United States District Court, W.D. Louisiana
MOSES BUCHANAN LA. DOC #256425, SECTION P
WARDEN LOUISIANA STATE PENITENTIARY
REPORT AND RECOMMENDATION
C. MICHAEL HILL, Magistrate Judge.
Pro se petitioner Moses Buchanan filed the instant petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254 on April 15, 2014. Petitioner is an inmate in the custody of the Louisiana Department of Corrections, incarcerated at the Louisiana State Penitentiary in Angola, Louisiana. Petitioner attacks his September 26, 2007 conviction for armed robbery for which he was sentenced on April 4, 2008 to forty years imprisonment by the Twenty-Seventh Judicial District Court for St. Landry Parish, Louisiana.
This matter has been referred to the undersigned in accordance with the provisions of 28 U.S.C. § 636 and the standing orders of the Court. For the following reasons, it is recommended that this habeas corpus petition be DENIED AND DISMISSED WITH PREJUDICE.
STATEMENT OF THE CASE
The facts surrounding the crime and trial testimony were summarized by the Third Circuit as follows:
On the evening of August 26, 2006, a man entered Kiki's Drive-Thru Daiquiri Shop in Opelousas, Louisiana, holding his crotch, and requesting to use the restroom. Wanda Robin was working behind the bar and her son, Ryan Robin, her niece, Lindsey Johnson, and Justin Fontenot were sitting at the bar having drinks. The man was directed to the restroom and departed the bar soon thereafter. About fifteen to twenty minutes later, the man returned to the bar with a shotgun, pointed the gun at everyone, and yelled at them to get down. He then pointed the gun at Wanda and instructed her to open the register. After Wanda handed over the cash from the register, the robber instructed everyone not to move or they would die, and he fled the bar. Following a brief investigation, petitioner was arrested on August 29, 2006, and charged with armed robbery."
State v. Buchanan, 36 So.3d 1076, 1078 (La.App. 3rd Cir. 2010).
Following a two day jury trial, which began on September 25, 2007, the jury found petitioner guilty as charged. Three of the four eyewitnesses present during the robbery (Wanda Robin, Ryan Robin and Justin Fontenot) identified petitioner as the perpetrator from a pre-trial photo line-up. At trial, all three of these eyewitnesses also identified petitioner as the person who robbed the bar. The remaining eyewitness (Lindsey Johnson) testified that she was not able to identify the robber in the pre-trial photo line-up, but at trial she was certain of her identification of petitioner as the perpetrator of the crime. Id . at 1079. Three of the four eyewitnesses (Ryan Robin, Lindsey Johnson and Justin Fontenot) had two opportunities to view petitioner the night of the armed robbery, once when petitioner entered the bar prior to the offense asking to use the restroom and a second time when petitioner entered the bar fifteen to twenty minutes later to commit the armed robbery. Id . at 1080. There was also corroborating testimony from Richard Griffin who placed petitioner at the scene. Griffin identified petitioner in court as one of two persons he drove to the bar on the evening of the armed robbery. Id . at 1082.
On May 5, 2010, the Louisiana Third Circuit Court of Appeal affirmed petitioner's conviction and sentence. State v. Buchanan, 36 So.3d 1076 (La.App. 3rd Cir. 2010). The Third Circuit's opinion reveals that petitioner asserted the following assignments of error: (1) that there was insufficient evidence to support petitioner's conviction; (2) that the trial court erred in allowing the State to effectively use petitioner's decision to exercise his right to remain silent against him in an attempt to rehabilitate Officer Roylis Gallow; (3) that petitioner's right to confrontation was denied when statements of a confidential informant or cooperative individual (CI) as to petitioner's description and identity were admitted; (4) that it was error for the trial court to instruct the jury that an investigator need not reveal the identity of a CI and consequently deny petitioner the opportunity to cross-examine the CI at trial; and (5) that petitioner's sentence was excessive. The Third Circuit did not consider petitioner's second, third or fourth claims under La. C. Crim. P. art. 841(A) because counsel did not make a contemporaneous objection at trial. See Id . at 1082-1083. Petitioner did not seek further direct review in the Louisiana Supreme Court.
Petitioner filed an Application for State Post-Conviction relief on April 28, 2011, in which he raised ineffective assistance of counsel claims and a claim that the trial court erred when, over defense objection, the prosecutor was allegedly permitted to go outside the scope of direct on cross-examination. An evidentiary hearing was held on April 26, 2012, at the conclusion of which, the Application was denied. [rec. doc. 9-1, pgs. 69-71; rec. pg. 159-258].
