No. 99-3471, Section: "C".
July 7, 2000.
ORDER AND REASONS
Before this court is a petition for habeas corpus relief by Roger R. Smith, ("Smith") pursuant to 28 U.S.C. § 2254. As grounds for his relief, the petitioner makes seven claims: (1) the jurors did not apply the law as instructed by the court; (2) police entrapped Smith; (3) there was an unreasonable delay of petitioner's right to direct appeal; (4) the New Orleans Police Department deleted exculpatory evidence; (5) Petitioner was illegally arrested; (6) the court erred in sentencing Petitioner to life imprisonment; as this was not a mandatory sentence; and (7) the sentence of life imprisonment was excessive in light of the seriousness of the offense.
Upon review of the record, this Court has determined that the record is sufficient and that no evidentiary hearing is necessary. For the reasons set forth as follows, this petition is DENIED.
The petitioner is currently incarcerated in the Louisiana State Penitentiary at Angola, Louisiana. On October 18, 1996, Smith and his co-defendant, Oscar Frith, were charged by a bill of information with distribution of crack cocaine in violation of La.R.S. 4C:967. On October 22, 1996, the defendants both entered pleas of not guilty. A jury found Roger Smith guilty as charged on January 16, 1997. At his sentencing hearing on February 23, 1997, Smith was adjudicated a third felony offender and sentenced to life imprisonment Pursuant to La. R. 5. 15:529.1, the habitual offender statute.
Petitioner filed a motion for reconsideration of sentence, which was denied, and a motion for appeal, which was granted. On April 7, 1999, the Louisiana Fourth Circuit Court of Appeal affirmed Smith's conviction and sentence. State v. Smith, 734 So.2d 826 (La.App. 4th Cir. 1999). On April 22, 1999, petitioner filed a writ seeking review of the Louisiana Fourth Circuit decision. The Louisiana Supreme Court denied the writ application on October 1, 1999. State v. Smith, 747 So.2d 1138 (La. 1999) Thus, pursuant to La.C.Cr.P. art. 922(d), petitioners conviction became final on October 1, 1999. Petitioner then filed the instant petition pursuant to 28 U.S.C. § 2254 with this Court on November 3, 1999.
La.C.Cr.P. art 922(d) provides, in pertinent part:
If an application for a writ of review is timely filed with the supreme court, the judgment of the appellate court from which the writ of review is sought becomes final when the supreme court denied the writ.
For pleadings by prisoners acting pro se, the Fifth Circuit has recognized that a "mailbox rule" is applicable, and the date prison officials received the pleading from the plaintiff for delivery to the court is considered the time of filing for purposes of Antiterrorism and Effective Death Penalty Act ("AEDPA") considerations. See Cooper v. Brookshire, 70 F.3d 377, 379 (5th Cir. 1995).
The facts are taken in large part from the Fourth Circuit decision affirming the petitioners conviction. See Smith, 734 So.2d at 829-830.
ANTITERRORISM AND EFFECTIVE DEATH PENALTY ACT
The AEDPA applies to a case if it was filed after April 24, 1996. Lindh v. Murphy, 521 U.S. 320 117 S.Ct. 2059, 2060, 138 L.Ed. 2d 481 (1997). The provisions of the AEDPA apply, as Petitioner filed his application on November 3, 1999. Further, under the AEDPA, the petitioner's application for habeas relief was timely, as it was filed within a year from the date his conviction became final. 28 U.S.C. § 2241 (D)(1).
Preiser v. Rodriguez, 411 U.S. 475, 489, 93 S.Ct. 1827, 1836, 36 L.Ed.2d 439 (1973, holds that generally, exhaustion of adequate state remedies is a condition precedent to the invocation of federal judicial relief. In the instant matter, as Petitioner has raised all the issues contained in his petition for Habeas relief in his sole writ to the Louisiana Supreme Court, he has exhausted his state court remedies. Further, the State's response to the Petition for Habeas Relief conceded that the exhaustion requirement had been met.
See also 28 U.S.C. 2254(b), which states that a plaintiff cannot seek the intervention of a federal court until he has first sought and been denied relief in the state courts.
STANDARDS OF REVIEW
The AEDPA includes a comprehensive overhaul of 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 fact and law where there has been an "adjudication on the merits. An adjudication on the merits is a term of art that refers to whether a courts disposition of the case is substantive, as opposed to procedural." Miller v. Johnson, 200 F.3d 274, 281 (5th Cir. 2000).
