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 U.S.C. § 2254(e)(2) (2006). For the following reasons, IT IS RECOMMENDED that the petition for habeas corpus relief be DISMISSED WITH PREJUDICE.
I. Factual and Procedural Background
The petitioner, George Cooks ("Cooks"), is a convicted inmate incarcerated in the Louisiana State Penitentiary in Angola, Louisiana. On May 28, 1992, Cooks was indicted by a Grand Jury in Orleans Parish for the first degree murder of Arnold Morris. Another man, Ernest Allen ("Allen"), was also charged with the same offense, on the same bill of indictment. Cooks entered a plea of not guilty to the charge on June 22, 1992.
The record reflects that Arnold Morris ("Morris") was the victim of a drive-by shooting which occurred at approximately 5:00 p.m. on Sunday, March 29, 1992, in the 900 block of Josephine Street in New Orleans, Louisiana.
Theodore Wesley was with Morris at the time of the shooting. Wesley left his aunt's house at 5:00 p.m. and was riding his bicycle when he saw Morris pass by him in a truck. Wesley grew up with Morris and they knew each other from the neighborhood. Morris stopped to pick Wesley up, but remained in the cab of the truck. As Wesley was putting the bicycle in the back of Morris' truck, a slow moving truck approached them. Wesley saw Cooks and Allen hanging out of the passenger window of the truck. As Cooks and Allen approached Wesley and Morris, they began shooting at them. Wesley knew Cooks and Allen from school, but he could not see who was driving the truck. Morris attempted to escape the gunfire by driving away, but struck a light pole. The truck with Cooks and Allen then pulled up near Morris' truck and shot at him again. The next thing Wesley remembered was speaking with the police at the hospital.
Wesley recalled telling a police officer at the hospital that Cooks and Allen shot him and Morris. He later identified them in a photographic lineup when police interviewed him at his home. Wesley also testified that his cousin, Charles Gatson, was coming from a nearby apartment complex's courtyard when the shooting occurred.
When the police arrived at the scene of the crime, no victims or witnesses were present. The officers were advised by the police dispatcher that the victims had been taken to Charity Hospital. The officers then went to the hospital where Officer Gross spoke with Wesley who gave him the names of the shooters. Officer Gross also observed Morris' truck while at the hospital and noted gunfire damage to the vehicle.
Officer Paulette Pitts Owen was already at Charity Hospital on another matter when the shooting victims arrived. Officer Owen was then assigned to cover the shooting incident. She observed shattered windows and bullet holes in the truck that brought Morris to the hospital. Morris was laying in the back of the truck and had multiple gunshot wounds. Wesley was transported to the hospital in another vehicle. Officer Owen wrote out the police report, although she did not interview the victims and the information in the report was relayed to her by another officer. She did not recall who gave her the description of the assailants' truck, which was listed in the report as "white."
Detective Marco Demma of the New Orleans Police Department Homicide Division initially investigated the scene of the shooting. At the scene he found eight empty 9mm cartridge casings, a bullet, a spent bullet, a jacket fragment and blood stains. However, no weapons were recovered. The homicide investigation was later transferred to Detective Jerry London.
At Charity Hospital, Dr. Beblieux treated Wesley, who sustained several gunshots wounds, including a graze wound to the left cheek, a wound to the left armpit, a chest wound, a wound to the scrotum, a wound to the right lower leg, and a wound which broke Wesley's spine in two places. Wesley was conscious and in pain, and only a single wound was non-life threatening. Dr. Deblieux testified that it was possible Wesley was in a state of shock after the shooting.
Two different weapons were used in the shooting. Morris sustained one shotgun wound and two gunshot wounds. The shotgun wound was the lethal injury, entering in Morris' chest cavity. The two nonlethal gunshot wounds were in his legs.
Upon arrival at Charity Hospital, Detective London viewed Morris' truck and noted four bullet holes in the driver's side of the truck. A pellet was recovered from the floor of the truck, and London observed blood in the bed of the truck. About a week later, at Wesley's home, London conducted the photographic lineups of Cooks and Allen. Wesley identified Cooks and Allen as the perpetrators. A photographic lineup was also conducted with Charles Gatson, Wesley's cousin, but he was unable to make an identification. London then arranged for the arrest warrants for Cooks and Allen. The police also received information from a Crimestoppers call identifying Cooks and Allen as the shooters.
Cooks and Allen were tried before a jury on March 21 and March 22, 1994, and were both found guilty as charged of first degree murder. On August 5, 1994, the Trial Court denied Cooks' motion for a new trial, and sentenced him to serve life imprisonment without the benefit of parole, probation, or suspension of sentence.
On direct appeal, Cooks' counsel asserted four errors: (1) the Trial Court erred in denying Cooks' request for a delay after his motion for new trial was denied; (2) the Trial Court erred in denying Cooks' motion to amend the indictment to delete an alias, denying the motion for mistrial based on the prosecutor's two references to the alias during opening statement, and denying the motion for mistrial based on references made by a prospective juror regarding alleged threats, which resulted in Cooks' bad character being put at issue from the outset of the case and Cooks being denied a fair trial; (3) the jury erred in determining that there was sufficient evidence to find beyond a reasonable doubt that Cooks was guilty of first degree murder; and (4) any error patent on the record.
