United States District Court, E.D. Louisiana
ORDER AND REASONS
NANNETTE JOLIVETTE BROWN, District Judge.
Before the Court are Petitioner James Bernard Holts's ("Petitioner") objections to the September 27, 2013 Report and Recommendation of the United States Magistrate Judge assigned to the case. Petitioner, a state prisoner incarcerated at the Louisiana State Penitentiary, Angola, Louisiana, filed a petition for a Writ of Habeas Corpus under 28 U.S.C. § 2254. Petitioner argues that both his trial counsel and appellate counsel were ineffective. The Magistrate Judge recommends that the matter be dismissed with prejudice. Petitioner objects to some of the Magistrate Judge's findings and raises several additional issues. After reviewing the petition, the Magistrate Judge's Report and Recommendation, the objections, the record, and the applicable law, the Court will overrule Petitioner's objections, adopt the Magistrate Judge's recommendation and dismiss this action with prejudice.
A. Factual Background
Petitioner was charged by bill of information in St. Tammany Parish on January 13, 2009, with forcible rape,  and his trial commenced on October 12, 2009. On October 15, 2009, the jury found Petitioner guilty of forcible rape. On November 30, 2009, the trial court sentenced Petitioner to twenty years imprisonment. On January 31, 2010, Petitioner was adjudicated to be a fourth felony offender. The trial court vacated its earlier sentence and resentenced Petitioner to life imprisonment without benefit of parole, probation or suspension of sentence.
On October 29, 2010, the Louisiana First Circuit Court of Appeal affirmed Petitioner's conviction and sentence. On May 6, 2011, the Louisiana Supreme Court denied Petitioner's writ of certiorari. Petitioner's convictions became final on August 4, 2011, when he did not file a writ of certiorari with the United States Supreme Court.
On September 21, 2011, Petitioner submitted an application for post-conviction relief to the state trial court. On September 27, 2011, the state trial court denied the application. Petitioner's related writ application was then denied by the Louisiana First Circuit Court of Appeal on December 19, 2011,  and by the Louisiana Supreme Court on August 22, 2012.
On or about December 18, 2012, Petitioner filed an application for federal habeas corpus relief. Petitioner argued his trial counsel was ineffective because he: (1) failed to amend the motion to suppress evidence; (2) failed to assert that the affidavit resulting in a search warrant was false or misleading; (3) failed to challenge the accuracy of the testimony of the victim/witnesses; (4) withdrew the motion for preliminary hearing; and (5) failed to use testimony from the Motion for Preliminary hearing to impeach the inconsistent testimony of the victim/witnesses. Finally, Petitioner argued his appellate counsel was ineffective for: (1) raising a moot issue on appeal; (2) failing to properly investigate the case and raise the issue that "trial counsel failed to object to the comment by the victim that the defendant had told her that he'll kill her;'" and (3) failing to raise the issue that Petitioner was denied his right to counsel during police interrogations. In response, the State argued that Petitioner's claims were without merit. On April 2, 2013, Petitioner filed a "Traverse to the State's Answer, " and on April 22, 2013, Petitioner filed a "Traverse to District Attorney."
B. Report and Recommendation Findings
On September 27, 2013, the Magistrate Judge recommended that the petition be dismissed with prejudice. First, the Magistrate Judge determined that the action was timely, and Petitioner had exhausted his state court remedies. Next, she examined Petitioner's ineffective assistance of counsel claims.
