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 28 U.S.C. § 2254(e)(2) (2006).
I. Factual and Procedural Background
The petitioner, Michael Lawrence ("Lawrence"), is a convicted inmate currently incarcerated in the B.B. (Sixty) Hunt Correctional Center in Angie, Louisiana. On June 12, 2008, Lawrence and his co-defendant, Louis Seymour, were charged by Bill of Information in Orleans Parish each with one count of possession with intent to distribute cocaine and Lawrence with one count of distribution of cocaine.
The record reflects that, on April 11, 2008, Detective Michael Dalferes, a member of the Major Case Narcotics Unit of the New Orleans Police Department, was part of an undercover buy/bust operation targeting street level narcotics dealers. His assignment was to pose as a potential buyer in an unmarked vehicle equipped with audio and video surveillance equipment and was provided with marked and recorded currency.
While proceeding down Marais Street in New Orleans, a man later identified as Seymour, flagged him down. Detective Andrew Roccaforte, a member of the support team, was watching the transaction between Seymour and Detective Dalferes. Detective Dalferes told Seymour that he wanted "two dimes" or two $10.00 pieces of crack cocaine. Seymour took a $20.00 bill from him and Dalferes moved his car to the side of the street. Seymour walked away, turning down St. Anthony Street.
Detective Roccaforte continued to watch as Seymour walked on St. Anthony Street in a river bound direction and maintained sight of him until he approached the front door of a residence located at 1220 St. Anthony Street. Seymour knocked, and within seconds he was greeted at the door by a black male, later identified as Lawrence. Seymour handed Lawrence the money in exchange for a small object. Seymour went into the house for a few minutes before leaving to return to Detective Dalferes' car.
On his return, Seymour gave Detective Dalferes a single $20.00 piece of crack cocaine wrapped in plastic, instead of the two $10.00 pieces Detective Dalferes had requested. Detective Dalferes took the cocaine and drove away. He then radioed members of his support team, provided a description of Seymour, and gave them the signal to move in and effect the arrest.
Detective Kyle Hinrichs was the first detective to arrive to make the arrest. After arresting Seymour, Detective Hinrichs went to the house at 1220 St. Anthony Street, where he was met by Sergeant Jeff Sislo and another detective. They knocked on the door, and Lawrence answered the door and was advised of the investigation and his Miranda rights. Lawrence admitted to the officers that he had a piece of crack cocaine on him at that time and stated, "I can't go, I can't go to jail."
Nevertheless, Lawrence was placed under arrest and searched. The officers recovered from his person a total of $27.00 in cash, including the marked $20.00 bill, and a piece of crack cocaine. Sergeant Sislo entered the house to speak with the occupants and did a quick walk through for safety reasons to determine who was present inside the house. On the coffee table in the front room, he saw approximately six or seven crack pipes (clear plastic tubes with burnt residue) and a razor blade. There were four women inside the house at the time. One was the homeowner who was bedridden.
On October 30, 2008, Seymour entered a plea of guilty to a reduced charge of possession of cocaine and was sentenced to serve one year in prison at hard labor. Lawrence was eventually tried before a jury on December 5, 2011, and was found guilty as charged of one count of distribution of cocaine and one count of the lesser offense of possession of cocaine. The state trial court sentenced Lawrence on February 28, 2012, to serve concurrent sentences of five (5) years in prison. That same day, the State filed a multiple offender bill charging Lawrence as a fourth felony offender.
After hearings on the matter were held on October 5, 2012, and June 13, 2013, the Trial Court adjudicated Lawrence to be a "multiple offender." The Trial Court vacated the prior sentence (without designating a particular count) and sentenced him to serve nine (9) years in prison. The State objected to the lenient sentence and was granted leave to file for review in the Louisiana Fourth Circuit.
In the meantime, on direct appeal to the Louisiana Fourth Circuit Court of Appeal, Lawrence's appointed counsel asserted two errors addressed to the trial and the original sentencing held on February 28, 2012: (1) the state trial court erred in denying the defense's motion for mistrial based on the prosecutor's prejudicial comments during closing arguments; and (2) the state trial court incorrectly sentenced Lawrence on February 28, 2012, for possession with intent to distribute where he was actually convicted of possession of cocaine.
On July 3, 2013, the Louisiana Fourth Circuit found two errors patent on the face of the record, including the same problem addressed in Lawrence's second assignment of error. First, the Circuit Court found that the Trial Court's statements at sentencing and the minutes from February 28, 2012, indicated that he was sentenced for possession with intent to distribute, a crime for which he was not convicted. Second, the Trial Court failed to order that the first two years of Lawrence's sentence for distribution of cocaine had to be served without the benefit of parole. The Circuit Court noted that the second concern was self-correcting under the law. Finding no merit in the other assignment of error, the Circuit Court affirmed both of Lawrence's convictions and the sentence for distribution of cocaine, as corrected. However, the Circuit Court, apparently unaware of the ...