Section 2254(d) provides in full:
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.
Determinations of questions of law and mixed questions of law and fact are reviewed under 28 U.S.C. § 2254 (d)(1) and receive deference 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." Hill v. Johnson, 210 F.3d 481, 485 (5th Cir. 2000). The United States Supreme Court has recently advised that:
Under the "contrary to" clause, a federal habeas corpus court may grant the writ if the state court arrives at a conclusion opposite to that reached by this Court on a question of law or if the state court decides a case differently than this Court has on a set of materially indistinguishable facts. Under the "unreasonable application" clause, a federal habeas court may grant the writ if the state court identifies the correct governing legal principle from this Court's decisions but unreasonably applies that principle to the facts of the prisoner's case.Williams. v. Taylor, ___ U.S. ___; 120 S.Ct. 1495, 1523 (2000) Hill, 210 F.3d at 485. Questions of fact found by the state court are "presumed to be correct . . . and we will give deference to the state court's decision unless it `was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.'" Hill, 210 F.3d at 485, quoting 28 U.S.C. § 2254 (d)(2).
In addition, the Fifth Circuit has articulated three factors which must be considered in order to determine whether a claim has been "adjudicated on the merits" for purposes of habeas review: (1) what state courts have done in similar cases; (2) whether the case's history suggests that the state court recognized any ground for not resolving the case on the merits; and (3) whether the state courts' opinions suggest reliance on procedural grounds rather than an adjudication on the merits. Miller v. Johnson, 200 F.3d at 281. If there was no "adjudication on the merits" of an exhausted and timely claim made by the petitioner, the claim becomes subject to de novo review. Id.
CLAIM ONE: JURY FAILED TO FOLLOW THE COURT'S INSTRUCTIONS
The petitioner asserts that the jury failed to follow the instructions given by the court. He calls this an "antithesis of a Cage claim," when it is really a claim that no reasonable jury could have found him guilty beyond a reasonable doubt on the evidence admitted at trial. As Jackson v. Virginia, 443 U.S. 307, 318, 99 S.Ct. 2781, 2788, implies, the correct inquiry is not whether the jury followed the court's instruction, but whether the evidence in the record could reasonably support a finding of guilt beyond a reasonable doubt. The decision of the Louisiana Fourth Circuit adequately addressed this issue as it stated:
Cage v. Louisiana, 498 U.S. 39 concerns a faulty instruction of "burden of proof" to the jury.
When assessing the sufficiency of evidence to support a conviction, the appellate court must determine whether, viewing the evidence in a light most favorable to the prosecution, any rational trier of fact could have found proof beyond a reasonable doubt of each of the essential elements of the crime charged.Smith, 734 So.2d at 8832, (citing Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); State v. Jacobs, 504 So.2d 817 (La. 1987)
Moreover, the finding of fact by a jury should be upheld unless it is shown to be clearly wrong or manifestly erroneous. Watson v. State Farm Fire Casualty Insurance Co., 469 So.2d 967 (La. 1985); Arceneaux v. Dominique, 365 So.2d 1330 (La. 1978) on remand 37C So.2d 1262, writ denied 374 So.2d 660 (La. 1979); Canter v. Koehring Co., 283 So.2d 716 (La. 1973). Although the petitioner asserts that the evidence, both direct and circumstantial, could not possibly have led a reasonable jury to conclude he was guilty beyond a reasonable doubt, this claim is without merit, as deference must be given to the judgment of the jury. Moreover, as the Louisiana Fourth Circuit noted, Officer Thomas testified that Smith gave him a rock of crack cocaine in exchange for a twenty dollar bill. Smith, 734 So.2d. at 831. Both parties agree that the object purchased by Thomas tested positive for crack cocaine. Id. 734 So.2d at 631. Other officers gave corroborative testimony. Id. at 831. Thus, the state produced sufficient evidence to establish that Smith sold crack cocaine to Officer Thomas.
