United States District Court, E.D. Louisiana
REPORT AND RECOMMENDATION
WELLS ROBY CHIEF UNITED STATES MAGISTRATE JUDGE
petitioner, Kirk Williams (“Williams”) filed an
Amended Petition (Rec. Doc. No. 25) pursuant to the District
Judge's prior Order (Rec. Doc. No. 24) to assert only
claims raised in his original petition for which review was
exhausted in the state courts. The matter as amended was
referred (Rec. Doc. No. 28) to this United States Magistrate
Judge for further proceedings and issuance of a Report and
Recommendation on the remaining claims. See 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).
Factual and Procedural
is a convicted inmate currently incarcerated in the Louisiana
State Police Barracks in Zachary, Louisiana. On August 16,
2007, Williams was indicted by an Orleans Parish Grand Jury
for the second degree murder of Travain Coates. He entered a plea
of not guilty on August 21, 2007.
record reflects that, on the night of July 1, 2007, Williams,
Coates, and Jeffrey Shaw, who had been friends since
childhood, planned to celebrate Coates's twenty-sixth
birthday.Earlier in the day, Shaw and Williams were
together and had smoked marijuana and each taken one ecstasy
pill. Shaw later picked up Coates in his father's car
around 8:30 p.m. in Avondale, Louisiana where they all lived.
The two men then purchased and drank a half pint of Hennessy
brandy before picking up Williams. Williams had two
marijuana-laced cigars with him. The three men then picked-up
two more friends, Alex Allen and J.D. Garner. Shaw, Coates,
and Williams smoked some marijuana while they waited for
Allen to get dressed. Allen had a ten pack of ecstasy and
took one pill before leaving the house.
left and purchased more Hennessy brandy to drink at a nearby
store. They then returned to Allen's house to hang out.
Garner and Allen eventually left in one car to go to the
Hookah Bar in New Orleans. Shaw, Williams, and Coates also
left to go to the House of Blues in New Orleans. On the way
into the city, Coates and Williams smoked the two
marijuana-laced cigars. Williams decided that he did not want
to go to the House of Blues and instead wanted to go see his
children. Shaw agreed to take him but first stopped to
purchase cigarettes. When he returned to the car, Coates had
moved into the driver's seat, and Williams was seated in
the back seat on the passenger side. Shaw got into the front
passenger seat, and they drove away.
Coates drove to the 1500 block of North Johnson Street where
Williams's children lived, Shaw heard him say, “You
can't stop destiny.” He then saw that Williams was
pointing a gun at Coates. Shaw said, “No, Kirk, ”
and then saw a flash of light in the car and realized that
Williams shot Coates. Shaw was able to stop the car by
shifting it into park. Williams got out and fled the area on
foot. Shaw went around the car to the driver's side to
see if Coates was alive. He then ran to the house where he
believed Williams's girlfriend and children lived to call
911 and his father.
hours after the shooting, the police officers learned that
Williams had been taken to Touro Hospital by his brother,
Trazi Johnson, because of his apparently impaired condition.
Officer Winston Harbin and Detective Regina Williams were
able to interview Williams on the night of the shooting after
reading him his rights and obtaining a written waiver.
Williams was crying when he was first interviewed and later
during his recorded statement. Williams could not recall what
happened after he asked to be taken home, except that he
heard voices in his head telling him to shoot.
was tried before a jury on May 13 through 15, 2009, and was
found guilty of the lesser included offense of
manslaughter. At a hearing held on July 7, 2009, the
Trial Court denied Williams's motion for a new trial and
sentenced him to serve twenty-seven (27) years in prison at
hard labor without benefit of parole, probation, or
suspension of sentence. The Court also denied the motion to
reconsider the sentence on September 1, 2009.
direct appeal to the Louisiana Fourth Circuit Court of
Appeal, Williams's appointed counsel asserted three
errors: (1) the Trial Court erred in instructing
the jury on the predicate offense applicable to one of the
definitions of manslaughter and in denying the motion for new
trial based on that error; (2) the evidence was insufficient
to support the verdict; and (3) the Trial Court erred in
denying the motion to reconsider the excessive sentence. On
September 15, 2010, the Louisiana Fourth Circuit affirmed
Williams's conviction but vacated the
sentence. While the Court found no merit in the
claims raised by Williams, on its errors patent review, the
Court determined that Williams had not waived the delay for
sentencing following the denial of his motion for new trial.
