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Mathieu v. Tanner

United States District Court, E.D. Louisiana

October 1, 2014

JOHN W. MATHIEU, SR.
v.
ROBERT C. TANNER, WARDEN, SECTION

REPORT AND RECOMMENDATION

JOSEPH C. WILKINSON, Jr., Magistrate Judge.

This matter was referred to a United States Magistrate Judge to conduct hearings, including an evidentiary hearing, if necessary, and to submit proposed findings 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. Upon review of the entire record, I have determined that a federal evidentiary hearing is unnecessary. See 28 U.S.C. § 2254(e)(2).[1] For the following reasons, I recommend that the instant petition for habeas corpus relief be DENIED and DISMISSED WITH PREJUDICE.

I. STATE COURT PROCEDURAL BACKGROUND

The petitioner, John W. Mathieu Sr., is a convicted inmate currently incarcerated in the B.B. "Sixty" Rayburn Correctional Center in Angie, Louisiana.[2] On October 31, 2005, Mathieu was charged by bill of information in Jefferson Parish with one count of second degree kidnapping with a gun.[3] He was separately charged under a different case number with stalking and unlawful carrying of a weapon.[4] The stalking charge was dismissed by the district attorney on June 29, 2006.[5] The Louisiana Fifth Circuit Court of Appeal summarized the facts of the case as determined at the trial of the kidnapping and weapons charge in relevant part as follows:

