgment of conviction resulting therefrom." Goodwin v. Johnson, 132 F.3d 162, 174 (5th Cir. 1998).
The Court of Appeal of Louisiana, Second Circuit, considered the alleged jury misconduct when it addressed Petitioner's motion for a new trial. See State of Louisiana v. Jennifer Denise Quiambao, 833 So.2d 1103 (La.App. 2 Cir. 2002). In her motion for new trial, Petitioner argued that
the court should have allowed the jury foreman, Thomas Foster, to testify about his complaints of jury misconduct. . . . After extensive argument, the court denied the motion for new trial. . . . The jurors' discussion of the facts among themselves, although in violation of the trial court's instructions, was not shown to inject into the prejudicial information. . . . At the instant hearing, the court considered the jury foreman's letter in its entirety; despite the vigorous argument of counsel, the court found that Jennifer received a fair trial. In light of the finding that no outside influence or prejudicial extraneous information influenced the jury, we perceive no abuse of the court's discretion.
From the record, it appears that Petitioner's counsel "vigorously" argued her allegation of jury misconduct. Petitioner has not shown that she would have been granted a new trial had her attorney acted differently. The court's scrutiny is "highly deferential" and the court must apply a "strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance." Strickland at 689-90. Petitioner fails to meet her burden under Strickland. Failure to Argue Only One Assignment of Error
Petitioner was represented by Louisiana Appellate Project Attorney Wilson Rambo on appeal. Subsequent to Petitioner's conviction, Mr. Rambo perfected an appeal to the Second Circuit Court of Appeal alleging five assignments of error. The Second Circuit Court of Appeal affirmed Petitioner's conviction. See State of Louisiana v. Jennifer Denise Quiambao, 833 So.2d 1103 (La.App. 2 Cir. 2002).
Mr. Rambo resigned from the Louisiana Appellate Project to run for district court judge and was replaced by Paula Marx. Ms. Marx filed a writ application with the Louisiana Supreme Court. Petitioner claims that Ms. Marx was ineffective because she failed to argue all of Petitioner's assignment of errors to the Louisiana Supreme Court. Ms. Marx argued only one assignment of error — the admission of other crimes evidence.
The State argues that Petitioner has failed to show that she was prejudiced by Ms. Marx's arguing only one assignment of error at the Louisiana Supreme Court. The State contends that the decision to argue only one assignment of error was a strategy decision because it was the strongest issue, evidenced by Judge Caraway's dissent from the Second Circuit Court of Appeal decision in which he noted that he would reverse based upon the other crimes evidence issue.
Petitioner argues that if the remaining assignments of error had been argued, the Louisiana Supreme Court's decision would have been different. Petitioner states that the other crimes evidence may have been the strongest issue according to Ms. Marx, but if she had argued all of the errors, the cumulation of errors would have altered the Louisiana Supreme Court decision.
Petitioner's allegation does not survive Strickland's strict scrutiny. It is well settled that "a court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy." Strickland, 466 U.S. at 689 (internal quotation marks and citation omitted). "A fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel's challenged conduct, and to evaluate the conduct from counsel's perspective at the time." Id. To show ineffective assistance of counsel on appeal, the petitioner
must first show that his counsel was objectively unreasonable . . . in failing . . . to discover nonfrivolous issues and to file a merits brief raising them. If [he] succeeds in such a showing, he then has the burden of demonstrating prejudice. That is, he must show a reasonable probability that, but for his counsel's unreasonable failure to file a merits brief, he would have prevailed on his appeal.Smith v. Robbins, 528 U.S. 259, 285-286 (U.S. 2000). It is the petitioner who must overcome the presumption that defense counsel's performance fell within the broad range of reasonable professional assistance. Riley v. Cockrell, 339 F.3d 308, 315 (5th Cir. 2003).
Petitioner has provided no evidence that the outcome would have been any different had her counsel acted differently; therefore, Petitioner has failed to overcome the presumption that her counsel's performance fell within the broad range of reasonable professional assistance. Petitioner's claim of ineffective assistance of counsel based on her arguing only one assignment of error at the Supreme Court lacks merit.
Incomplete Record
In this assignment, Petitioner argues that her counsel was ineffective based upon her reliance upon an incomplete record. Petitioner alleges that the record lacked critical portions of the court proceedings. Specifically, Petitioner argues the record is missing pretrial hearings, the hearing on Amended Notice of Intent, jury voir dire, opening and closing statements, the jury instruction, and the verdict. She also alleges that portions of the testimonies of Teresa Dallimore, Laura Andardi, Renee Girault, Deputy David Coutcher, and Dana Marler are missing.