Petitioner sought writs in the Louisiana Third Circuit Court of Appeal. The writ application was denied by the Third Circuit on May 20, 2013, the court finding "no error in the trial court's denial of [petitioner's] Application for Post-Conviction Relief...." [rec. doc. 9, pg. 1, State v. Buchanan, 2012-KH-0841 (La.App. 3rd Cir. 2013)].
Petitioner sought writs in the Louisiana Supreme Court on June 11, 2013. [rec. doc. 9, pgs. 2-30]. The Louisiana Supreme Court denied writs without comment on March 21, 2014. State ex rel. Buchanan v. State, 2013-KH-1677, 135 So.3d 610 (La. 2013).
Petitioner signed the instant federal habeas corpus petition on April 14, 2014, and it was received and filed by the Clerk of this Court on April 15, 2014. Petitioner asserts the following claims for relief: (1) ineffective assistance of counsel because counsel (a) failed to object to Officer Gallow's testimony in which he referred to petitioner's alleged invocation of his right to counsel and post-arrest silence, allegedly prohibited by Doyle v. Ohio, 426 U.S. 610, 96 S.Ct. 2240, 49 L.Ed.2d 91 (1976), (b) failed to effectively handle issues associated with a confidential informant (CI), by not objecting to testimony regarding information received by police from a CI on confrontation clause grounds, failing to object to the trial court's instruction to the jury as to why the identity of a CI need not be disclosed, and failing to call the CI to testify at trial when the identity of the CI had allegedly been disclosed by the State during discovery, (c) failed to file pre-trial motions, or a motion to hire an investigator, (d) failed to impeach three of the State's witnesses (Richard Griffin, Kathy Victor and Jeremy Victor) by questioning them about alleged prior convictions, (e) failed to file a motion to suppress information provided by the CI to police and statements relating to petitioner's post-arrest silence, (f) failed to file a Motion in Limine excluding petitioner's post-arrest statement to police, and (g) labored under a conflict of interest 2014 that counsel had previously represented the State's witness Richard Griffin; and (2) the trial court erred by overruling petitioner's objection that the State's questioning of Officer Gallow was outside the scope of the direct examination.
The State has filed an Answer [rec. docs. 15 and 16], to which petitioner filed a Reply. [rec. doc. 17]. This Report and Recommendation follows.
LAW AND ANALYSIS
Standard of Review
This habeas petition was filed on April 15, 2014; therefore the standard of review is set forth in 28 U.S.C. § 2254(d), as amended in 1996 by the Antiterrorism and Effective Death Penalty Act (AEDPA). Knox v. Johnson, 224 F.3d 470, 476 (5th Cir. 2000); Orman v. Cain, 228 F.3d 616, 619 (5th Cir. 2000). AEDPA substantially restricts the scope of federal review of state criminal court proceedings in the interests of federalism, comity, and finality of judgments. Montoya v. Johnson, 226 F.3d 399, 403-04 (5th Cir. 2000) citing Teague v. Lane, 489 U.S. 288, 306, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989) and Williams v. Taylor, 529 U.S. 362, 120 S.Ct. 1495, 1516, 146 L.Ed.2d 389 (2000) (noting that AEDPA "placed a new restriction on the power of federal courts to grant writs of habeas corpus to state prisoners").
Title 28 U.S.C. § 2254(d) as amended, states as follows:
(d) An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim 2014
(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or
(2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.
Under the deferential scheme of § 2254(d), as amended, this court must give deference to a state court decision for "any claim that was adjudicated on the merits in State court proceedings" unless the decision was either "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), or the decision "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).
A habeas petitioner has the burden under AEDPA to prove that he is entitled to relief. Ormon, 228 F.3d at 619 citing Williams, 120 S.Ct. at 1518, and Engle v. Isaac, 456 U.S. 107, 134-35, 102 S.Ct. 1558, 71 L.Ed.2d 783 (1982). Under § 2254(d), as amended, "[t]he federal courts no longer have a roving commission to discern and correct' error in state court proceedings, but must exercise a more limited review...." Grandison v. Corcoran, 78 F.Supp.2d 499, 502 (D. Md. 2000). Federal courts may not grant the writ merely on a finding of error by a state court or on a finding of mere disagreement with the state court. Montoya, 226 F.3d at 404; Orman, 228 F.3d at 619.
A decision is "contrary to" clearly established Federal law "if the state court arrives at a conclusion opposite to that reached by... [the Supreme Court] on a question of law or if the state court decides a case differently than... [the Supreme Court] has on a set of materially indistinguishable facts." Dowthitt v. Johnson, 230 F.3d 733, 740-41 (5th Cir. 2000) citing Williams, 120 S.Ct. at 1523; Montoya, 226 F.3d at 403-04 citing Williams, 120 S.Ct. at 1523. "The contrary to' requirement refers to holdings, as opposed to the dicta, of... [the Supreme Court's] decisions as of the time of the relevant state-court decision.'" Dowthitt, 230 F.3d at 740 citing Williams, 120 S.Ct. at 1523.