Based on this, the Court vacated the sentence and remanded
the matter for resentencing. The Trial Court resentenced
Williams on January 14, 2011, to serve twenty-seven (27)
years in prison at hard labor without benefit of parole,
probation, or suspension of sentence.
October 26, 2011, Williams filed an application for
post-conviction relief with the Trial Court alleging that he
received ineffective assistance from trial counsel for
failure to enter an initial plea of not guilty and not guilty
by reason of insanity. As a result, Williams argued, this
precluded the appointment of a sanity commission and denied
the Trial Court authority to charge the jury on
Williams's mental condition at the time of the crime,
which also left no support for the defense that his actions
were induced by substance abuse. In addition, Williams argued
that his counsel failed to adequately cross-examine Shaw
about the discrepancies and lies in his trial testimony
regarding the men's use of ecstasy on the day and night
of the shooting.
receiving a response from the State, the Trial Court denied
the application as meritless on October 9,
2013. The Louisiana Fourth Circuit denied
Williams's related writ application on December 20, 2013,
finding no error in the Trial Court's
ruling. The Louisiana Supreme Court also denied
Williams's writ application without stated reasons on
September 19, 2014.
meantime on June 18, 2014, Williams submitted a Motion to
Correct an Illegal Sentence to the Trial Court arguing that
he should not have been sentenced to a term without benefit
of parole. The Trial Court granted the motion on
March 18, 2015, and resentenced Williams on March 31, 2015,
to an amended sentence of twenty-seven (27) years in prison
at hard labor without restrictions on parole
eligibility. The Court denied Williams's oral
motion to reconsider the sentence and appointed counsel for
purposes of appeal, although no appeal was ever lodged after
Federal Habeas Petition
25, 2015, the undersigned issued a Report and Recommendation
(Rec. Doc. No. 22) recommending dismissal of Williams federal
petition for failure to exhaust state court review of eight
of the ten issues asserted in his original petition. Based
thereon, the District Court granted Williams leave to amend
his petition to assert only the two exhausted
claims. Williams amended his petition to assert
and proceed with his two exhausted claims that he received
ineffective assistance of counsel when his trial counsel: (1)
failed to enter a plea of not guilty and not guilty by reason
of insanity to allow for a full insanity defense beyond
intoxication and failed to move for the appointment of a
sanity commission to determine petitioner's competence to
stand trial or his mental state at the time of the offense;
and (2) failed to properly cross-examine Shaw about his
conflicted trial and grand jury testimony. The matter
was referred to the undersigned for further proceedings on
February 9, 2017.
Court's order, the State filed an updated response in
opposition to Williams's amended petition in which it
asserted that Williams is not entitled to federal habeas
relief on the remaining claims because they are without merit
under the standards set forth in Strickland v.
Washington, 466 U.S. 668 (1984).
filed a reply to the State's opposition urging that his
counsel's errors limited the defense's ability to
bring evidence that he was not in his right mind at the time
of the shooting.He further argues that counsel's
failure to properly cross-examine Shaw resulted in his
conviction by insufficient evidence. Williams also asserts
that he should be granted an evidentiary hearing to clarify
the factual issues presented.
General Standards of Review
Antiterrorism and Effective Death Penalty Act of 1996
(“AEDPA”), Pub. L. No. 104-132, 110 Stat. 1214,
applies to this petition, which is deemed filed in this Court
under the federal mailbox rule on November 7,
2014. The threshold questions on habeas review
under the amended statute are whether the petition is timely
and whether the claim raised by the petitioner was
adjudicated on the merits in state court; i.e., the
petitioner must have exhausted state court remedies and the
claims must not be in “procedural default.”
Nobles v. Johnson, 127 F.3d 409, 419-20 (5th Cir.
1997) (citing 28 U.S.C. § 2254(b), (c)).
issue of Williams's failure to fully exhaust state court
review has been addressed and remedied by the prior orders of
this Court and Williams's amended petition. The State
concedes and the record reflects that Williams's original
petition as amended was timely filed and neither of the two
remaining claims is in procedural default.