The State responded to Petitioner's allegations stating,
The record shows that the hearing on Amended Notice of Intent is on pages 210 through 290. The jury instruction in on pages 168 through 176. The complete testimony of Teresa Dallimore, as a state witness, starts at page 380 and ends at page 382. Dallimore's testimony as a defense witness in on page 410. Laura Ansardi's testimony begins on page 388 and ends on page 391. Renee Girault's testimony begins on page 385 and ends on page 387. David Coutcher's testimony begins on page 393 and ends on page 395. Dana Marler's testimony begins at page 412 and ends at page 413.
With regard to voire dire, the record shows that Petitioner's first Appellate Counsel, Wilson Rambo, sent a letter to Judge Jones indicating that transcription of the jury selection was not necessary. (R.p. 207). In the letter, Mr. Rambo, pointed out that the defense had six peremptory challenges left at the end of jury selection and all challenges for cause made by the defense were granted. As to the written jury verdict, the record contains the written polling of the jury (R.pp. 180-191) and responsive verdicts signed by the foreperson (R.p. 177).
The opening and closing statement were not designated as part of the record. No issues were raised on appeal regarding the opening and closing argument. Missing jury charges and counsel arguments are not evidentiary and have previously not been found to warrant reversal of a defendant's conviction. State v. Bright, 03-489 (La.App. 5 Cir. 10/28/03) 860 So.2d 196.
Doc. #14-2 pg. 17-18.
Petitioner contends that her records do not include all of the testimonies of the witnesses. She states that she is missing the testimony of Teresa Dallimore, Renee Girault, Laura Ansardi, Dana Nolen, and David Coutcher that was given on August 29, 2001. Petitioner also states that she had no knowledge of the letter from Mr. Rambo indicating that the transcription of the jury selection was not necessary. Petitioner argues that she was not consulted in this decision and is now proceeding pro se and requires all of her records. Petitioner contends that she does not have the written jury verdict and responsive verdicts signed by the foreperson and has no knowledge of what was included in the opening and closing remarks. She also states that there were three occasions where statements and tape recordings were played and she was not given copies of these statements. Petitioner argues that her record of the proceedings is incomplete and her counsel was ineffective when they failed to assign this as an error at her appeal.
As discussed above, counsel's performance on appeal is judged under the Strickland test.
A petitioner cannot demonstrate prejudice by showing that, but for counsel's deficient performance, he would have been entitled to a new trial under state law. Rather, a petitioner must demonstrate that counsel's deficient performance rendered the result of his trial unreliable or the proceeding fundamentally unfair. Mere conclusory allegations in support of a claim of ineffective assistance of counsel are insufficient to raise a constitutional issue.Green v. Johnson, 160 F.3d 1029, 1043 (5th Cir. 1998). Because Petitioner has alleged no specific facts to show that she was in any way prejudiced by her counsel's performance on direct appeal, her complaint fails the Strickland test.
Exculpatory Material
In Claim VI, Petitioner argues that exculpatory evidence was withheld. Petitioner states that several witness statements, crime scene photos, and the 9-1-1 telephone call transcript were missing from the copy of her file she requested from the district attorney's office. Petitioner argues that these documents would have materially affected the outcome of her trial, appeal, and application for post conviction relief.
Upon a defense request, the state must disclose evidence that is favorable to the defendant when it is material to the defendant's guilt or punishment. Brady v. Maryland, 373 U.S. 83 (1963). A defendant may not be denied exculpatory statements made by a witness other than the defendant, provided the statements are material and relevant to the issue of guilt or punishment. State v. Ates, 418 So.2d 1326 (La. 1982).
On April 20, 2006, this Court ordered the State to provide the undersigned with copies of the incident report, crime scene photos, 9-1-1 telephone call transcript, and the statements made by Francis Marler, Jason Marler, Huey Marler, and Cassandra Downs for an in camera inspection to determine whether the documents contain exculpatory material to which Petitioner was entitled under Brady. Upon review of the documents, this Court finds that they do not contain exculpatory material.
The State provided a copy of the incident report, copies of the crime scene photos, and the statements made by Francis Marler and Cassandra Downs. The information contained in these documents is consistent with the evidence that was presented at trial, and is not exculpatory. The undersigned finds nothing in this information that would have materially changed the outcome of her trial, appeal, or post-conviction relief.
The State remarked that it did not have the 9-1-1 telephone call transcript or statements by Jason Marler or Huey Marler in its possession. The incident report states that "No recorded statement was taken from Jason Marler" (incident report pg. 10). The incident report does summarize an interview with Huey Marler; however, it is clear that Huey Marler was at work when the incident occurred, and therefore any statement that may have been recorded would not have provided any additional details about the incident. It is also clear from the incident report that Jason Marler did not personally see the stabbing because he went outside to call 9-1-1; therefore, the 9-1-1 transcript would also not provide any additional material details.
