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Faggard v. State

United States District Court, E.D. Louisiana

January 4, 2018

JEFFERSON FAGGARD
v.
STATE OF LOUISIANA

         SECTION: "J"(5)

          REPORT AND RECOMMENDATION

          MICHAEL B. NORTH UNITED STATES MAGISTRATE JUDGE.

         This matter was referred to the undersigned United States Magistrate Judge to conduct a hearing, 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 in the United States District Courts. 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). For the following reasons, IT IS RECOMMENDED that the petition for habeas corpus relief be DISMISSED WITH PREJUDICE.

         Procedural History

         Petitioner, Jefferson Faggard, [1] is a convicted inmate currently incarcerated at the River Bend Detention Center in Lake Providence, Louisiana. He was charged with two counts of creation or operation of a clandestine laboratory for the unlawful manufacture of a controlled dangerous substance in violation of Louisiana Revised Statute 40:983, occurring on or about October 9, 2013 (count one) and on November 8, 2012 (count two), and one count of possession of methamphetamine in violation of Louisiana Revised Statute 4O;967(C), occurring on February 6, 2014 (count three).[2] Trial began on March 3, 2015. After the State rested its case on March 5, 2015, Faggard withdrew his not-guilty pleas and pleaded guilty to all counts.[3] Following a plea colloquy, the trial court sentenced him to 15 years imprisonment at hard labor on counts one and two and five years imprisonment on count three, with all three sentences to run concurrently. That same day, the State filed a multiple-offender bill of information charging him as a third-felony offender. Faggard pleaded guilty to the multiple bill. The trial court vacated his sentence on count two and sentenced him as a third-felony offender to 15 years imprisonment at hard labor to run concurrently with all other sentences.[4] He filed a pro se motion for appeal that incorporated a request to withdraw his guilty plea. The trial court granted his motion for appeal, but denied the request to withdraw his guilty plea.[5]

         On direct appeal, appointed counsel filed an Anders[6] brief citing no non-frivolous issues for review and sought to withdraw as counsel of record. Upon independent review of the record, the Louisiana Fifth Circuit Court of Appeal determined there were no non-frivolous issues for direct review and granted the motion to withdraw. In affirming the convictions and sentences, the court of appeal also considered and rejected Faggard's seven pro se assignments of error raised by supplemental appellant brief.[7] His motion for rehearing was denied. On February 10, 2017, the Louisiana Supreme Court denied his application for a writ of certiorari.[8]

         Several months later, Faggard filed his federal application for habeas corpus relief.[9]In that application, he raises four grounds for relief: (1) his conviction is based on a defective and invalid bill of information that failed to state the essential elements for the charges of creation or operation of a clandestine laboratory for the unlawful manufacture of a controlled dangerous substance; (2) the court of appeal erroneously found there were no non-frivolous issues for review on direct appeal and allowed counsel to withdraw; (3) his guilty plea was constitutionally infirm because it was not knowing intelligent or voluntary; and (4) trial counsel's performance was constitutionally deficient. The State concedes that the federal application is timely and argues the claims should be denied on the merits.[10]

         Facts

         On direct appeal, the Louisiana Fifth Circuit Court of Appeal summarized the facts adduced at trial as follows:

Although defendant pled guilty to two counts of creation or operation of a clandestine laboratory for the unlawful manufacture of a controlled dangerous substance and one count of possession of methamphetamine, he did not enter his guilty pleas until after the State rested its case at trial. During the guilty plea colloquy, the State provided that it "would rely on the Record of the trial up to this point with the sworn testimony of all its witnesses as a factual basis for this plea."
At trial, Detective Shawn Vinson testified that in November of 2012, he became involved in an investigation of a possible "meth lab" at 2321 Justin Lane in Harvey, Louisiana. On November 8, 2012, Detective Vinson and other officers went to the residence and ran a name check on the legal occupant of the residence, Christina Wallace. Detective Vinson learned that Ms. Wallace had a traffic attachment. When Ms. Wallace arrived at the residence, she was arrested on the traffic attachment. In the doorway of the house, Detective Vinson made contact with other occupants of the residence, including defendant and his father, Jefferson Faggard, Sr. Detective Vinson testified that from the doorway, in plain view, the officers could see components of what they believed was a "meth lab." He further testified that there was a "chemical smell."
Ms. Wallace signed a consent to search form, and the officers entered the residence. Detective Vinson testified that the officers recovered "precursors or ingredients to use in methamphetamine or making methamphetamine" including brake fluid, tinfoil, camping fuel, cold packs, clear plastic bags with "crystalized white substances" and "white powder residue, " and a blender containing a "white powdery substance." He also testified that officers recovered a spoon with cotton in it and an "off-white dry liquid substance, " and some used syringes. Detective Vinson further testified that officers discovered a clear mason jar with tubes extending from it, which he stated was commonly called a "one-pot system" used in the creation of methamphetamine.
Christina Wallace testified that in November of 2012, she lived at 2321 Justin Lane. She testified that she pled guilty to creation or operation of a clandestine laboratory in order to "get out of jail, " but she did not commit the crime. Ms. Wallace stated that she was dating defendant in November of 2012 and that they used controlled dangerous substances together, but neither of them engaged in the creation or operation of a methamphetamine lab. Although she allowed defendant, his father, Jefferson Faggard, Sr., and his mother, Janet Hamblen, to occasionally sleep at her residence, Ms. Wallace did not see anyone engage in the production of methamphetamine.
Pamela Cyprian, a forensic scientist, was accepted as an expert in the examination and analysis of controlled dangerous substances. Ms. Cyprian testified that she analyzed evidence recovered from Ms. Wallace's residence and it contained a substance that she conclusively identified as methamphetamine.
Deputy Matthew Thomas testified that on October 9, 2013, between 3:00 and 3:30 a.m., he was on patrol when he saw a suspicious man, later identified as defendant, riding a bicycle with several bags attached to it, including a golf bag with several golf clubs. Deputy Thomas asked defendant to stop and talk to him, and defendant complied. Defendant indicated that his name was Joshua Faggard and that his birthdate was February 23, 1978. According to Deputy Thomas, the last name, Faggard, reminded him that officers were looking for Jefferson Faggard. He stated that he asked defendant if he knew Jefferson Faggard, and defendant replied that he was his brother. After communicating on the " N.C. I.C. channel, " everything came back clear for the name Joshua Faggard, so Deputy Thomas allowed defendant to leave. However, when he returned to his vehicle and ran the name Jefferson Faggard with the birthdate provided by defendant, the computer showed a photograph of defendant.
Deputy Thomas testified that he located defendant again and asked him to stop, but defendant fled, discarding his bicycle and bags in the process. A backpack connected to the bicycle began to emit smoke and a green substance began to "ooze" out. Deputy Thomas testified that the fire department pulled items out of the backpack, including commercial lye, drain cleaner, a Gatorade bottle with an unknown substance, a pack of lithium batteries, and a soda bottle containing a green fluid and with a "hose attached to the bottle."
Deputy Dwain Rullman testified that on February 6, 2014, at approximately 9:30 p.m. or 10:00 p.m., he responded to a 9-1-1 call regarding two suspicious individuals on Carol Sue Avenue. Deputy Rullman saw a suspicious person, later identified as defendant, riding a bicycle. He stated that defendant was wearing gloves, had a backpack, and was hurrying towards the exit gate of an apartment complex. Deputy Rullman testified that he stopped defendant, who advised him that his name was Joshua Badeaux and provided his birthdate as August 23, 1978. According to Deputy Rullman, when he ran the information provided by defendant, nothing came up in the system. He attempted to detain defendant because he believed that defendant gave him a false name, but defendant pushed him and fled to an apartment.
According to Deputy Rullman, he caught up with defendant as he pounded on the apartment door. Defendant continued to resist, so two other officers responded and assisted him in apprehending defendant. Deputy Rullman conducted a search of defendant's person and found identification showing that he was Jefferson Faggard and also some narcotics. On defendant's person, he also found plastic bags containing a white-residue, later determined to be methamphetamine, a pill canister containing a white residue, and a syringe. Deputy Rullman arrested defendant for possession of methamphetamine. At the time of his arrest, defendant had an attachment for his arrest for creation of a clandestine laboratory for the unlawful manufacture of a controlled dangerous substance.
Paul Forst, an employee of a company called AFRIS, testified that AFRIS runs an electronic system to track over-the-counter sales of Sudafed and Ephedrine products. According to Mr. Forst, Louisiana law requires that no more than nine grams of Sudafed or Ephedrine be purchased by an individual in a 30-day period. Mr. Forst testified that sales logs showed that there were 107 transactions associated with defendant's name between May 31, 2012 and February 3, 2014.
Detective Chris Comeaux was accepted as an expert in methamphetamine manufacturing. Detective Comeaux testified that the essential ingredient for a "complete one-pot meth lab" is pseudoephedrine, which is contained in over-the-counter nasal decongestants. Detective Comeaux further explained the common processes and procedures for making methamphetamine.
Detective Comeaux testified that the items recovered from Ms. Wallace's residence on Justin Lane could be used to manufacture methamphetamine using a "one-pot meth lab." Detective Comeaux also testified that the items pulled out of the backpack on defendant's bicycle during the October 9, 2013 incident were related to the production of methamphetamine. He stated that they are supplies used to create or operate a clandestine laboratory.
Finally, Detective Comeaux testified regarding the plastic bags found in defendant's pockets during the February 6, 2014 incident. He stated that it appeared that the plastic bags were used in the methamphetamine manufacturing process because of the way they were folded and the leftover residue in the bags.[11]