Under the "unreasonable application" clause, a federal habeas court may grant the writ only if the state court "identifies the correct governing legal principle from... [the Supreme Court's] decisions but unreasonably applies that principle to the facts of the prisoner's case." Dowthitt, 230 F.3d at 741 citing Williams, 120 S.Ct. at 1523. The standard is one of objective reasonableness. Montoya, 226 F.3d at 404 citing Williams, 120 S.Ct. at 1521-22. A federal habeas court may not issue the writ "simply because that court concludes in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly... [r]ather, that application must also be unreasonable." Williams, 120 S.Ct. at 1522.
Section 2254(d)(2) speaks to factual determinations made by the state courts. Dowthitt, 230 F.3d at 741. Federal habeas courts presume such determinations to be correct; however, the petitioner can rebut this presumption by clear and convincing evidence. Id. Thus, this court must defer to the state court's decision unless it was based on an unreasonable determination of the facts in light of the record of the State court proceeding. Id . citing 28 U.S.C. § 2254(d)(2); Knox, 224 F.3d at 476 citing Chambers v. Johnson, 218 F.3d 360, 363 (5th Cir. 2000).
In sum, "[a] state court's determination that a claim lacks merit precludes federal habeas relief so long as fairminded jurists could disagree' on the correctness of the state court's decision." Harrington v. Richter, 562 U.S. 86, 131 S.Ct. 770, 786 (2011). Thus, under § 2254(d), "[a]s 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." Id. at 786-787. "If this standard is difficult to meet, that is because it was meant to be." Id. at 786.
I. Ineffective Assistance of Counsel
To prevail on an ineffective assistance of counsel claim, a petitioner must establish that (1) his attorney's representation fell below an objective standard of reasonableness; and (2) there is a reasonable probability that, but for counsel's deficient performance, the outcome of the proceedings would have been different. Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984).
The burden is on the petitioner to show that counsel's representation fell below an objective standard of reasonableness. Id. at 688. Judicial scrutiny of counsel's performance must be "highly deferential, " and the court must make every effort "to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel's alleged conduct, and to evaluate the conduct from counsel's perspective at the time." Id . at 689. The court must "indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy." Id . (citation omitted). Thus, this court's review "strongly presum[es] that counsel has exercised reasonable professional judgment." United States v. Payne, 99 F.3d 1273, 1282 (5th Cir. 1996) quoting Lockhart v. McCotter, 782 F.2d 1275, 1279 (5th Cir. 1986). Courts may "not find ineffective assistance of counsel merely because [the court] disagree[s] with counsel's trial strategy." Crane v. Johnson, 178 F.3d 309, 312 (5th Cir. 1999) citing Green v. Johnson, 116 F.3d 1115, 1122 (5th Cir. 1997). Rather, if a tactical or strategic decision is "conscious and informed... [it] cannot be the basis for constitutionally ineffective assistance of counsel unless it is so ill chosen that it permeates the entire trial with obvious unfairness." Martinez v. Dretke, 404 F.3d 878, 885 (5th Cir. 2005); United States v. Cavitt, 550 F.3d 430, 440 (5th Cir. 2008) quoting Crane, 178 F.3d at 314.
Strickland' s prejudice element requires a showing "that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome." Sayre v. Anderson, 238 F.3d 631, 635 (5th Cir. 2001) citing Strickland, 104 S.Ct. at 2068. However, self serving conclusory statements that the outcome would have been different "fall far short of satisfying Strickland' s prejudice element." Id.
Because both Strickland factors, that of deficient performance and prejudice, must be satisfied, "an ineffective assistance contention may be rejected on an insufficient showing of prejudice, without inquiry into the adequacy of counsel's performance." Strickland, 466 U.S. at 689-94. Petitioner must satisfy both prongs of Strickland, demonstrating both that counsel's performance was deficient and that the deficiency prejudiced the defense. Crane v. Johnson, 178 F.3d 309, 312 (5th Cir. 1999); Green v. Johnson, 160 F.3d 1029, 1035-36 (5th Cir. 1998). However, "[m]ere conclusory allegations in support of a claim of ineffective assistance of counsel are insufficient to raise a constitutional issue." Green, 160 F.3d at 1043.
(a) Failure to Object to Officer Gallow's Testimony
Petitioner contends that counsel was ineffective for failing to object to Officer Gallow's testimony in which Gallow referred to petitioner's alleged invocation of his right to counsel and post-arrest silence, allegedly prohibited by ...