After reviewing the documentation, the undersigned finds that no exculpatory evidence was withheld from Petitioner, and that her claim on this issue lacks merit.
Other Crimes Evidence
In Claims VII and IX, Petitioner argues that the trial judge erred in admitting other crimes evidence (Claim IX) and that she was denied the right to a fair trial (Claim VII).
Prior to trial, the State provided notice that it wanted to introduce evidence of other threats and attacks on the victim to show Petitioner's motive, intent, absence of mistake or accident, and state of mind. The State argued that intent was a crucial issue because Petitioner was convicted of manslaughter, a specific intent crime.
Petitioner argues that the trial judge erred in admitting other crimes evidence because the manslaughter, in this case, falls under the felony manslaughter or involuntary manslaughter statute, a general intent crime. Petitioner relies on the dissent issued by Judge Caraway when the Second Circuit Court of Appeal reviewed Petitioner's case. See State v. Quiambao, 833 So.2d 1103 (La.App. 2 Cir. 12/11/02). Judge Caraway states,
The manslaughter in this case falls, in my opinion, under La.R.S. 14:31(A)(2), the so-called felony manslaughter or involuntary manslaughter statute. It was "a homicide committed, without any intent to cause death or great bodily harm,". . . a general intent crime. . . . The manslaughter conviction in this case does not fall under La.R.S. 14:31(A)(1), the so-called "heat of blood" manslaughter. Manslaughter under that section is "a specific intent killing." [citation omitted]. The state's evidence in this case, in my opinion, was insufficient to prove a specific intent to kill or inflict great bodily harm.Id.
Petitioner argues that her manslaughter conviction was a general intent crime; however, the published Court of Appeals opinion, supra, suggests otherwise. The State argued that Petitioner was convicted of manslaughter, a specific intent crime. Petitioner has brought forth no evidence that she was indicted under the general intent manslaughter statute, La.R.S. 14:31(A)(2) rather than the specific intent statute, La.R.S. 14:31(A)(1). While Judge Carraway's dissent states that in his opinion the evidence was insufficient to prove specific intent, he does not state that the Petitioner was not charged under the specific intent provisions of the manslaughter statute. The decision on whether other crimes evidence was admissible was made prior to or during the trial and was based on the statute under which the defendant was charged, not on the ultimate outcome of the trial. The fact that one judge on the court of appeal expressed the opinion that the government did not ultimately prove specific intent does not render the evidentiary ruling retroactively erroneous.
A district court's decision to admit or exclude evidence of other crimes will not be overturned absent an abuse of discretion. State v. Scales, 655 So.2d 1326 (La. 1995). The Court of Appeals found that the evidence supported a finding of lack of mistake or accident and found no reversible error. The undersigned agrees and finds no violation of the petitioner's right to a fair trial on this basis.
Cumulative Error
Petitioner's final claim, Claim XI, alleges that the cumulation of errors committed in this case renders the conviction constitutionally unreliable. Given the above findings on Petitioner's assertions of error, no cumulative prejudice can be found. See United States v. Moye, 951 F.2d 59, 63 (5th Cir. 1992) (holding, "[b]ecause we find no merit to any of Moye's arguments of error, his claim of cumulative error must also fail.").
CONCLUSION
For the reasons stated above, IT IS RECOMMENDED that Petitioner's Petition for Habeas Corpus pursuant to 28 U.S.C. § 2254 (Doc. #1) be DENIED and Petitioner's Complaint be DISMISSED WITH PREJUDICE.Under the provisions of 28 U.S.C. § 636(b)(1)(C) and FRCP Rule 72(b), the parties have ten (10) business days from service of this Report and Recommendation to file specific, written objections with the Clerk of Court. A party may respond to another party's objections within ten (10) business days after being served with a copy thereof. A courtesy copy of any objection or response or request for extension of time shall be furnished to the District Judge at the time of filing. Timely objections will be considered by the District Judge before he makes a final ruling.
A PARTY'S FAILURE TO FILE WRITTEN OBJECTIONS TO THE PROPOSED FINDINGS, CONCLUSIONS AND RECOMMENDATIONS CONTAINED IN THIS REPORT WITHIN TEN (10) BUSINESS DAYS FROM THE DATE OF ITS SERVICE SHALL BAR AN AGGRIEVED PARTY, EXCEPT ON GROUNDS OF PLAIN ERROR, FROM ATTACKING ON APPEAL THE UNOBJECTED-TO PROPOSED FACTUAL FINDINGS AND LEGAL CONCLUSIONS ACCEPTED BY THE DISTRICT JUDGE.