Terry Mathieu (hereafter "Ms. Mathieu") testified she is the defendant's ex-wife. She said they were married for twenty-three years, but separated on August 4, 2004 and were divorced in December 2004. According to Ms. Mathieu, from August 2004 until the date of the incident on July 16, 2005, the defendant constantly called her on the phone, sent her letters, and went to her place of employment, the Walgreens store at 678 Terry Parkway in Gretna, Louisiana. Eventually she stopped all contact.
On the date of the incident, Ms. Mathieu was working the 8:30 a.m.-5:00 p.m. shift, the same as she worked during her marriage to the defendant. After work, she walked to her vehicle, a Jeep Cherokee, carrying two bags. After she opened the vehicle's door, she was (sic) felt she was being pushed. She turned and saw it was the defendant. Instinctively she put her hand on the horn and blew it to get attention. She felt pressure on her lower back. The defendant told her, "Don't do anything stupid, I have a gun." He pushed her in the car and she saw he had a gun in his hand. It was "directed in [her] direction, " but not pointed at her.
She denied that she got into the car voluntarily or that she voluntarily gave the defendant her car keys. Once she was in the car, she was crying and still trying to get attention from people in the parking lot. The defendant told her, "[S]ettle down.... I'm not going to hurt you. I just need to talk to you. You pushed me to this. You wouldn't talk to me." Ms. Mathieu described the defendant as nervous and sweaty. He drove them away from the parking lot.
Ms. Mathieu dialed 911 on her cell phone so that the emergency operator could listen to what was going on. As the defendant drove, he continued to shake the gun at her, telling her to "calm down, don't draw attention." During the recorded 911 conversation, the defendant threatened to kill himself. The defendant said he had pills that he was going to take to do himself in, and said he wanted Ms. Mathieu to stay with him until the end. When Ms. Mathieu asked the defendant why he brought a gun, he did not reply. Ms. Mathieu testified that the defendant never knew their conversation was being recorded.[6]
With Ms. Mathieu in the vehicle, the defendant drove to Kiln, Mississippi. During the drive, as dusk was falling, Ms. Mathieu ended the 911 call because she was afraid that the defendant would see the light emanating from her cell phone as it got dark. Later, her cell phone rang and Ms. Mathieu answered it, at which point the defendant took the phone away from her.
During the course of the trip, the defendant "screamed" at her, accusing her of having sex with different men, breaking up their family, and taking everything away from him. He lay the gun in his lap, but occasionally picked the gun up as he was speaking and shook it in her direction.
Ms. Mathieu testified she was in the car with the defendant and the gun for three to four hours. They ended up at a rest stop in Kiln, Mississippi. After they arrived at the rest area, the defendant started screaming at her again, making accusations, and again saying he was going to kill himself. According to Ms. Mathieu, she did not have an opportunity to escape. At some point the defendant stopped to get gas, but Ms. Mathieu could not recall where, or whether it was before or after they reached Kiln. He told her not to do "anything stupid" while he went in to pay for the gas. He put the gun in the front of his pants. She saw that while he was paying for the gas, he continued to watch her. She was "scared" and didn't know if he would start shooting.
Later, the defendant drove Ms. Mathieu back to Gretna. She said that throughout the three or four hour trip with the defendant, she feared she would be killed. The defendant put a microcassette tape in the vehicle's console that the defendant claimed would explain everything. Ms. Mathieu testified that when the defendant turned off the car engine, she jumped out and ran because she was afraid he was going to kill her. She ran to a nearby McDonald's restaurant; when she got there she turned and saw the defendant walking down a side street. She locked herself in the restaurant's bathroom for a while. Later, she came out and looked around; after ascertaining the defendant was not around, she went to the pay phone and called her mother. The police eventually arrived at the restaurant and Ms. Mathieu's vehicle was towed to the detective bureau.
Ms. Mathieu said that after she fled the vehicle the defendant still had her keys to it, as well as her cell phone. She identified the defendant in open court as the man who took her at gunpoint on July 16, 2005 from Walgreens.
The defendant himself conducted the cross-examination of Ms. Mathieu. In response to his questioning, she admitted that prior to July 16, 2005 she was aware that he carried around a gun, and on July 16, he did not make any threats to her and she was not physically harmed, except for being pushed. She said he stuck the gun in her back.
Linh Pham, Ms. Mathieu's co-worker, testified she was employed at the Walgreens store located at 678 Terry Parkway on the date of the incident. Pham had just arrived in the Walgreens parking lot at 5:00 p.m. to start her shift, when she saw a man following Ms. Mathieu as Ms. Mathieu left the store. As Ms. Mathieu opened her car door, the man pushed her into the vehicle. Pham testified she could tell from Ms. Mathieu's expression that she was terrified. It appeared to Pham that Ms. Mathieu was probably screaming and trying to tell her something was wrong.
Pham said that as she walked by Ms. Mathieu's vehicle, the defendant looked at her. Pham saw the defendant's full face, because the defendant stared directly into her face. The defendant drove away in the car, despite Pham's efforts to stop him. Pham described the five-minute incident as terrifying. She knew that something was terribly wrong. Pham told the manager that someone was "probably trying to kidnap somebody outside, " and the manager called the police. Pham said she identified the man whom she saw push Ms. Mathieu into her vehicle and drive away in a photographic lineup.
Jane Trucksis, a Walgreens employee, testified that she called 911 on the date of the incident because a customer and Pham told her that Ms. Mathieu had been kidnapped. Trucksis identified her voice on the 911 tape played in court. On cross examination conducted by the defendant, Trucksis said she identified the defendant as the abductor in her 911 call because Pham told her it was him.
Detective Jeffery Rodrigue of the Jefferson Parish Sheriff's Office testified he responded to a call received from a Walgreens employee reporting that a co-worker named Terry Mathieu had been forced into a vehicle by an unknown Hispanic male. The caller thought Ms. Mathieu was in danger, because she screamed for help and blew the vehicle's horn to get the attention of people in the area.
When Detective Rodrigue arrived at the scene on Terry Parkway, he learned that several phone calls had come into headquarters from a phone number they later learned was Terry Mathieu's, on which the operator could hear a woman screaming hysterically and asking for help because someone was pointing a gun at her. In the course of the investigation, Detective Rodrigue spoke to Pham and to Troy Barrios, Ms. Mathieu's boyfriend, who had been called by someone at Walgreens. Detective Rodrigue learned that Ms. Mathieu and the defendant had an extensive history of emotional and violent abuse that included several incidents in which Ms. Mathieu was held against her will. Detective Rodrigue obtained an arrest warrant for the defendant.
Detective Rodrigue also learned that Ms. Mathieu had been driving a maroon Jeep Cherokee on the day of the incident. The vehicle was later located at the Home Depot on Stumpf Boulevard. Subsequently, Ms. Mathieu informed the police that the vehicle contained a cassette tape made by the defendant, which the defendant had directed Ms. Mathieu to listen to "after all this is over." The cassette tape was recovered from the Jeep's console. It was reviewed and found to be a message from the defendant detailing his intentions to commit suicide because of his separation from Ms. Mathieu.
Deputy Mark Layrisson of the Jefferson Parish Sheriff's Office testified that photocopies of the defendant's picture were given to local motels and hotels, as part of the investigation. The Sheriff's Office subsequently received a call from the Luxury Inn in Marrero reporting that there was a guest matching the suspect's description. When deputies arrived, they observed the defendant through a window. The deputies approached him, identified him by his driver's license, and placed him into custody. A search of the defendant revealed that he had a firearm. Deputy Layrisson identified the defendant in open court as the man that he had placed into custody that day.
Detective Sergeant Kelly Jones of the Jefferson Parish Sheriff's office testified that she obtained a statement from the defendant. Detective Jones said the defendant's statement did not match the physical evidence obtained in the investigation.
In the defendant's statement, played for the jury, the defendant claimed that Ms. Mathieu started screaming after he startled her, as she opened the door of her vehicle. The defendant claimed that Ms. Mathieu jumped all the way into the passenger side of the vehicle over the center console and then she threw her keys at him. According to the defendant, Ms. Mathieu told him that she could not drive, because she was upset. The defendant claimed that he would have sat in the vehicle and spoken to Ms. Mathieu in Walgreens parking lot, but that she told him to drive.
The defendant said he got behind the wheel and drove toward Mississippi, while he spent the next thirty minutes trying to calm Ms. Mathieu down and assuring her she was not in danger. The defendant claimed Ms. Mathieu left with him voluntarily. The defendant said he took Ms. Mathieu to a Mississippi rest stop, where they talked. When they returned to Gretna, they parked at the Home Depot store on Stumpf Boulevard and talked again. The defendant said Ms. Mathieu then got out of the car and walked away, telling him to keep the Jeep. He claimed he called to Ms. Mathieu, telling her he still had her keys. Ms. Mathieu did not return, so he locked the vehicle's door. The defendant admitted seeing Ms. Mathieu run to McDonald's.
The defendant said he then bought a drink, sat in the park in Terrytown, and took some pills, which caused him to lose consciousness. He admitted, however, that he did not take the pills to kill himself. He said he only told Ms. Mathieu that he was going to take pills to kill himself because he was "messing with her." The defendant claimed the reason he still had Ms. Mathieu's cell phone when he was arrested was that Ms. Mathieu threw her cell phone at him during the incident, after he told her she could not call her son.
The defendant claimed that when he went to Walgreens that day, he did not have the nine millimeter semi-automatic gun later found on him during the search. He claimed that prior to going to Walgreens, he hid the gun under a concrete slab at the Terrytown Recreation Center tennis courts, and that he did not retrieve the gun until the next day. He said the gun belonged to his oldest son. He also said he never threatened Ms. Mathieu.
After the State completed presenting its case, the defendant rested his case without presenting any evidence.