Request for Evidentiary Hearing
asserts that he is entitled to an evidentiary hearing to
further develop the factual support for his claims. To the
extent he suggests that the state courts should have provided
him with an evidentiary hearing, the claim would not entitle
him to federal habeas corpus review or relief. The law is
well settled that “infirmities in State habeas
proceedings do not constitute grounds for relief in federal
court.” Rudd v. Johnson, 256 F.3d 317, 319
(5th Cir. 2001). An attack on the state habeas proceeding is
an attack on a proceeding collateral to the detention and not
the detention itself, which is the issue to be addressed in
federal habeas cases. Id., at 320; Drevino v.
Johnson, 168 F.3d 173, 180 (5th Cir. 1999);
Lackawanna Cty. Dist. Attorney v. Coss, 532 U.S.
394, 402-403 (2001) (no constitutional mandate that states
provide post-conviction review) (citing Pennsylvania v.
Finley, 481 U.S. 551, 557 (1987)).
addition, Williams request for a federal evidentiary hearing
in this Court on his ineffective assistance claims must be
denied. As discussed by the Supreme Court in Cullen v.
Pinholster, 563 U.S. 170, 185-86 (2011), the decision to
hold an evidentiary hearing is a statutorily mandated
determination limited by the provisions of § 2254(e)(2).
The statute restricts evidentiary hearings to those instances
where the claim relies on a new rule of law retroactively
applied on collateral review for which the predicate could
not have been previously discovered with due diligence and
where the facts would be sufficient to undermine a guilty
verdict by clear and convincing evidence. The Cullen
Court recognized that where these requirements are not met,
evidence presented for the first time may not be considered
on federal habeas review to address the merits of the claims
under § 2254(d)(1). Id.
Court, therefore, is limited to review of the evidence and
record that was before the state courts which reviewed the
merits of the type of claims at issue. Cullen, 563
U.S. at 185; Blue v. Thaler, 665 F.3d 647, 656 (5th
Cir. 2011); Gallow v. Cooper, 505 F. App'x 285,
295-96 (5th Cir. 2012); Thomas v. Thaler, No.
12-50280, 2013 WL 1297269, at *4-*5 (5th Cir. Apr. 2, 2013).
In this case, Williams has not based his claims on a new,
retroactive rule of law under the provisions of §
2254(e)(2). He has made no showing of entitlement to relief
from his conviction by clear and convincing evidence
undermining his guilt. For the reasons discussed below, he
has failed to establish his entitlement to federal habeas
relief. Therefore, there is no basis for this Court to grant
an evidentiary hearing.
Standards of a Merits Review
AEDPA standard of review is governed by § 2254(d) and
the Supreme Court's decision in Williams v.
Taylor, 529 U.S. 362 (2000). It provides different
standards for questions of fact, questions of law, and mixed
questions of fact and law.
court's determinations of questions of fact are presumed
correct and the Court must give deference to the state court
findings unless they were 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)
(2006); see Hill v. Johnson, 210 F.3d 481, 485 (5th
Cir. 2000), cert. denied, 532 U.S. 1039 (2001). The
amended statute also codifies the “presumption of
correctness” that attaches to state court findings of
fact and the “clear and convincing evidence”
burden placed on a petitioner who attempts to overcome that
presumption. 28 U.S.C. § 2254(e)(1) (2006).
court's determination of questions of law and mixed
questions of law and fact are reviewed under §
2254(d)(1), as amended by the AEDPA. The standard provides
that deference be given to the state court's decision
unless the decision is “contrary to, or involves an
unreasonable application of clearly established federal
law” as determined by the United States Supreme Court.
Hill, 210 F.3d at 485. The “critical
point” in determining the Supreme Court rule to be
applied “is that relief is available under §
2254(d)(1)'s unreasonable-application clause if, and only
if, it is so obvious that a clearly established rule applies
to a given set of facts that there could be no
‘fairminded disagreement' on the question.”
White v. Woodall, __ U.S. __, 134 S.Ct. 1697,
1706-07 (2014) (citing Harrington v. Richter, 562
U.S. 86, 103 (2011)). “Thus, ‘if a habeas court
must extend a rationale ...