United States District Court, E.D. Louisiana
SECTION " N" (4)
Emmett Messick, Plaintiff, Pro se, Angola, LA.
For N. Burl Cain, Warden, Defendant: Andrew Milton Pickett, LEAD ATTORNEY, District Attorney's Office (Orleans), New Orleans, LA.
REPORT AND RECOMMENDATION
KAREN WELLS ROBY, UNITED STATES 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 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. On June 6, 2013, the United States Fifth Circuit Court of Appeal authorized Messick to file this successive petition. Rec. Doc. No. 7; see also, In re Messick, No. 13-30168, (5th Cir. Jun. 3, 2013) (unp.). Upon review of the entire record, the Court has determined that this matter can be disposed of without an evidentiary hearing. See 28 U.S.C. § 2254(e)(2) (2006).
I. Factual and Procedural Background
The petitioner, Emmett Messick (" Messick"), is a convicted inmate incarcerated in the Louisiana State Penitentiary in Angola, Louisiana. On June 26, 1986, Messick was indicted by a Grand Jury in Orleans Parish for the second degree murder of Kelvin Thompson. Messick entered a plea of not guilty to the charge on July 8, 2006.
The record reflects that, on June 1, 1986, nineteen-year-old Kelvin Thompson was shot and killed while riding a bicycle along Chef Menteur Highway in New Orleans. At that time, Messick and his passenger, Harold " Tiny" Allen, were driving on Chef Menteur Highway. According to Allen, Messick pulled out his gun from under the driver's seat and pointed across the car towards the opened passenger window. He shot at Thompson and said, " I like to wing them f--ing n--gers." Allen then grabbed the gun and kept it in his possession until the two men arrived at Allen's home. At that point, the two men went their separate ways, and Messick kept his gun.
Messick thereafter went to the St. Bernard Parish home of his sister, Patricia Frey, to ask for money. She turned him away and he moved on to his other sister's home in LaPlace. When they did not answer the door, he drove off and shot at two street lights with his gun. As a result, he was stopped by St. Charles Parish Sheriff's deputies and was charged with illegally discharging a weapon and driving with a suspended license. Messick spent the night in jail on those charges. After his release the next day, he went to Frey's house at some point and told her that he had shot a boy who was riding a bicycle.
Tiny Allen later read about a young black man being shot to death while bicycling on Chef Menteur Highway. He feared that the victim was the man shot by Messick, and he contacted his attorney who in turn notified the police. Frey also contacted the police when she heard about the biker's death.
After Frey made her statement to the police, they obtained the gun seized from Messick at the time of his arrest in LaPlace. The officers determined that it was the same type of gun used in the Thompson murder. The officers obtained a warrant for Messick's arrest.
By this time, however, Messick had fled to Alabama. He returned several days later and turned himself in to the authorities at which time he was arrested and charged with the murder.
Messick was tried before a jury on December 15 and 16, 1986, and was found guilty as charged of second degree murder. The trial court sentenced him on December 23, 1986, to serve life in prison.
On direct appeal, Messick's counsel asserted four errors: (1) the verdict was contrary to the law and evidence; (2) the trial court erred in allowing the State to admit the expert testimony of Dr. Paul McGarry and FBI Agent Charles Spaht; (3) the trial court erred in allowing the State to introduce other crimes evidence; (4) the trial court erred in allowing the written statement of Patricia Frey into evidence. The Louisiana Fourth Circuit affirmed Messick's conviction and sentence on April 12, 1988, finding no merit in the first three claims and finding the fourth issue to be procedurally barred for lack of a contemporaneous objection.
On October 7, 1988, the Louisiana Supreme Court denied without stated reasons the writ application filed by Messick's counsel. His conviction and sentence became final ninety (90) days later, on January 5, 1989, because he did not file a writ application with the United States Supreme Court. Ott v. Johnson, 192 F.3d 510, 513 (5th Cir. 1999) (holding 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)); U.S. S.Ct. Rule 13(1).
At some point in 1991, Messick filed an application for post-conviction relief in which he raised four claims: (1) the trial court erred in its jury instruction regarding reasonable doubt; (2) the jury selection process was racially biased; (3) the sentence was excessive; and (4) he received ineffective assistance of counsel. The trial court denied the application as meritless on February 26, 1992. Messick did not seek review of this ruling.
On or about March 23, 1994, Messick filed a motion for the trial court to reconsider its prior post-conviction ruling on the issue of the reasonable doubt charge. The trial court denied relief because the defense had not entered a contemporaneous objection at trial. The Louisiana Fourth Circuit denied Messick's related writ application on May 31, 1994, finding no error in the trial court's ruling. On July 1, 1994, the Louisiana Supreme Court also denied Messick's writ application without stated reasons.