The Louisiana Fourth Circuit affirmed Cooks' conviction and sentence on September 15, 1995. The Court of Appeal found that while the Trial Court did err in proceeding to sentence the defendants immediately after denying Cooks' motion for a new trial, rather than waiting for twentyfour hours thereafter, the error was harmless "as the sentence to be imposed was mandatory life imprisonment at hard labor without benefit of probation, parole or suspension of sentence." The Fourth Circuit further found that Cooks' other assignments of error were without merit.
On February 2, 1996, the Louisiana Supreme Court denied without reasons the writ application filed by Cooks' counsel.
However, prior to his direct appeal, which was handled by the Orleans Parish Indigent Defender Program, Cooks filed a pro se motion for a new trial based on newly discovered evidence of an eyewitness. The Trial Court never heard his motion, so Cooks filed a writ application to the Fourth Circuit Court of Appeal. On November 10, 1994, the Fourth Circuit granted the writ and remanded the case to the Trial Court for a hearing.
In 1996, after the Trial Court still did not hold the hearing, the Louisiana Supreme Court granted Cooks' writs and ordered the Trial Court to hold a hearing on the pending motion for new trial. The motion hearing was continued on multiple occasions in 1996 and it was ultimately set without a date.
On July 28, 1998, Cooks supplemented the pending motion for new trial with a supplemental motion for new trial based on newly discovered evidence obtained from the district attorney files. The alleged newly discovered evidence was a supplemental police report containing interviews of two undisclosed witnesses-Denise Robateau and George Soulier-as well as undisclosed statements taken down by police from the State's sole eyewitness, Theodore Wesley.
On October 6, 1998, the Fourth Circuit Court of Appeal granted a writ application filed by Cooks and ordered a hearing be held on his pending motions for new trial in the Trial Court within thirty days of the order. On November 20, 1998, the Trial Court finally denied the motion for a new trial. On February 2, 1999, the Fourth Circuit Court of Appeal denied Cooks' writ application seeking reversal of the Trial Court. On July 2, 1999, the Louisiana Supreme Court also denied Cooks relief.
However, while his application for a supervisory writ on the matter was still pending before the Louisiana Supreme Court, the Trial Court nullified its judgment denying his motion for a new trial based on a motion filed by counsel that Cooks retained during the interim. Then, on May 20, 1999, Cooks' counsel filed a post conviction relief application. The hearings on the motion for new trial and the post conviction relief application were subsequently continued multiple times in the Trial Court, and eventually both were set without a date.
While these matters were pending in the Trial Court for many more years, Cooks obtained a copy of a transcript of a hearing held on a motion for new trial for his co-defendant, Ernest Allen, in which Ms. Robateau, the undisclosed witness, testified. Based on this testimony, Cooks filed a supplemental petition for post conviction relief on August 4, 2011, asserting that his conviction was obtained in violation of the principles of Brady v. Maryland, 373 U.S. 83 (1963). The Trial Court subsequently denied Cooks' motion for a new trial/application for post conviction relief on September 9, 2011, finding that it was procedurally barred pursuant to La.C.Cr.P. Art. 930.8.
Cooks sought supervisory review of this denial in the Fourth Circuit Court of Appeal and on November 23, 2011, the court reversed the ruling, ordering Cooks' motion for post conviction relief and motion for a new trial be considered. The Fourth Circuit found that because the Trial Court granted a motion for nullity of its denial of relief, but had not conducted a hearing on the 1999 application for post conviction relief/motion for a new trial, the Trial Court's judgment that the supplemental application was time-barred was erroneous.
Following this reversal, Cooks asked that all prior pleadings be amended into one pleading. He also filed an amended supplemental post conviction relief application on February 13, 2012. The Trial Court held a hearing on his application on April 16, 2012. On November 13, 2012, the Trial Court entered its judgment denying Cooks' application for post conviction relief and motion for a new trial. The Fourth Circuit Court of Appeal denied his related writ application on January 17, 2013, finding no error, and the Louisiana Supreme Court also denied Cooks' subsequent writ application without additional stated reasons on January 17, 2014.
II. Federal Petition
On March 25, 2014, Cooks filed a petition for federal habeas corpus relief. In his petition, Cooks asserts a single theory for relief: the prosecution obtained his conviction in violation of the principles set forth in Brady, and its progeny. This claim rests on two grounds: (1) the prosecution withheld essential facts, depriving Cooks the opportunity to independently investigate and take advantage of exculpatory evidence; and (2) the prosecution withheld impeachment testimony contradicting the uncorroborated testimony of the sole eyewitness linking Cooks to the crime, thereby undermining confidence in the jury's verdict.
The State filed an answer and memorandum in opposition to Cooks' petition stating that the petition appears to be timely filed, and his claims are properly exhausted. The State argues that Cooks' claims are without merit and that he is not entitled to federal habeas relief.
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 no later than March 25, 2014. 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 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 the timeliness of the petition and the exhaustion of remedies of Cooks' claims. The State also does not raise a procedural default defense and no such defense is apparent from the record. The Court will proceed to address the substance of Cooks' claims.
IV. Standards of a Merits Review
The AEDPA standard of review is governed by § 2254(d) and the Supreme Court's decision in Williams v. Taylor, 529 U.S. 362 (2000). It provides different standards for questions of fact, ...