The Magistrate Judge noted that Petitioner's ineffective assistance of counsel claims appeared to be based upon "alleged discrepancies between the testimony and statements provided by both the victim and Amy Evers and the affidavits by Officers Scott Daussin and Stacey Callender." Petitioner pointed to the following discrepancies: (1) at trial Amy Evers testified that she never spoke to Petitioner about him having sex with the victim but in Officer Daussin's affidavit he attested that Petitioner asked Amy Evers "if her friend would... mind having sex;" and (2) at trial Amy Evers testified when she entered the living room she saw Petitioner stand up holding his pants in front of him but Officer Callender's affidavit indicates that "Evers walked into the living [room] and observed Holts on top of [the victim] strangling her and heard him state, I will kill you.'" The Magistrate Judge found any contradictions between Evers's testimony and the officers' affidavits were insignificant. She opined that counsel could not be ineffective for failing to pursue a futile course of action. She noted that the search warrant sought obvious evidence like a DNA sample and Petitioner's clothing for comparison with forensic evidence obtained from the victim. She opined that "[c]lothing is subject to seizure on arrest under any circumstances, " and there was a complaining witness whose claim needed to be addressed. Finally, the Magistrate Judge found that Petitioner "sets forth no discernable prejudice regarding the withdrawal of the motion for preliminary hearing or the failure to utilize testimony from that proceeding for impeachment purposes at trial."
Addressing the ineffective assistance of appellate counsel claims, the Magistrate Judge noted that Petitioner argued "appellate counsel was ineffective in challenging the voluntariness of his statement to police since the State did not introduce [Petitioner's] statement at trial." She noted that the Louisiana First Circuit observed that the issue was moot. She found that Petitioner made no showing of prejudice. Addressing Petitioner's claim that counsel was ineffective in failing to raise on appeal the argument that he was deprived of counsel during his interrogation, the Magistrate Judge noted that the Louisiana First Circuit did address this argument, finding it was without merit. The Magistrate Judge found "the fact that counsel's efforts failed to persuade the appellate court, does not render counsel's performance ineffective in the Sixth Amendment sense." Finally, the Magistrate Judge rejected Petitioner's argument that appellate counsel was ineffective in failing to object to the victim's statement that Petitioner had threatened to kill her. Petitioner argued that the victim's testimony was uncorroborated, but the Magistrate Judge found the fact that the testimony was uncorroborated did not make it inadmissible. The Magistrate Judge found that appellate counsel's performance was not deficient because there was no viable basis for objecting to the victim's testimony.
A. Petitioner's Objections
Petitioner timely filed his objections to the Magistrate Judge's Report and Recommendation on October 15, 2013. He "requests that the [Court] review of the recorded statement between Detective Stacey Callender and Mr. Holts, the evening of November 13, 2008." He "submits that there are indirect reference [sic] of the interrogation, as Detective Callender asked if Mr. Holts threatened or had a weapon." He contends that the defense presented a Motion to Introduce Evidence of the victim's past sexual behavior, which he argues was improperly denied by the trial court. He asserts that a DNA report supports a finding that the victim engaged in consensual sex, and his trial counsel was ineffective for failing to make such an argument. He argues that the evidence was insufficient to support his conviction because no reasonable trier of fact could have believed the victim's testimony. He asserts that his trial counsel "failed to object that [the victim] had not testified as to having sexual intercourse and that the prosecutor submitted the panties that had the presents [sic] of sperm cell." He argues that "Counsel had failed to request La R.S. 14:15 to crime that require proof of specific intent." He cites Louisiana Code of Evidence article 412, arguing that it prohibits the introduction of evidence of the victim's past sexual behavior, with certain limited exceptions. He requests an evidentiary hearing, arguing it is necessary because "his conviction and sentence is unconstitutional because confrontation and the unfair trial."
On June 23, 2014, Petitioner filed an untimely "Supplement to Objections to the Proposed Findings." He contends that Detective Stacey Callender signed the affidavits to obtain an arrest warrant and a search warrant based on statements obtained by Officer Scott Daussin at the scene of the crime. He cites Davis v. Washington  and United States v. Bagley .  He argues:
[T]hat Detective Stacey Callender or Officer G. Cox could not resolve the present emergency, rather to only learn what happened in the past. At the scene is where the victim... the witness had talked with Officer Daussin as each one told there [sic] side in each other's presense [sic] because Detective Callender agreed to have spoke with the witness is where Mr. Holts is being denied because of the courts [sic] combining the report of Officer Scott Daussin and Detective Callender, Ms. Evers testimony at trial was that she had been presented as Ms. Brashear explained her story.
B. State's Response
The State of Louisiana did not file a brief in opposition to Petitioner's objections despite receiving electronic notice of the filings ...