         Standards of Review on the Merits

         Title 28 U.S.C. § 2254(d)(1) and (2), as amended by The Antiterrorism and Effective Death Penally Act of 1996 (AEDPA), provides the applicable standards of review for pure questions of fact, pure questions of law, and mixed questions of both. A state court's purely factual determinations are presumed to be correct and a federal court will give deference to the state court's decision unless it "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); see also 28 U.S.C. § 2254(e)(1) ("In a proceeding instituted by an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State court, a determination of a factual issue made by a State court shall be presumed to be correct. The applicant shall have the burden of rebutting the presumption of correctness by clear and convincing evidence."). With respect to a state court's determination of pure questions of law or mixed questions of law and fact, a federal court must defer to the decision on the merits of such a claim unless that decision "was 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).

         The "'contrary to' and 'unreasonable application' clauses [of § 2254(d)(1)] have independent meaning." Bell v. Cone, 535 U.S. 685, 694 (2002). A state-court decision is "contrary to" clearly established precedent if the state court applies a rule that contradicts the governing law set forth in the United States Supreme Court's cases or if the state court confronts a set of facts that are materially indistinguishable from a decision of the United States Supreme Court and nevertheless arrives at a result different from United States Supreme Court precedent. Williams v. Taylor, 529 U.S. 362, 405-06 (2000); Wooten v. Thaler, 598 F.3d 215, 218 (5th Cir.), cert, denied, 131 S.Ct. 294 (2010). An "unreasonable application" of [United States Supreme Court] precedent occurs when a state court "identifies the correct governing legal rule... but unreasonably applies it to the facts of the particular state prisoner's case." Williams, 529 U.S. at 407-08; White v. Woodall, 134 S.Ct. 1697, 1706 (2014).

         It is well-established that "an unreasonable application is different from an incorrect one." Bell, 535 U.S. at 694. A state court's merely incorrect application of Supreme Court precedent simply does not warrant habeas relief. Puckett v. Epps, 641 F.3d 657, 663 (5th Cir. 2011) ("Importantly, 'unreasonable' is not the same as 'erroneous' or 'incorrect'; an incorrect application of the law by a state court will nonetheless be affirmed if it is not simultaneously unreasonable."). "[E]ven a strong case for relief does not mean the state court's contrary conclusion was unreasonable" under the AEDPA. Harrington v. Richter, 562 U.S. 86, 102 (2011). Section 2254(d) preserves authority to issue the writ in cases where there is "no possibility fairminded jurists could disagree that the state court's decision conflicts with [United States Supreme Court] precedents." Harrington, 562 U.S. at 102 (emphasis added); see also Renico v. Lett, 559 U.S. 766, 130 S.Ct. 1855, 1866 (2010) ("AEDPA prevents defendants-and federal courts-from using federal habeas corpus review as a vehicle to second-guess the reasonable decisions of state courts.").