(footnote in original) State v. Mathieu , 960 So.2d 296, 299-302 (La.App. 5th Cir. 2007); State Record Volume 10 of 16, Louisiana Fifth Circuit Court of Appeal Opinion, 06-KA-946, pages 3-9, May 29, 2007.

Mathieu was tried before a jury on June 12 and 13, 2006, and found guilty as charged of second degree kidnapping.[7] The court also found him guilty of the misdemeanor weapons charge.[8]

The court denied Mathieu's motions for a new trial and post-verdict judgment of acquittal at a hearing on June 29, 2006.[9] After waiver of legal delays, the court sentenced Mathieu on the kidnapping conviction to 30 years in prison at hard labor with the first two years without benefit of parole, probation or suspension of sentence.[10] The court also sentenced him on the misdemeanor charge to a concurrent term of six months in prison.[11] The state trial court later denied Mathieu's motion to reconsider the kidnapping sentence and for release without bail pending appeal.[12] Shortly thereafter, Mathieu filed a motion to recuse the trial judge.[13] The motion was denied by another judge of the court on October 26, 2006.[14] Mathieu's later-filed writ application seeking review of the denial of the motion to reconsider the sentence and for his release was denied by the Louisiana Fifth Circuit on December 14, 2006.[15]

On direct appeal of the kidnapping conviction to the Louisiana Fifth Circuit, Mathieu's appointed counsel asserted the following errors:[16] (1) The state trial court erred in permitting Mathieu to represent himself. (2) The state trial court imposed an excessive sentence. (3) Any errors patent on the face of the record were assigned as error.

