United States District Court, E.D. Louisiana
ASHLEIGH E. THORNTON
JAMES ROGERS, WARDEN
SECTION " N" (4)
Ashleigh E. Thornton, Plaintiff, Pro se, St. Gabriel, LA.
For James Rogers, 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. 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, Ashleigh E. Thornton (" Thornton"), is a convicted inmate currently incarcerated in the Louisiana Correctional Institute for Women in St. Gabriel, Louisiana. On April 11, 2011, Thornton was indicted in Orleans Parish under Case No. 505319 for the August 22, 2005, second degree murder of Joseph Wongchoy, her boss, who was shot once in the head at petitioner's place of employment where Wongchoy also resided. Thornton initially entered a plea of not guilty to the charge on May 2, 2011.
After several unsuccessful pretrial motions to suppress,  on June 15, 2012, Thornton withdrew her former plea and, pursuant to a plea agreement, entered a plea of guilty to the amended charge of manslaughter. In accordance with the agreement, the Trial Court sentenced Thornton to serve thirty (30) years in prison at hard labor with credit for time served. The State that day also filed a multiple bill charging Thornton as a second offender based on her prior conviction upon entry of a plea of guilty to possession of narcotics in Jefferson Parish Case No. 06-2722. Pursuant to the initial plea agreement and her admission to the multiple bill, the Trial Court vacated the sentence and resentenced Thornton as a second offender to serve thirty (30) years in prison at hard labor with credit for time served and to run concurrently with her other sentences.
At a hearing held July 20, 2012, the State successfully moved to have the Trial Court vacate the first multiple bill and the sentence on that bill. The State filed a second multiple bill based on another of Thornton's prior convictions in Jefferson Parish Case No. 04-7532, in which she entered a guilty plea to possession of hydrocodone on April 12, 2005. At the hearing, Thornton admitted the allegations in the multiple bill, and the Trial Court adjudicated her to be a second felony offender. The Trial Court sentenced Thornton as a second felony offender to serve thirty (30) years in prison at hard labor with credit for time served.
Thornton's conviction and sentence became final thirty (30) days later, on Monday, August 20, 2012,  because she did not seek reconsideration of the sentence or file an appeal. La. Code Crim. P. art. 914;  Butler v. Cain, 533 F.3d 314, 317 (5th Cir. 2008) (quoting Roberts v. Cockrell, 319 F.3d 690, 694 (5th Cir. 2003)) (" [A] conviction becomes final when the time for seeking further direct review in the state court expires."); see also Burton v. Stewart, 549 U.S. 147 (2007) (finding that in a criminal case, judgment includes conviction and sentence, therefore the AEDPA " limitations period did not begin until both his conviction and sentence 'became final by the conclusion of direct review or the expiration of the time for seeking such review, '" citing 28 U.S.C. § 2244(d)(1)(A)).
On July 10, 2013, Thornton submitted an application for post-conviction relief to the Trial Court asserting three (3) grounds for relief: (1) the Trial Court violated La. Code Crim. P. art. 880 when it failed to give her credit for time served starting from the date of issuance of the arrest warrant and detainer; (2) the State failed to produce sufficient evidence to prove Thornton was a multiple offender rendering her sentence unconstitutional; and (3) her constitutional rights were violated when the Trial Court double-enhanced her sentence which created an illegal sentence.
On July 29, 2013, the Trial Court denied the application finding that Thornton's first claim was factually incorrect where the record showed the Trial Court ordered that she receive credit for time served. The Trial Court found the second claim to be moot, because Thornton admitted to the prior conviction in the multiple bill. The Trial Court also found that the third claim raised a sentencing error which was not a proper ground for post-conviction relief under La. Code Crim. P. arts. 930.3 and State ex rel. Melinie v. State, 665 So.2d 1172 (La. 1996).
The Louisiana Fourth Circuit denied Thornton's related writ application on September 4, 2013, finding no error in the Trial Court's ruling. The Louisiana Supreme Court denied her subsequent writ application without stated reasons on May 9, 2014.
II. Federal Petition
On July 3, 2014, the clerk of this Court filed Thornton's federal petition for habeas corpus relief in which she asserted the following grounds for relief:(1) the state courts violated her constitutional rights when the courts failed to allow her credit for time served starting from her initial arrest on August 27, 2005, or from the date the arrest warrant was issued; (2) the State failed to produce sufficient evidence to prove she was a habitual offender, which rendered her sentence illegal; and (3) the state trial court violated her constitutional rights when it double-enhanced her sentence using a prior enhanced sentence, which created an illegal sentence.
The State filed an answer in opposition to Thornton's petition conceding its timely filing and urging that her first two claims in part are not cognizable under federal habeas law and are otherwise without merit and the third claim is in procedural default and otherwise without merit. Thornton filed a reply to the State's answer in opposition further arguing the merits of her claims.
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 under the federal mailbox rule on May 12, 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 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 concedes and the record demonstrates that Thornton's federal petition was timely filed and state remedies were exhausted as to the claims raised in connection with Orleans Parish Case No. 505319, which is the only conviction and sentence being challenged by Thornton. The State has urged, however, that one of Thornton's claims is in procedural default having been barred from review by the state courts.
IV. Procedural Default (Claim No. 3)
The State has raised the procedural bar imposed by the state courts to review of Thornton's claim that her enhanced sentence is illegal and unconstitutional. The record reflects that this is the only claim to be clearly rejected on procedural grounds by the state courts under La. Code Crim. P. art. 930.3 and related case law. The State's suggestion, that the other claims should also be procedurally barred as ...