United States District Court, E.D. Louisiana
REPORT AND RECOMMENDATION
KAREN WELLS ROBY, 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. 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, Thaddeus Frith ("Frith") is a convicted inmate incarcerated in the Louisiana State Penitentiary in Angola, Louisiana. On July 29, 2008, Frith was charged by Bill of Information in Orleans Parish with possession of heroin with intent to distribute. Frith entered a plea of not guilty to the charge on August 6, 2008.
The record reflects that, on July 8, 2008, Detectives Dean Moore and Chad Perez of the New Orleans Police Department began a narcotics investigation in the 2600 block of Jackson Avenue in New Orleans. Detective Moore assumed a position near the middle of the block while Detective Perez remained in a patrol vehicle nearby. Detective Moore soon saw a man later identified as Frith standing in the middle of the block.
After about five minutes, an unknown black male wearing a red t-shirt approached Frith. After a brief conversation, the unknown male reached into his right rear pants pocket and retrieved an unknown amount of paper currency that he handed to Frith. Frith turned around and walked towards an alleyway next to an abandoned structure located at 2622 Jackson Avenue.
Frith walked past the first foundation pier, knelt down, and quickly picked up an unknown object from underneath the house with his left hand. He rose and placed the object in his right hand which he kept in a tight fist. By this time, the unknown male in the red t-shirt had walked to the corner of Jackson and Magnolia where a small grocery store was located. After exiting the alleyway, Frith walked toward the unknown male quickly passed the object in his right hand to him. After accepting the object, the unknown male immediately separated from Frith, walking along Jackson Avenue back towards St. Charles Avenue and then out of sight.
After about five minutes, Frith walked up Magnolia Street and out of Detective Moore's line of sight. Interested in the seller not the buyer, Detective Moore then radioed his partner to pick him up. The officers drove up Magnolia Street in the marked police unit until Detective Moore spotted Frith standing in a group of four or five other men just a few houses away from the intersection.
The detectives got out, identified themselves, and advised Frith of his rights and that he was under investigation for a possible narcotics violation. The officers returned to the abandoned structure at 2622 Jackson Avenue where Detective Moore found a clear plastic bag on the ground behind the first pier where he had seen Frith kneel down. A closer inspection of the bag revealed that it contained twenty (20) clear plastic capsules containing an off-white powder substance that he recognized to be heroin. Detective Moore also seized $209.00 in cash from Frith's right front pants pocket found during a search incident to his arrest.
Frith was tried before a jury on May 19, 2010, and was found guilty as charged. At a hearing held August 27, 2010, the Trial Court denied Frith's motions for a new trial and for postverdict judgment of acquittal filed by newly retained counsel. The court sentenced Frith on September 24, 2010, to serve thirty-three (33) years and four (4) months in prison at hard labor. The court also held a hearing on the State's multiple offender bill, and after the adjudication and waiver of legal delays, the court vacated the prior sentence and sentenced Frith as a multiple offender to serve thirty-three (33) years and four (4) months in prison at hard labor. On March 4, 2011, the Trial Court granted Frith's motion to reconsider the sentence and resentenced him to serve twenty (20) years in prison with the first five (5) years to be served without benefit of parole, probation, or suspension of sentence.
On direct appeal to the Louisiana Fourth Circuit Court of Appeal, Frith's retained counsel asserted four errors: (1) the verdict was contrary to the law and evidence; (2) the Trial Court erred in denying the motion for post-verdict judgment of acquittal; (3) the Trial Court erred in denying the motion for new trial; and (4) based on new, undisclosed information, the conviction was based on the incredible testimony of Detective Moore. On August 10, 2011, the Louisiana Fourth Circuit affirmed Frith's conviction and sentence finding the third claim was not subject to review on appeal and otherwise was without merit, the fourth claim was not properly raised on appeal for the first time, and the first two assignments of error were without merit.
On September 21, 2011, Frith's counsel filed a motion for new trial raising the new information claim. After a hearing held on December 13, 2011, the Trial Court denied the motion as meritless on December 19, 2011.
On April 13, 2012, the Louisiana Supreme Court denied without stated reasons the writ application filed by Frith's counsel following direct appeal. Frith's conviction and sentence became final ninety (90) days later, on July 12, 2012, 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) (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).
On April 10, 2013, Frith's counsel filed an application for post-conviction relief with the Trial Court which raised the following grounds for relief: (1) the State should have disclosed pretrial that Detective Moore was under federal investigation for obstruction of justice for filing false police reports and lying to federal authorities; (2) the conviction was based on testimony that was not subject to meaningful and complete cross-examination because of undisclosed information; (3) he was denied effective assistance of trial ...