CLAIM TWO: ENTRAPMENT
The petitioner alleges that Officer Thomas entrapped or enticed him to sell him crack cocaine. As the Louisiana Fourth Circuit noted,
The defendant claiming entrapment must prove the defense by a preponderance of the evidence and present exculpatory evidence that defeats culpability despite the fact that the State proved all essential elements of the crime.Smith, 734 So.2d at 831, (citing State v. St. Amant, 584 So.2d 724 (La.App. 4th Cir. 1991); State v. Byrd, 568 So.2d 554 (La. 1990))
Further, St. Amant states that the relevant inquiry on appeal is "whether any rational trier of fact, viewing the evidence in a light most favorable to the prosecution, could conclude that the defendant did not prove that he was entrapped by a preponderance of the evidence." St. Amant, 584 So.2d at 724. In undertaking this inquiry, the court must examine the defendant's predisposition to commit the crime as well as the conduct of the police. The petitioner did riot produce any evidence indicating he was entrapped by the police. The testimony of officer Thomas stated that Smith's co-defendant, Frith, found Smith, who was willing to sell Thomas crack cocaine. Smith willingly, and without inducement by the police, sold Thomas the crack cocaine.
In his petition, Smith claims that at the end of the trial there were individuals who were willing to sign affidavits stating that the petitioner did not use or sell drugs. As the state points out, this is irrelevant, as the petitioner does not claim that any of these people witnessed the events that led to this conviction.
Finally, the petitioner asserts that because the twenty dollar hill that Thomas used to buy the crack cocaine was never recovered, there was a problem in the chain of evidence. The petitioner cites Coleman v. State, 594 So.2d 229 (Ala.Crim.App. 1991), in support of this claim. However, in Coleman, the conviction was overturned because of a break in the chain of custody of the evidence as it was en route to be analyzed. Id. at 230. There, there was no testimony as to how the seized evidence was transferred from one officer to another. Id. at 230. In the case at bar, however, the disappearance of the twenty dollar bill is irrelevant in light of the testimony of Officer Thomas and the other police involved in the incident. Therefore, this claim is without merit.
CLAIM THREE: UNREASONABLE DELAY OF RIGHT TO DIRECT APPEAL
Smith further argues that there was an unreasonable delay in his appeal process. The Louisiana Fourth Circuit decision noted that an appeal was lodged in their court on October 6, 1997. Smith, 734 So.2d at 832. Although Smith had filed a pro se brief, his attorney subsequently filed another brief on his behalf in September of 1998.
Further, Smith contends that a delay of over a year and a half prevented him from obtaining affidavits from witnesses who would have testified on Smith's behalf. As the State has pointed out, this testimony would be irrelevant as Smith does not claim that any of these witnesses were present when the events leading up to this conviction transpired. Further, Smith has not specifically identified any possible witnesses.
Petitioner cites Hammontree v. Phelps, 605 F.2d 1371, 1379 (5th Cir. 1979) and Penson v. Ohio, 488 U.S. 75, 75, 109 S.Ct 346, 347, in support of this claim. Hammontree concerns a re-trial after a grant of habeas relief, and has nothing to do with a delay of a direct appeal. The petitioner in Penson was deprived of adequate representation. Neither of these cases are relevant to the petitioner's contentions. This claim is without merit.
CLAIM FOUR: DELETED AND FABRICATED EVIDENCE
Smith further claims that the videotape and audiotape evidence introduced at trial conflicted with the testimony of Officer Thomas. He claims that the videotape shows that Smith was wearing a beeper at the time of the incident. However, this is not in conflict with Officer Thomas's testimony, as he did not state whether Smith was wearing a beeper or not. Also, as the Fourth Circuit noted, "the defendant [Smith] has not shown how the beeper is relevant to the present case." Smith 734 So.2d at 832. Finally, as the video and audiotapes were introduced as evidence at. trial, the jury had an opportunity to view any discrepancy between the tapes and Officer Thomas s testimony. Therefore, this claim is also without merit.
CLAIM FIVE: ILLEGAL ARREST
The petitioner claims that because the officers handcuffed and searched two other men as well as the petitioner, but arrested only the petitioner, this amounts to an illegal arrest. Further, as no evidence was found on any of these men, including the petitioner, the petitioner claims that the police lacked the requisite probable cause necessary for an arrest.
However, the Louisiana Fourth Circuit correctly addressed this issue:
Probable cause to arrest without a warrant exists when the circumstances known to the officer justify a person of ordinary caution in believing the person to be arrested has committed a crime. State v. Raheem, 464 So.2d 293 (La. 1985); State v. Zayas, 93-1473 (La.App. 4th Cir. 5/26/94), 637 So.2d 1237. In the present case, Officer Thomas testified that defendant Smith sold him crack cocaine. The transaction was overheard by at least two other police officers. Thus, the officers had probable cause to arrest defendant Smith for distribution of crack cocaine.Smith, 734 So.2d at 832.
