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Payton v. McCine

United States District Court, E.D. Louisiana

December 12, 2017

NATHANIEL PAYTON
v.
S.W. SANDY MCCINE

         SECTION “A” (2)

          REPORT AND RECOMMENDATION

          JOSEPH C. WILKINSON, JR. UNITED STATES 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 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. Upon review of the entire record, I have determined that a federal evidentiary hearing is unnecessary. See 28 U.S.C. § 2254(e)(2).[1] For the following reasons, I recommend that the instant petition for habeas corpus relief be DISMISSED WITHOUT PREJUDICE for failure to exhaust state court remedies.

         I. FACTUAL AND PROCEDURAL BACKGROUND

         The petitioner, Nathaniel Payton, is incarcerated in the Raymond Laborde Correctional Center in Cottonport, Louisiana.[2] On May 28, 2009, Payton was indicted by an Orleans Parish grand jury and charged with second degree murder.[3] The Louisiana Fourth Circuit Court of Appeal summarized the facts determined at trial in relevant part as follows:

The defendant was convicted of manslaughter in the killing of Cyril Roussel, who allegedly was shot by the defendant on August 2, 2008, and as a result of the wounds inflicted, died approximately six months later, on February 9, 2009.
[. . .]
New Orleans Police Department Officer Jason M. Lewis testified that on August 2, 2008, he was assigned to the canine unit. He was driving in the French Quarter, on Iberville Street, near Club Decatur, when he heard what sounded like gunshots. At that time he also began to hear reports on the police radio of the shooting outside Club Decatur. He was proceeding up Iberville Street to N. Peters Street when he was flagged down by a security guard from the club, who pointed the defendant out to him. The defendant was walking very fast. Officer Lewis turned on his lights and siren to get through heavy vehicular traffic at N. Peters Street, at which point the defendant began to run.
Officer Lewis crossed N. Peters on Iberville Street, paralleling the defendant as he ran across two connected parking lots. When the officer observed the defendant reach into his waistband and pull out a firearm, he stopped his vehicle, got his canine out, and ran into the parking lot after defendant. The officer ran through the gate across from the hotel entrance, and his canine apprehended Nicholas (sic) Payton. Officer Lewis testified that Payton dropped or threw the gun he was carrying, a Ruger semi-automatic handgun, and it landed in the middle of N. Front Street. Officer Lewis testified that from the time he saw the defendant walking fast until the time his canine apprehended defendant, he lost sight of him for only a brief second when he ran behind a building in the middle of the parking lots and emerged on the other side, still running parallel to the officer.
[. . .]
Leo Crump testified that he knew the victim, Cyril Roussel, from meeting him and his wife at parties in connection with the local music industry. On the night of August 2, 2008, Crump attended two concerts with friends at the House of Blues on Decatur Street. After the first concert, he went to Club Decatur to get a slice of pizza and ran into Cyril Roussel. Roussel had attended the second show at the House of Blues, though not with Crump. After the second show Crump saw Roussel standing with other people across Decatur Street talking. Crump went into Club Decatur.
Cyril Roussel subsequently entered, saying to someone Crump did not see: “I'm going to be right f ..... g here, you know. I ain't going nowhere.” Crump described the words from the victim as words of arguing. Crump said he asked Roussel at that point, “Hey man, what's wrong?” Roussel responded that nothing was wrong, and Crump said “[C]ool out. We having a good time tonight.”
Crump and Roussel continued talking, with Crump's back to the outer wall of Club Decatur, and Roussel facing Decatur Street. Someone appeared crouched down behind Roussel as they talked, and Crump heard a click. As soon as he heard a second click gunshots rang out. When Roussel was shot he ran about ten yards and fell over into the street. Crump called 911 and went right over to Roussel. Crump said he never saw a gun, nor did he see Cyril Roussel with a weapon. On cross-examination he was asked if he knew who the individual was “that was involved in the argument, ” [with the victim]. He did not know. He also said he did not know who shot his friend. Crump replied in the negative when asked on redirect examination whether he had seen the shooter's face. Crump said the shooting and scattering/running of people took a matter of seconds.
Kiefer Brown testified that he was working as an armed security person at Club Decatur at the time of the shooting. He was inside when the shooting began. He looked outside and saw the victim, by that time on the ground, by some bushes, being shot more times by Nicholas (sic) Payton, whom he identified in court. The defendant's gun jammed or ran out of ammunition, and he hurried away, putting the gun in his waistband. Brown followed him up Clinton Street to Iberville Street, where he encountered two security personnel from The House of Blues. He asked one of them to call the police. He continued to follow the defendant as he walked toward N. Peters Street. He said Payton turned and saw him, and took off running across N. Peters Street. Brown saw a police SUV and directed him to where he thought the defendant was running. Brown continued to chase the defendant, and observed him remove the gun from his waistband. The defendant then came back toward Brown, because the police canine was coming toward him. Brown said he grabbed the defendant, and the gun flew up in the air and hit a nearby fence. They [the police] handcuffed defendant, and Brown pointed out the gun to police. He said that as soon as he turned the gun over to the police he ran back to Club Decatur.
[. . .]