         Analysis

         A. Sufficiency of the Bill of Information

         Faggard claims that the bill of information did not properly charge him with the crime of creation or operation of a clandestine laboratory for the unlawful manufacture of a controlled dangerous substance. He argues that the intermediate court of appeal erred in finding the bill of information proper as part of its Anders review on direct appeal. The Louisiana Fifth Circuit reasoned:

The bill of information properly charged defendant and presents no non-frivolous issues for appeal. As required, it plainly, concisely, and definitely states the essential facts constituting the offenses charged, and it sufficiently identifies defendant and the crimes charged. See La. C.Cr.P. arts. 464-466.

         Faggard asserts that the bill of information failed to set forth the particular subsection (1) through (4) under Louisiana Revised Statute 4O;983(A), [12] as an essential element of the criminal charge for creation or operation of a clandestine laboratory. He first raised the argument as a "supplemental claim" in his application for writ of certiorari filed with the Louisiana Supreme Court.[13] The Louisiana Supreme Court denied relief without stated reasons.[14]

         In Liner v. Phelps, the United States Fifth Circuit Court of Appeals set forth the relevant legal considerations:

"It is settled in this Circuit that the sufficiency of a state indictment is not a matter for federal habeas corpus relief unless it can be shown that the indictment is so defective that the convicting court had no jurisdiction." Branch v. Estelle, 631 F.2d 1229, 1233 (5th Cir. 1980). See also Meyer v. Estelle, 621 F.2d 769, 771 (5th Cir. 1980); Murphy v. Beto, 416 F.2d 98, 100 (5th Cir. 1969). This Court has also observed that habeas corpus can be invoked with respect to the sufficiency of an indictment only when the indictment is so fatally defective that under no circumstances could a valid conviction result from facts provable under the indictment, and that such a determination "can be made only by looking to the law of the state where the indictment was issued." Johnson v. Estelle, 704 F.2d 232, 236 (5th Cir. 1983) (emphasis added). Specifically, the conclusion as to whether a state trial court was deprived of jurisdiction by a fatally defective indictment is a question foreclosed to a federal habeas court "[w]hen it appears ... that the sufficiency of the indictment was squarely presented to the highest court of the state on appeal, and that court held that the trial court had jurisdiction over the case." Murphy v. Beto, 416 F.2d 98, 100 (5th Cir. 1969). See also Bueno v. Beto, 458 F.2d 457, 459 (5th Cir.), cert, denied, 409 U.S. 884, 93 S.Ct. 176, 34 L.Ed.2d 140 (1972); Lowery v. Estelle, 696 F.2d 333, 337 (5th Cir. 1983) ("... the predicate conclusion of no jurisdiction derives wholly from state law controlling the validity of Texas indictments." (Emphasis added.)).

Liner v. Phelps, 731 F.2d 1201, 1203 (5th Cir. 1984); see also Evans v. Cain, 577 F.3d 620, 624 (5th Cir. 2009).

         Here, the state courts, including specifically the Louisiana Supreme Court, determined the validity of the bill of information. In denying relief, the highest state court presumably found that the bill of information properly conferred jurisdiction upon the state trial court. See Ylst v. Nunnemaker, 501 U.S. 797, 802 (1991); Alexander v. McCotter, 775 F.2d 595, 599 (5th Cir. 1985) ("By refusing to grant appellant relief... the Texas Court of Criminal Appeals has necessarily, though not expressly, held that the Texas courts have jurisdiction and that the indictment is sufficient for that purpose."). To the extent the state courts found that the charging document was legally sufficient as a matter of state law, the federal courts have no authority to overrule or second-guess the state courts' rulings on the interpretation or application of their own procedural rules.[15] "The principle that state courts are the final arbiters of state law is well-settled." Levy Gardens Partners 2007, L.P. v. Commonwealth Land and Title Ins. Co., 706 F.3d 622, 629 (5th Cir. 2013); accord Dickerson v. Guste, 932 F.2d 1142, 1145 (5th Cir. 1991) ("We will not review a state court's interpretation of its own law in a federal habeas corpus proceeding. We do not sit as a 'super' state supreme court in such a proceeding to review errors under state law." (internal citation and quotation marks omitted)).

