United States District Court, E.D. Louisiana
REPORT AND RECOMMENDATION
SALLY SHUSHAN, District Judge.
This matter was referred to this United States Magistrate Judge for the purpose of conducting a hearing, including an evidentiary hearing, if necessary, and submission of proposed findings of fact 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 record, the Court has determined that this matter can be disposed of without an evidentiary hearing. See 28 U.S.C. § 2254(e)(2). Therefore, for all of the following reasons, IT IS RECOMMENDED that the petition be DISMISSED WITH PREJUDICE.
Petitioner, Herman Paul Bella, is a state prisoner incarcerated at the Louisiana State Penitentiary, Angola, Louisiana. On January 30, 2008, he was convicted of aggravated rape and aggravated oral sexual battery under Louisiana law. On April 10, 2008, he was sentenced to life imprisonment on the aggravated rape conviction and to a term of twenty years imprisonment on the aggravated oral sexual battery conviction. It was ordered that those sentences run consecutively and without benefit of probation, parole, or suspension of sentence. On October 23, 2009, the Louisiana First Circuit Court of Appeal affirmed his convictions and sentences. The Louisiana Supreme Court then denied his related writ application on May 21, 2010.
On or about July 1, 2011, petitioner filed an application for post-conviction relief with the state district court. That application was denied on September 7, 2011. His related writ applications were likewise denied by the Louisiana First Circuit Court of Appeal on January 17, 2012,  and by the Louisiana Supreme Court on August 22, 2012.
Petitioner thereafter filed the instant federal application seeking habeas corpus relief. The state concedes that the application is timely and that petitioner exhausted his remedies in the state courts.
I. 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 (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 correct. The applicant shall have the burden of rebutting the presumption of correctness by clear and convincing evidence.").
As to pure questions of law and mixed questions of law and fact, a federal court must defer to the state court's decision on the merits of such a claim unless that decision "was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States." 28 U.S.C. § 2254(d)(1). Courts have held that the "contrary to' and unreasonable application' clauses [of § 2254(d)(1)] have independent meaning." Bell, 535 U.S. at 694.
Regarding the "contrary to" clause, the United States Fifth Circuit Court of Appeals has explained:
A state court decision is contrary to clearly established precedent if the state court applies a rule that contradicts the governing law set forth in the [United States] Supreme Court's cases. A state-court decision will also be contrary to clearly established precedent if the state court confronts a set of facts that are materially indistinguishable from a decision of the [United States] Supreme Court and nevertheless arrives at a result different from [United States] Supreme Court precedent.
Wooten v. Thaler, 598 F.3d 215, 218 (5th Cir. 2010) (internal quotation marks, ellipses, brackets, and footnotes omitted).
Regarding the "unreasonable application" clause, the United States Supreme Court has held: "[A] state-court decision is an unreasonable application of our clearly established precedent if it correctly identifies the governing legal rule but applies that rule unreasonably to the facts of a particular prisoner's case." White v. Woodall, 134 S.Ct. 1697, 1706 (2014). However, the Supreme Court cautioned:
Section 2254(d)(1) provides a remedy for instances in which a state court unreasonably applies this Court's precedent; it does not require state courts to extend that precedent or license federal courts to treat the failure to do so as error. Thus, if a habeas court must extend a rationale before it can apply to the facts at hand, then by definition the rationale was not clearly established at the time of the state-court decision. AEDPA's carefully constructed framework would be undermined if habeas courts introduced rules not clearly established under the guise of extensions to existing law.
Id. (citations and quotation marks omitted). Therefore, when the Supreme Court's "cases give no clear answer to the question presented, let alone one in [the petitioner's] favor, it cannot be said that the state court unreasonably applied clearly established Federal law." Wright v. Van Patten, 552 U.S. 120, 126 (2008) (quotation marks and brackets omitted). The Supreme Court has also expressly cautioned that "an unreasonable application is different from an incorrect one." Bell, 535 U.S. at 694. Accordingly, a state court's merely incorrect application of Supreme Court precedent simply does not warrant habeas relief. Puckett v. Epps, 641 F.3d 657, 663 (5th Cir. 2011) ("Importantly, unreasonable' is not the same as erroneous' or incorrect'; an incorrect application of the law by a state court will nonetheless be affirmed if it is not simultaneously unreasonable.").
While the AEDPA standards of review are strict and narrow, they are purposely so. As the United States Supreme Court has held:
[E]ven a strong case for relief does not mean the state court's contrary conclusion was unreasonable.
