United States District Court, E.D. Louisiana
REPORT AND RECOMMENDATION
SALLY SHUSHAN, Magistrate 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, Amber Lee Butler, is a state prisoner incarcerated at the Louisiana Correctional Institute for Women in St. Gabriel, Louisiana. On May 21, 2012, she pleaded guilty under Louisiana law to one count of armed robbery and one count of use of a firearm to commit an armed robbery. On that same date, she was sentenced to a term of ten years imprisonment on the former conviction and to a term of five years imprisonment on the latter conviction. It was ordered that those sentences be served consecutively and without benefit of probation, parole, or suspension of sentence. However, on July 9, 2012, the state district court granted the state's motion to reconsider sentence and resentenced her on the former conviction to a consecutive term of fifteen years imprisonment without benefit of probation, parole, or suspension of sentence. On January 23, 2014, the Louisiana First Circuit Court of Appeal affirmed petitioner's convictions and sentences. The Louisiana Supreme Court then denied her related writ application on September 19, 2014.
On or about December 19, 2014, petitioner filed the instant federal application seeking habeas corpus relief. The state concedes that the application is timely.
In the state criminal proceedings, defense counsel filed a motion to quash the second count of the bill of information which charged petitioner with using a "firearm" to commit the armed robbery, a factor which triggers an additional penalty under state law. Defense counsel argued that a BB gun had been used during the robbery and that such a weapon should not be considered a "firearm." The state district court denied that motion. Petitioner then subsequently pleaded guilty to both armed robbery and the additional penalty for using a "firearm, " subject to the reservation of her right to appeal the denial of the motion to quash. On direct appeal, the Louisiana First Court of Appeal then affirmed her convictions and sentences, holding:
[T]he defendant argues the trial court erred in denying the motion to quash count II, because La. R.S. 14:64.3 requires use of a "firearm, " and she only used a BB gun.
The motion to quash is essentially a mechanism by which to raise pretrial pleas of defense, i.e., those matters that do not go to the merits of the charge. See La.C.Cr.P. arts. 531-534; State v. Beauchamp, 510 So.2d 22, 25 (La.App. 1st Cir.), writ denied, 512 So.2d 1176 (La. 1987). It is treated much like an exception of no cause of action in a civil suit. Beauchamp, 510 So.2d at 25.
In considering a motion to quash, a court must accept as true the facts contained in the bill of information and in the bills of particulars and determine, as a matter of law and from the face of the pleadings, whether or not a crime has been charged. While evidence may be adduced, such may not include a defense on the merits. The question of factual guilt or innocence of the offense charged is not raised by the motion to quash. Beauchamp, 510 So.2d at 25.
The motion to quash argued that the indictment charged an offense that is not punishable under a valid statute because "[t]he State is attempting to qualify a dangerous weapon already addressed in the primary charge as a firearm' to tack on additional charges against the defendant." The bill of information set forth the charges as follows:
R.S. 14:64 ARMED ROBBERY, by the intentional taking of property having value from the person of another or which is in the immediate control of another, namely Bernaldo Santos and Gabriel Alonzo, by use of force or intimidation while armed with a dangerous weapon, to-wit: gun.
R.S. 14:64.3 ARMED ROBBERY; USE OF FIREARM; ADDITIONAL PENALTY, by committing an armed robbery when the dangerous weapon used in the commission of ...