On May 29, 2007, the Louisiana Fifth Circuit "conditionally affirm[ed]" Mathieu's conviction and sentence finding no merit in the latter two claims.[17] In addressing the first claim, the appellate court determined that the record failed to include documents and rulings necessary to confirm whether Mathieu's waiver of counsel was knowing and voluntary. Under its conditional ruling, the matter was remanded to the state trial court for an evidentiary hearing to determine whether Mathieu made a clear and unequivocal request to represent himself and whether the court made sufficient inquiries into his competency in knowingly and voluntarily waiving counsel. The court reserved Mathieu's right to appeal any such ruling. The Louisiana Supreme Court later denied Mathieu's writ application seeking review of the appellate court's conditional ruling.[18]

In the meantime, on remand, an evidentiary hearing was held on August 23, 2007, where Mathieu was represented by counsel, to determine the validity of the earlier decision to allow Mathieu to represent himself.[19] The court held that Mathieu had made a clear and unequivocal request to represent himself.

Subsequently, however, on August 27, 2007, the judge recused himself as a potential witness, and the matter was re-heard by a different judge on June 6, 2008.[20] Relying on the standards set forth in Faretta v. California , 422 U.S. 806 (1975), and related case law, the court held that each element of a valid and knowing waiver of counsel and a clear decision to self-represent were established by the record and transcripts of the various pretrial and trial proceedings.

Mathieu's appointed counsel appealed this ruling to the Louisiana Fifth Circuit asserting that it was error to permit Mathieu to represent himself.[21] The appellate court was dissatisfied with the evidentiary support and explanation of the state trial court's ruling and found that the trial court had not answered the questions posed on remand. On January 27, 2009, the state Fifth Circuit again remanded the matter to the trial court to conduct another evidentiary hearing to determine whether Mathieu had made a clear and unequivocal request to represent himself and whether the court made sufficient inquiries into his competency in knowingly and voluntarily making the waiver of counsel, again reserving Mathieu's right to appeal the ruling.[22]

On remand, another evidentiary hearing was conducted on May 11, 2009, at which Mathieu was represented by counsel and the original trial judge was called to testify.[23] Based on the record, the testimony and the argument of counsel, the court stated that it "den[ied] his post conviction relief, " although only the remand was before it at that time.[24]

Counsel then filed Mathieu's third appeal to the Louisiana Fifth Circuit, again arguing that Mathieu should not have been allowed to represent himself.[25] Mathieu also submitted a pro se brief asserting that his sentence was excessive, the state trial court abused its discretion in refusing to follow the sentencing guidelines and the appellate court erred in affirming the sentence.[26] Without ruling on the pro se issues, the Louisiana Fifth Circuit reversed Mathieu's conviction and sentence on September 28, 2010, finding that the record and the evidentiary hearing failed to establish waiver of counsel or a sufficient inquiry into Mathieu's competence to do so by the trial court.[27]

On review of the State's related writ application, however, the Louisiana Supreme Court found that the record as a whole supported the trial court's findings that Mathieu made a knowing and voluntary waiver of his right to counsel by his actions and that he had the capacity to do so voluntarily.[28] Thus, on April 11, 2011, the supreme court reversed the Louisiana Fifth Circuit and reinstated the conviction and sentence with direction for the state trial court to execute the sentence.[29]

Mathieu's conviction and sentence became final ninety (90) days later, on Monday, July 11, 2011, [30] when he did not file a writ application with the United States Supreme Court. Ott v. Johnson , 192 F.3d 510, 513 (5th Cir. 1999) (period for filing for certiorari with the United States Supreme Court is considered in the finality determination under 28 U.S.C. § 2244(d)(1)(A)), cert. denied, 529 U.S. 1099 (2000); U.S. Sup. Ct. Rule 13(1).