State v. Payton, 68 So.3d 594, 595-99 (La.App. 4th Cir. 2011); State Record Volume 7 of 8, Louisiana Fourth Circuit Opinion, 2010-KA-1166, pages 1-9, May 18, 2011.

         Payton was tried before a jury on March 8 through 11, 2010, and found guilty of the responsive verdict of manslaughter.[4] On April 9, 2010, the state trial court denied Payton's motion for a new trial based on the non-unanimous jury verdict.[5] The state trial court also sentenced Payton to serve 40 years in prison at hard labor.[6]

         On direct appeal to the Louisiana Fourth Circuit, Payton's appointed counsel asserted three errors:[7] (1) The evidence was insufficient to support the verdict of manslaughter. (2) The evidence was insufficient to support the finding that Payton was the perpetrator of the offense. (3) The jury instruction allowing a non-unanimous jury verdict was unconstitutional. The Louisiana Fourth Circuit affirmed the conviction and sentence on May 18, 2011, finding the claims meritless.[8]

         The Louisiana Supreme Court denied the writ application filed by Payton's counsel on February 3, 2012, without stated reasons.[9] His conviction became final ninety (90) days later on May 3, 2012, when he did not file a writ application with the United States Supreme Court. Ott v. Johnson, 192 F.3d 510, 513 (5th Cir. 1999) (period for filling for certiorari with the United States Supreme Court is considered in the finality determination under 28 U.S.C. § 2244(d)(1)(A)), cert. denied, 529 U.S. 1099 (2000); U.S. Sup. Ct. Rule 13(1).

         Payton's counsel presented for filing an application for post-conviction relief on February 1, 2013.[10] In that pleading, his counsel asserted that Payton was denied due process through the ineffective assistance of trial and appellate counsel.[11] On October 5, 2015, a second, similar pleading was filed by the same attorney, which included a third claim of ineffective assistance of trial counsel during sentencing allegedly resulting in imposition of an excessive sentence.[12] The record contains no ruling on either of these counsel-filed post-conviction applications.

         In the meantime, on January 15, 2015, the state trial court issued a judgment denying an application for post-conviction relief purportedly filed pro se by Payton on January 31, 2013.[13] Although no such pleading appears in the record, the state trial court's judgment indicates that Payton asserted three claims: (1) He was denied his confrontation rights when he was not allowed an opportunity to confront Officer Greyberry with impeachment evidence. (2) The State presented the perjured testimony of Kiefer Brown at trial. (3) He received ineffective assistance of counsel when counsel failed to object to two biased jurors or file a motion to recuse the trial judge because of her relationship with the victim's sister. The court denied the post-conviction application, finding the claims meritless.[14]

         Payton sought review of this ruling in the Louisiana Fourth Circuit, arguing that the state trial court erred in denying relief on these issues without discovery or an evidentiary hearing.[15] The court denied relief on June 30, 2015, because it was unable to locate a copy of the pro se “supplemental” application for post-conviction relief addressed in the trial court's order and advised Payton he could resubmit his application if the underlying pleading could be located or recreated.[16]

         On July 15, 2015, Payton signed and submitted a writ application to the Louisiana Supreme Court claiming that the state trial court violated his right of access to the courts, erred in failing to rule on the post-conviction application filed by his counsel and erred by denying him relief on his supplemental post-conviction application without holding an evidentiary hearing or allowing discovery.[17] The Louisiana Supreme Court denied the writ application on September 16, 2016, noting that Payton failed to establish that he received ineffective assistance under Strickland v. Washington, 466 U.S. 668 (1984).[18]The ...


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