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Bruce v. McCain

United States District Court, E.D. Louisiana

March 28, 2017

KERRY BRUCE
v.
SANDY MCCAIN, WARDEN

         SECTION “B” (5)

          ORDER AND REASONS

         I. NATURE OF MOTION AND RELIEF SOUGHT

         Before the Court is Petitioner Kerry Bruce's pro se application for a writ of habeas corpus under 28 U.S.C. § 2254. Rec. Doc. 1 at 1. The matter was referred to United States Magistrate Judge Michael B. North to conduct a hearing. He subsequently issued a Report and Recommendation (Report) to dismiss the petition with prejudice. Rec. Doc. 14 at 1. In response to the Report, Petitioner timely filed objections. Rec. Doc. 15. For the reasons outlined below, IT IS ORDERED that the objections are OVERRULED.

         IT IS FURTHER ORDERED that the Report is ADOPTED.

         IT IS FURTHER ORDERED that Petitioner's claims are DISMISSED WITH PREJUDICE.

         II. FACTUAL BACKGROUND AND PROCEDURAL HISTORY

         On June 18, 2012, Petitioner pled guilty to attempted second-degree murder and possession of a firearm while in the commission of a crime of violence. Rec. Doc. 14 at 1. In accordance with the plea agreement, the trial court sentenced Petitioner to twenty- five (25) years imprisonment for count one, attempted second- degree murder, and ten (10) years imprisonment for count two, possession of a firearm during the commission of a crime of violence. Id. at 1-2. The trial court ordered the sentences to run concurrently, without benefits, but with credit for time served. Rec. Doc. 1-1 at 27.

         The State then filed a multiple offender bill of information against Petitioner, pursuant to Louisiana Revised Statute section 15:529.1, seeking to have defendant adjudicated as a second felony offender. State v. Bruce 121 So.3d 796, 797 (La.App. 5 Cir. 2013). After Petitioner entered a guilty plea to the multiple offender bill, the trial court vacated its original sentence as to count one, attempted second-degree murder, and resentenced Petitioner as a habitual offender to twenty-five (25) years at hard labor, without the benefit of probation or suspension of sentence, but with credit for time served. Rec. Doc. 1 at 29-30.

         On direct appeal, the Louisiana Fifth Circuit Court of Appeal found that the guilty pleas and sentences presented no issues, and, accordingly, affirmed the convictions and sentences. Bruce, 121 So.3d at 800. The court also granted counsel's motion to withdraw. Id. Petitioner did not seek a writ of certiorari in the Louisiana Supreme Court. Rec. Doc. 14 at 2-3.

         On October 21, 2013, Petitioner filed an application for post-conviction relief with the state district court, which was denied on May 5, 2014. Rec. Doc. 1-1 at 44, 62. Subsequently, he filed writ applications to the Louisiana Fifth Circuit, and the Louisiana Supreme Court, both of which were denied. Id. at 88, 115.

         Then, Petitioner filed a federal application for habeas corpus relief, asserting four grounds for relief: (1) the evidence was not sufficient to support his conviction for second degree murder; (2) the trial court did not inform him during the plea colloquy of his right against self-incrimination; (3) defense counsel was ineffective for failing to conduct adequate pretrial investigation before advising Petitioner to enter a guilty plea; and (4) Petitioner was not properly advised of the nature of the offenses to which he was pleading guilty. Rec. Doc. 15 at 1.

         III. MAGISTRATE JUDGE'S REPORT AND RECOMMENDATIONS

         In his Report, Magistrate Judge North recommended that Petitioner's application for a writ of habeas corpus be dismissed with prejudice. Rec. Doc. 14 at 1. The Report construed claims 1 and 3 as challenges to the sufficiency of evidence and denied Petitioner's objections because Petitioner waived all non-jurisdictional defects preceding the plea when he plead guilty. Rec. Doc. 14 at 6-8. The Report also denied claims 2 and 4, because they directly contradicted the record. Id. at 9-16.

         IV. PETITIONER'S OBJECTIONS

         In his objections to the Report, Petitioner first argues that “[t]he [t]rial [c]ourt failed to meet the essential elements required by law to constitute” attempted second degree murder according to Louisiana Revised Statutes section 14:30.1. Rec. Doc. 15 at 1. Specifically, Petitioner contends that, even though he pled guilty to the charges, the State still had a responsibility to refrain from prosecuting any case that the prosecutor knows is not supported by probable cause, pursuant to Louisiana State Bar Article 16, Rules of Professional Conduct, Rule 3.8(a). Id. at 3. Furthermore, Petitioner argues that his conviction was obtained in violation of his rights to due process of law and equal protection, according to the Fifth and Fourteenth Amendments of the United States Constitution and subsection two of Article One of the Louisiana Constitution because of the prosecutorial misconduct.

Id.[1]

         Second, Petitioner argues that the trial court failed to inform him of his right against self-incrimination under Louisiana Code of Criminal Procedure Article 556(A)(3). Rec. Doc. 15 at 4.

         Third, Petitioner asserts that defense counsel was ineffective for failing to conduct adequate pretrial investigation before advising Petitioner to enter a guilty plea. Rec. Doc. 15 at 5. Petitioner claims that if counsel would have conducted an adequate pretrial investigation, he would have determined that the State would have lost at trial. Id.

         Finally, Petitioner argues that his due process rights were violated by the trial court's failure to properly advise him of the nature of the offenses to which he was pleading guilty, in violation of Louisiana Code of Criminal Procedure Article 556.1(A). Rec. Doc. 15 at 6. Specifically, Petitioner asserts that he was not informed, by an attorney ...


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