If this standard is difficult to meet, that is because it was meant to be. As amended by AEDPA, § 2254(d) stops short of imposing a complete bar on federal court relitigation of claims already rejected in state proceedings. It preserves authority to issue the writ in cases where there is no possibility fairminded jurists could disagree that the state court's decision conflicts with this Court's precedents. It goes no farther. Section 2254(d) reflects the view that habeas corpus is a guard against extreme malfunctions in the state criminal justice systems, not a substitute for ordinary error correction through appeal. As a condition for obtaining habeas corpus from a federal court, a state prisoner must show that the state court's ruling on the claim being presented in federal court was so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement.
Harrington v. Richter, 562 U.S. 86, 102-03 (2011) (citations omitted; emphasis added); see also Renico v. Lett, 559 U.S. 766, 779 (2010) ("AEDPA prevents defendants - and federal courts - from using federal habeas corpus review as a vehicle to second-guess the reasonable decisions of state courts.").
The Supreme Court has expressly warned that although "some federal judges find [28 U.S.C. § 2254(d)] too confining, " it is nevertheless clear that "all federal judges must obey" the law and apply the strictly deferential standards of review mandated therein. White v. Woodall, 134 S.Ct. 1697, 1701 (2014).
On direct appeal, the Louisiana First Circuit Court of Appeal summarized the facts of this case as follows:
J.P., the victim, was born on April 18, 1990.[FN2] When he was 11 months old, his mother, S.P., began a relationship with Darren Bella. Their relationship lasted approximately six years, during which time they had two children together, who are J.P.'s half-siblings. Darren Bella is the brother of the defendant.
[FN2] In accordance with La. R.S. 46:1844W, the victim's identity will not be disclosed herein to protect his privacy.
Between 1995 and 1998, Rose Lirette, the mother of Herman and Darren Bella, often cared for J.P. and his half-siblings at her house in Gray, Louisiana. The children actually lived there part of the time because their mother worked at night. The defendant also lived at Rose's house while the children were living there. At the time, the victim considered the defendant's brother to be his father, referred to the defendant as his uncle, and referred to Rose as "Maw Maw" Rose.
According to J.P., the defendant sexually abused him when he was about six or seven years of age. The sexually abusive acts began while the victim was living in Terrebonne Parish at Rose's house and happened on five or six separate occasions during a period of approximately three months in 1997 and 1998. The acts included fondling, oral sex, and anal sexual intercourse.
In May of 2006, the victim was hospitalized and diagnosed with condyloma, a sexually transmitted disease, and Burkitt's lymphoma, a form of cancer qualifying as a diagnosis of AIDS. J.P. was 16 years old when he was diagnosed, which was about eight to nine years after the alleged sexual abuse took place. Following his initial diagnosis of HIV, J.P. disclosed to his mother the sexual abuse perpetrated on him by the defendant. His mother reported this to a social worker, who reported it to the police.[FN3]
[FN3] During the trial, the defendant denied any sexual activity with the victim, stating he did not know why the victim made the allegations. A physical examination and blood testing of the defendant was performed on February 13, 2007, at Chabert Medical Center. The results were consistent with but not a conclusive diagnosis of condyloma, and the HIV testing was positive.
III. Petitioner's Claims
A. Qualification of Expert
Petitioner's first claim is that the trial court erred in accepting Dr. Jamie Hanna as an expert witness at trial. On direct appeal, the Louisiana First Circuit Court of Appeal rejected that claim, holding:
In the first assignment of error, the defendant argues that the trial court erred in qualifying Dr. Hanna as an expert licensed physician in the field of pediatrics because she did not meet the criteria to be qualified as an expert witness in pediatrics. Dr. Hanna had not completed her residency in pediatrics at the time of the trial, and she testified that the average time for an untreated HIV infection to develop into AIDS is approximately eleven years. This testimony was in conflict with the testimony of the State's uncontested expert witness, Dr. Ronald Wilcox, who testified that it would be an average of five to seven years. The defendant notes that the State did not address the methodology used by Dr. Hanna in arriving at the aforementioned average and contends the conflicting testimony confused the jury. Finally, the defendant contends the admission of Dr. Hanna's testimony was not harmless since her estimate indicates that the victim could have become infected with HIV at the time of the instant offenses, while Dr. Wilcox's testimony suggests the victim was infected after the abuse in the instant case ceased.
Dr. Hanna is a licensed physician who received her medical degree at the University of Alabama School of Medicine in 2005. Dr. Hanna was also a resident at Louisiana State University from 2005 to the date of the trial in January 2008, practicing in pediatrics and psychiatry. Dr. Hanna had completed two years of her three-year residency requirement and planned to complete a two-year fellowship in psychiatry upon completion of her residency. The residency consisted of hospital work under another physician.