Moreover, the fact that the other two men who were handcuffed and searched were not arrested is irrelevant. Probable cause existed for the petitioner's arrest, which is all that is required for a legal arrest. Thus, this claim is without merit.
CLAIM SIX: THE LIFE SENTENCE WAS NOT MANDATORY
Smith also claims that the sentence of life imprisonment was not mandatory. It was, however, within the sentencing guidelines of La.R.S. 15:529.1, the Louisiana Habitual Offender Law. Smith was convicted of distribution of crack cocaine, which is a violation of the Uniform Controlled Substances Law, punishable by a minimum sentence of five years at hard labor. Smith had two prior convictions, for purse snatching and simple burglary. Thus, as a third felony offender, Smith's sentence of life imprisonment pursuant to La.R.S. 15:529.1, was appropriate. This claim is also without merit.
This statute provides, in pertinent part:
A. (1)(b) If the third felony is such that upon a first conviction, the offender would be punishable by imprisonment for any term less than his natural life then,
(ii) If the third felony or either of the two prior felonies is a felony defined as a crime of violence under R.S. 14:2 (13) or is a violation of the Uniform Controlled Dangerous Substance Law punishable by imprisonment for more than five years or any other crime punishable by imprisonment for more than twelve years, the person shall be imprisoned for the remainder of his life, without benefit of parole, probation or suspension of sentence.
CLAIM SEVEN: EXCESSIVE SENTENCE
The petitioner's final claim concerns the severity of his sentence. Smith was sentenced under the Louisiana Habitual Offender Law, La.R.S. 15:529.1. Pursuant to the guidelines established therein, upon the third felony conviction, if one of the offenses was a violation of the Uniform Controlled Substances Law punishable by more than five years imprisonment, the offender shall be sentenced to life imprisonment without possibility of parole, probation, or suspended sentence. La.R.S. 15:529.1(A)(1)(b)(ii)
In State v. Dorthey, 623 So.2d 1276 (La. 1993), the Supreme Court of Louisiana upheld the constitutionality of the habitual offender statute. See also State v. Madison, 345 So.2d 485 (La. 1977), State v. Badon, 338 So.2d 665 (La. 1976) and State v. Overton, 337 So.2d 1201 (La. 1976). However, The court in Dorthey allowed for some discretion in the sentencing process. They noted, "Although a sentence is within the statutory limits, it may still violate a defendant's constitutional protection against excessive punishment." Dorthey, 623 So.2d. at 1280. The excessiveness of a sentence was defined by the court in State v. Scott: "a punishment is constitutionally excessive if it makes no measurable contribution to acceptable goals of punishment and is nothing more than the purposeless imposition of pain and suffering and is grossly out of proportion to the severity of the crime." See State v. Scott, 593 So.2d 704, 710 (La.App. 4th Cir. 1991). See also State v. Caston, 477 So.2d 868 (La. App 4th Cir. 1985)
Also, in Rummel v. Estelle, 445 U.S. 263, 100 S.Ct. 1133, 63 L.Ed.2d 382 (1980), the Supreme Court upheld a life sentence for a person convicted of three non-violent crimes, specifically, passing a forged check, fraudulent use of a credit card, and obtaining money by false pretenses. These crimes yielded under $500 for the defendant, but the Court determined that as a matter of law, the sentence was not unconstitutional.
In light of the defendant's prior criminal history and the current conviction for distribution of crack cocaine, a sentence of life imprisonment is mandatory. As the Louisiana Fourth Circuit Court of Appeals stated, "the defendant's crimes were serious enough to warrant a life sentence." Smith 734 So.2d at 834. The current conviction violated the Uniform Controlled Substances Law, which is specifically addressed in the habitual offender statute. La.R.S. 15.529.1(A)(1)(b)(ii). Thus, when compared to punishments upheld in similar cases, and given the limitations on this Court's review of the state court's determination, life imprisonment does not appear to be an unconstitutionally excessive sentence. This claim is also without merit.
Accordingly, IT IS ORDERED that the application for writ of habeas corpus by Roger R. Smith pursuant to 28 U.S.C. § 2254 is DENIED.