United States District Court, E.D. Louisiana
LEONARD E. BLACKBURN
WARDEN HOWARD PRINCE
SECTION " H" (5)
Leonard E. Blackburn, Plaintiff, Pro se, St. Gabriel, LA.
For Howard Prince, Warden, Defendant: Kathryn W. Landry, Kathryn W. Landry, LLC, Baton Rouge, LA.
REPORT AND RECOMMENDATION
MICHAEL B. NORTH, UNITED STATES MAGISTRATE JUDGE.
This matter was referred to the undersigned United States Magistrate Judge to conduct a hearing, 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 in the United States District Courts. 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). For the following reasons, IT IS RECOMMENDED that the petition for habeas corpus relief be DISMISSED WITH PREJUDICE.
I. Procedural history
Petitioner, Leonard E. Blackburn, is a state prisoner incarcerated in the Elayn Hunt Correctional Center, in St. Gabriel, Louisiana. On May 22, 2008, a jury found him guilty of one count of possession with intent to distribute cocaine and one count of possession of hydrocodone. On or about June 7, 2008, Blackburn was sentenced to fifteen years imprisonment at hard labor. On September 29, 2008, Blackburn pled guilty to a multiple bill of information. The trial court vacated the original sentence and sentenced him as a fourth-felony offender to twenty years imprisonment on his conviction for possession with intent to distribute cocaine.
Blackburn appealed his conviction and sentence. He asserted that the evidence was insufficient to convict him of possession with intent to distribute cocaine, and that the trial court erred in failing to impose a determinate sentence when it sentenced him to a single term of fifteen years imprisonment despite the fact that he was convicted on two separate counts. On June 12, 2009, the Louisiana First Circuit Court of Appeal affirmed his conviction and multiple offender sentence for possession with intent to distribute cocaine. However, the court of appeal remanded the matter to the trial court for imposition of sentence on the possession of hydrocodone conviction. 
On remand, the trial court sentenced Blackburn to five years imprisonment at hard labor for possession of hydrocodone, to be served concurrently with the sentence on count one. The trial court denied his motion for a new trial.
Blackburn appealed this conviction and sentence. He asserted four claims of error by counseled brief, which included the following: the trial court erred in imposing an excessive sentence; the trial court erred by failing to comply with the sentencing mandates of Louisiana Code of Criminal Procedure article 894.1; he was denied effective assistance of counsel as a result of counsel's failure to file a motion to reconsider sentence; and the trial court erred in its treatment of the motion for new trial. By pro se brief, he asserted counsel was ineffective in failing to prepare for trial and to investigate the case and either present an adequate defense or request a continuance. On December 22, 2010, the Louisiana First Circuit affirmed the conviction for possession of hydrocodone. However, the court of appeal vacated the sentence and remanded the matter to the trial court for resentencing, finding that the trial court's imposition of sentence violated Louisiana Code of Criminal Procedure article 873. The Louisiana Supreme Court denied his related supervisory writ application.
On remand, the trial court sentenced Blackburn again to five years imprisonment at hard labor for possession of hydrocodone, to be served concurrently to the sentence imposed on count one.
Blackburn once again appealed the sentence. He raised three counseled and six pro se assignments of error. His counseled assignments of error included: the five-year sentence for possession of hydrocodone was excessive; the trial court failed to comply with Louisiana Code of Criminal Procedure article 894.1; and ineffective assistance of counsel in failing to file a motion to reconsider sentence. His six pro se assignments of error included challenges to the affidavit of probable cause, denial of the motion to suppress, denial of preliminary examination and prosecutorial misconduct, denial of right of confrontation and cross-examination, withholding evidence of a crime lab report, and inability to prepare an adequate defense due to alterations in the bill of information. The court of appeal noted that all of the pro se claims related to convictions that were final, and thus were not subject to review in his appeal related solely to the resentencing for possession of hydrocodone. On May 2, 2012, the Louisiana First Circuit affirmed his sentence for possession of hydrocodone. He did not file a writ application with the Louisiana Supreme Court.
On or about September 20, 2012, Blackburn filed an application for post-conviction relief with the state district court. In his application, he asserted ineffective assistance of counsel based on counsel's (a) failure to file a motion for continuance to have adequate time to prepare a defense; (b) failure to object to the trial court's denial of his challenge for cause as to a juror; and (c) failure to inform him of the prosecution's plea offer of a twelve-year sentence. The district court denied that application as untimely and without merit on October 30, 2012. On November 14, 2012, Blackburn filed with the state district court a notice of intent to seek a supervisory writ of review in the Louisiana First Circuit. On November 19, 2012, the district court signed an order setting the return date for December 19, 2012. On or about November 19, 2012, Blackburn filed a motion to reconsider his application for post-conviction relief and a separate motion seeking a stay of the return date until after the district court ruled on that motion for reconsideration. On December 7, 2012, the district court denied Blackburn's motion for reconsideration and ordered a new return date of January 7, 2013 for filing a supervisory writ application with the Louisiana First Circuit. On January 14, 2013, Blackburn submitted his related supervisory writ application to the Louisiana First Circuit. Blackburn's supervisory writ application to the Louisiana First Circuit Court of Appeal was denied on March 13, 2013. His related writ application to the Louisiana Supreme Court was denied without comment on September 20, 2013.
On January 5, 2014, Blackburn filed his federal application for habeas corpus relief. In his petition, Blackburn asserts that trial counsel rendered ineffective assistance in failing to inform him about the State's offer of a twelve-year sentence. The State argues that the petition is untimely and that Blackburn has failed to exhaust his remedies in the state courts. Alternatively, the State argues that the claim should be denied on the merits.
II. Standards of Review
The Antiterrorism and Effective Death Penalty Act of 1996 (" AEDPA") comprehensively overhauled federal habeas corpus legislation, including 28 U.S.C. § 2254. Amended subsections 2254(d)(1) and (2) contain revised standards of review for pure questions of fact, pure questions of law, and mixed questions of both. The amendments " modified a federal habeas court's role in reviewing state prisoner applications in order to prevent federal habeas 'retrials' and to ensure that state-court convictions are given effect to the extent possible under law." Bell v. Cone, 535 U.S. 685, 693, 122 S.Ct. 1843, 152 L.Ed.2d 914 (2002) .
As to pure questions of fact, factual findings are presumed to be correct and a federal court 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." 28 U.S.C. § 2254(d)(2); see also 28 U.S.C. § 2254(e)(1) (" In a proceeding instituted by an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State court, a determination of a factual issue made by a State court shall be presumed to be ...