Over nine years later, on September 1, 2003, Messick submitted to the trial court another application for post-conviction relief arguing that the trial court lacked subject matter jurisdiction over his case because of the discriminatory and unconstitutional grand jury selection process. The trial court denied relief because the defense did not contemporaneously object to the selection process or file a motion to quash the grand jury. The Louisiana Fourth Circuit denied Messick's related writ application on July 21, 2004, finding no error in the trial court's ruling. The Louisiana Supreme Court also denied Messick's related writ application without stated reasons on June 24, 2005.
From this point forward, according to the parties, the record is somewhat incomplete due to the loss of some portions of it as a result of Hurricane Katrina. Based on the available information, the following events appear to have occurred and are otherwise conceded by the parties.
On March 18, 2008, Messick submitted a fourth application for post-conviction relief to the state trial court alleging two claims: (1) he was in possession of newly discovered affidavits, including those of Mike Gorgues and his sister, Patricia Frey, which reflect his actual innocence and provide a reason to allow him to renew his untimely post-conviction review; and (2) the State withheld exculpatory evidence newly discovered in an initial police report not previously provided to the defense. Submitted therewith (but not filed stamped until March 28, 2009), was a motion to correct the record. In that motion, Messick argued that, in February of " 2004, " he sent his sister, Patricia Frey, an application for post-conviction relief based on newly discovered evidence of his actual innocence for her to file with the state trial court.
Attached to the motion is a copy of a mail receipt indicating that an envelope was received by the Orleans Parish Clerk of Court on March 4, 2004. However, Messick later represents in his various pleadings that the original post-conviction application was not submitted to the state trial court until 2005, after he obtained affidavits from Frey and others to support his actual innocence claim. He indicates in his current federal petition that 2005 was the year in which he submitted that state application. The affidavits on which he so heavily relies also are not dated until January 11 and 12, 2005, and could not have been a part of a 2004 submission. In fact, he now claims that he did not reconcile with his sister until April of 2004, making a filing in February or March 2004 an absolute impossibility. It appears that the more accurate possibility, as urged by the State, is that Messick submitted his application in February or March of 2005 (not 2004) and it was misplaced or lost in the aftermath of Hurricane Katrina. Messick does not refute this conclusion in his reply.
Messick's state court pleadings further indicate that, when his inquiries disclosed that the 2005 pleading could not be located by the clerk of the state trial court, he submitted a duplicate application on July 18, 2006, raising the same arguments. He also attached to the motion to correct copies of two other mail receipts for envelopes to the Court and the District Attorney's Office on August 2 and August 17, 2006, respectively. The record does not contain any other proof of this filing in 2006.
Messick further claims to have supplemented the 2008 application on February 11, 2011, with claims that he had obtained new evidence contrary to the trial testimony of the coroner and related to the angle of the fatal gunshot.
The trial court considered his claims of new evidence of his innocence, including the affidavits from Frey and Gorgues, and denied relief on November 10, 2011, without making a determination as to the timeliness of the petition, and instead finding that nothing in the newly discovered evidence (affidavit or the police report) would warrant a new trial. The Louisiana Fourth Circuit denied Messick's related writ application on January 17, 2012, finding no error in the trial court's ruling. The Louisiana Supreme Court also denied Messick's writ application without stated reasons on September 21, 2012.
II. Federal Petition
On January 17, 2013, the Clerk of this Court filed Messick's federal petition for habeas corpus relief. Based on the limited remand from the Fifth Circuit, the only claims to be considered at this time are Messick's claims that there was insufficient evidence to support the verdict that was based on State coerced and perjured testimony as supported by the affidavits of Frey and Gorgues. The State filed an answer in opposition to Messick's petition arguing that the petition is not timely filed, the insufficient evidence claim is not exhausted, and the claim is otherwise without merit.
Messick, in response, contends that he began filing for relief in the state courts within one year of reconciling with his sister and locating Gorgues, making his federal petition timely. In addition, he claims that he would be entitled to equitable tolling and his claims have merit.
III. General Standards of Review
The Antiterrorism and Effective Death Penalty Act of 1996 (" AEDPA"), Pub. L. No. 104-132, 110 Stat. 1214,  applies to this petition, which is deemed filed in this Court by Messick under the federal mailbox rule on November 26, 2012. The threshold questions on habeas review under the amended statute are whether the petition is timely and whether the claim raised by the petitioner was adjudicated on the merits in state court; i.e., the petitioner must have exhausted state court remedies and the claims must not be in " procedural default." Nobles v. Johnson, 127 F.3d 409, 419-20 (5th Cir. 1997) (citing 28 U.S.C. § 2254(b), (c)).
As indicated above, the State contends that Messick's petition is not timely filed, and that he did not exhaust state court remedies on the issue of insufficient evidence based on the affidavits now presented. Messick did not specifically address the State's exhaustion defense and instead argues in his reply that his petition should be considered timely based ...