On January 17, 2012, Mathieu submitted to the state trial court an application for post-conviction relief supported by a memorandum in which he asserted the following grounds for relief:[31] (1) He was denied effective assistance of counsel based on nineteen (19) alleged errors delineated in the memorandum.[32] (2) He was denied the right to compulsory process in that he provided his counsel and the clerk of court with a list of witnesses and no subpoenas were issued. (3) The jury was unconstitutionally empaneled because potential jurors saw him in shackles during voir dire. (4) He was denied the right to a fair trial based on the errors listed under the first three claims. (5) The trial judge was biased against him based on fourteen (14) grounds listed in the memorandum.[33] In connection with the fifth issue, Mathieu also filed a motion to recuse the original trial judge from the post-conviction proceedings.[34] After its re-allotment and transfer, the motion to recuse was denied by another judge.[35]

On September 25, 2012, Mathieu's application for post-conviction relief was denied upon a finding that the claim of ineffective assistance of counsel was conclusory and meritless under the standards set forth in Strickland v. Washington , 466 U.S. 668 (1984). The court also barred review of the remaining claims as repetitive, citing La. Code Crim. P. art. 930.4(B), (C) for Mathieu's failure to raise the claims before or on direct appeal.[36]

The Louisiana Fifth Circuit subsequently found no error in either ruling and refused Mathieu's request for a rehearing.[37] The Louisiana Supreme Court denied Mathieu's related writ application without stated reasons on November 22, 2013, and denied his request for reconsideration on January 17, 2014.[38]

II. FEDERAL HABEAS PETITION

On March 19, 2014, the clerk of this court filed Mathieu's petition for federal habeas corpus relief in which he asserts eight (8) grounds for relief:[39] (1) He did not make a clear and unequivocal request to represent himself at trial. (2) He did not knowingly waive his right to counsel at trial. (3) The sentence was excessive. (4) He was denied effective assistance of counsel based on the various alleged errors listed in his state application for post-conviction relief. (5) He was denied the right to compulsory process when he provided his counsel and the clerk of court with a list of witnesses and no subpoenas were issued. (6) The jury was unconstitutionally empaneled because the potential jurors saw him in shackles during voir dire. (7) He was denied the right to a fair trial based on ineffective assistance of counsel, denial of the right to compulsory process and an improperly empaneled jury. (8) The trial judge was biased against him based on the fourteen (14) grounds listed in his state application for post-conviction relief.

In its response in opposition to Mathieu's federal petition, the State concedes the timely filing of the petition.[40] The State, addressing only seven of Mathieu's eight claims, [41] also contends that Mathieu did not exhaust state court remedies to the extent that he has expanded upon his arguments in connection with the claims of ineffective assistance of counsel and judicial bias. The State also argues that four of Mathieu's claims are in procedural default and the remaining issues are without merit.

III. GENERAL STANDARDS OF REVIEW

The Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), Pub. L. No. 104-132, 110 Stat. 1214, comprehensively revised federal habeas corpus legislation, including 28 U.S.C. § 2254. The AEDPA went into effect on April 24, 1996[42] and applies to habeas petitions filed after that date. Flanagan v. Johnson , 154 F.3d 196, 198 (5th Cir. 1998) (citing Lindh v. Murphy , 521 U.S. 320 (1997)). The AEDPA therefore applies to Mathieu's petition, which, for reasons discussed below, is deemed filed in this court on February 27, 2014.[43]

The threshold questions in habeas review under the amended statute are whether the petition is timely and whether the claims raised by the petitioner were adjudicated on the merits in state court; i.e., the petitioner must have exhausted state court remedies and must not be in "procedural default" on a claim. Nobles v. Johnson , 127 F.3d 409, 419-20 (5th Cir. 1997) (citing 28 U.S.C. § 2254(b), (c)).

The State concedes and I find that the petition was timely filed. As mentioned, the State argues that two legal theories within Mathieu's ineffective assistance and judicial ...


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