The State offered Dr. Hanna as an expert resident in pediatrics and child psychiatry. The defendant opposed the State's tender. The trial court removed the jury and held a Daubert hearing. The trial court noted that Dr. Hanna treated the victim, and it recognized Dr. Hanna as an expert in the general field of medicine, acknowledging her residency in the general field of pediatrics.
The trial judge has wide discretion in determining the competence of an expert witness, and his ruling on a witness's qualification will not be disturbed absent an abuse of that discretion. State v. Trahan, 576 So.2d 1, 8 (La. 1990). In State v. Foret, 628 So.2d 1116, 1121-23 (La. 1993), the Louisiana Supreme Court clarified the trial judge's role under La. Code Evid. art. 702, which provides:
If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise.
The Foret court explained that the trial judge, in ruling on the admissibility of scientific evidence, performs a "gatekeeping function in balancing the probative value of the evidence against its prejudicial effect." Foret, 628 So.2d at 1123.
The Foret court adopted the guidelines set forth in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 592-95, 113 S.Ct. 2786, 2796-98, 125 L.Ed.2d 469 (1993), for determining the reliability of expert scientific testimony. In Daubert, the United States Supreme Court set a new standard to assist federal district courts in evaluating the admissibility of expert testimony. The new standard required the district courts to perform a "gatekeeping" function to "ensure that any and all scientific testimony or evidence admitted is not only relevant, but reliable." Daubert, 509 U.S. at 589, 113 S.Ct. at 2795. See State v. Chauvin, 2002-1188, p. 5 (La. 5/20/03), 846 So.2d 697, 700-01. In Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137, 141, 119 S.Ct. 1167, 1171, 143 L.Ed.2d 238 (1999), the United States Supreme Court held that the analysis established by Daubert is to be applied to determine the admissibility of all expert testimony, not just scientific testimony.
Daubert established the following non-exclusive factors to be considered by federal district courts to determine the admissibility of expert testimony: (1) the "testability" of the scientific theory or technique; (2) whether the theory or technique has been subjected to peer review and publication; (3) the known or potential rate of error; and (4) whether the methodology is generally accepted in the scientific community. Daubert, 509 U.S. at 592-94, 113 S.Ct. at 2796-97. In Chauvin, the Louisiana supreme court characterized the Daubert factors as "observations" that provide a "helpful guide for our lower courts in considering this difficult issue." Chauvin, XXXX-XXXX at p. 5, 846 So.2d at 701.
In Cheairs v. State ex rel. Department of Transp. and Development, 2003-0680, p. 10 (La. 12/3/03), 861 So.2d 536, 542, the supreme court adopted a three-part inquiry to more fully assist district courts in determining all of the relevant issues related to the admissibility of expert testimony, with the Daubert analysis serving as one of the three prongs. This three-prong inquiry was first set forth in City of Tuscaloosa v. Harcros Chemicals, Inc., 158 F.3d 548 (11th Cir. 1998), in which the court stated that the admission of expert testimony is proper only if all three of the following things are true: (1) the expert is qualified to testify competently regarding the matters he intends to address; (2) the methodology by which the expert reaches his conclusions is sufficiently reliable as determined by the sort of inquiry mandated in Daubert; and (3) the testimony assists the trier of fact, through the application of scientific, technical, or specialized expertise, to understand the evidence or to determine a fact in issue. Harcros Chemicals, 158 F.3d at 562.
According to Dr. Hanna's testimony during the Daubert hearing, as a resident, she practiced as a licensed physician in patient care and hospitals. Dr. Hanna received training as a resident in the sub-specialties of general pediatrics and child psychiatry. She confirmed that she was in a position to give opinions regarding general medical information on the HIV virus and treatment and on condyloma. Dr. Hanna treated the victim in the field of pediatrics at the Children's Hospital. As noted by the defendant on appeal, Dr. Hanna testified that the average time it takes for untreated HIV to convert to AIDS is eleven years. She confirmed that she never examined the defendant or his medical records. She also admitted that she could not say with certainty that the victim contracted AIDS between 1996 and 1999, only that such a contraction was consistent with the AIDS-defining illness that the victim had and information provided by the victim. We do not find the differing opinions regarding the average time period for the conversion of untreated HIV to AIDS a determinative factor herein regarding Dr. Hanna's qualification as an expert witness on the subject. Considering ...