         Even if the claim is considered, it is clear that Faggard was fully apprised of the nature of the charges against him. The record shows that Faggard had fair notice of the charges and an adequate opportunity to establish a defense to these charges. The bill of information notified Faggard of the statutory provisions he was accused of violating and specified the date of each crime. The information charged two dates, October 9, 2013 and November 8, 2012, on which "he did create and/or operate a clandestine laboratory for the unlawful manufacture of a controlled dangerous substance" in violation of La. R.S. 40:983. He had notice of the nature of the criminal offenses and the specific criminal statute, which defines those circumstances that constitute the "creation or operation of a clandestine laboratory for the unlawful manufacture of a controlled dangerous substance."

         Additionally, as part of his pro se motion to quash the bill of information on grounds that the prosecution was not timely instituted, the trial court delved into the elements underlying the charges and the basis for those charges.[16] At the November 2014 hearing on the motion, the prosecutor stated that Faggard was being charged with subsections (A)(1) and (2), specifically, and not subsections (3) or (4).[17] The trial court asked Faggard if he understood what he was being charged with and he stated that he did. He was thus fully informed and knew the nature of the charges against him at least four months before trial. He sat through several days of trial during which the State presented its entire case. After hearing all of the evidence against him, he chose to enter guilty pleas.

         In sum, the bill of information filed by the State provided sufficient notice to protect his due-process rights. The record shows that he was fairly informed of the precise charges against him so that no prejudice resulted from either surprise or lack of notice and he received protection from double jeopardy. United States v. Debrow, 346 U.S. 374, 376 (1953). The state court's denial of relief was neither contrary to, nor involved an unreasonable application of, clearly established federal law, as determined by the Supreme Court of the United States. He is not entitled to relief on this claim.

         B. Appellate Court Error

         Faggard asserts that the state appellate court unreasonably applied the standard under Anders v. California in permitting appointed counsel to withdraw. He argues that there was a non-frivolous issue, that is, the State had no authority to charge him in a superseding information with the November 2012 offense.

         In considering appointed counsel's Anders brief and motion to withdraw on direct review, the Louisiana Fifth Circuit first set out the applicable federal law and corresponding state law:

In Anders, supra, the United States Supreme Court stated that appointed appellate counsel may request permission to withdraw if he finds the case to be wholly frivolous after a conscientious examination of it. The request must be accompanied by "a brief referring to anything in the record that might arguably support the appeal" so as to provide the reviewing court "with a basis for determining whether appointed counsel have fully performed their duty to support their clients' appeals to the best of their ability" and to assist the reviewing court "in making the critical determination whether the appeal is indeed so frivolous that counsel should be permitted to withdraw." McCoy v. Court of Appeals of Wisconsin, Dist. 1, 486 U.S. 429, 439, 108 S.Ct. 1895, 1902, 100 L.Ed.2d 440 (1988).
In Jyles, 96-2669 at 2, 704 So.2d at 241, the Louisiana Supreme Court stated that an Anders brief need not tediously catalog every meritless pretrial motion or objection made at trial with a detailed explanation of why the motions or objections lack merit. The supreme court explained that an Anders brief must demonstrate by full discussion and analysis that appellate counsel "has cast an advocate's eye over the trial record and considered whether any ruling made by the trial court, subject to the contemporaneous objection rule, had a significant, adverse impact on shaping the evidence presented to the jury for its consideration." Id.
When conducting a review for compliance with Anders, an appellate court must conduct an independent review of the record to determine whether the appeal is wholly frivolous. If, after an independent review, the reviewing court determines there are no non-frivolous issues for appeal, it may grant counsel's motion to withdraw and affirm the defendant's conviction and sentence. Bradford, 95-929 at 4, 676 So.2d at 1110.[18]

         After reviewing the brief presented and conducting an independent analysis of the record, the court of appeal concluded there were no non-frivolous issues surrounding Faggard's guilty plea, multiple-offender stipulation or sentencing to be raised on appeal. The appellate court reasoned:

In the present case, defendant's appellate counsel asserts that after a careful review of the record, he can find no non-frivolous issues to raise on appeal. Counsel states that defendant entered an unqualified guilty plea, thereby waiving all non-jurisdictional defects. He notes that no reservation ...

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