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Williams v. Tanner

United States District Court, E.D. Louisiana

January 22, 2018

KIRK WILLIAMS
v.
ROBERT TANNER, CCE, WARDEN CRIMINAL DISTRICT COURT

         SECTION “R” (4)

          REPORT AND RECOMMENDATION

          KAREN WELLS ROBY CHIEF UNITED STATES MAGISTRATE JUDGE

         The 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).[1]

         I. Factual and Procedural Background[2]

         Williams is a convicted inmate currently incarcerated in the Louisiana State Police Barracks in Zachary, Louisiana.[3] On August 16, 2007, Williams was indicted by an Orleans Parish Grand Jury for the second degree murder of Travain Coates.[4] He entered a plea of not guilty on August 21, 2007.[5]

         The 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.[6]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.

         The men 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.

         As 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.

         Several 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.

         Williams was tried before a jury on May 13 through 15, 2009, and was found guilty of the lesser included offense of manslaughter.[7] 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.[8] The Court also denied the motion to reconsider the sentence on September 1, 2009.[9]

         On direct appeal to the Louisiana Fourth Circuit Court of Appeal, Williams's appointed counsel asserted three errors:[10] (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.[11] 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.[12]

         On 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.[13] 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.

         After receiving a response from the State, the Trial Court denied the application as meritless on October 9, 2013.[14] The Louisiana Fourth Circuit denied Williams's related writ application on December 20, 2013, finding no error in the Trial Court's ruling.[15] The Louisiana Supreme Court also denied Williams's writ application without stated reasons on September 19, 2014.[16]

         In the 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.[17] 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.[18] 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 the resentencing.

         II. Federal Habeas Petition

         On June 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.[19] 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.[20] The matter was referred to the undersigned for further proceedings on February 9, 2017.[21]

         On the 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).[22]

         Williams 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.[23]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.

         III. General Standards of Review

         The Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), Pub. L. No. 104-132, 110 Stat. 1214, [24] applies to this petition, which is deemed filed in this Court under the federal mailbox rule on November 7, 2014.[25] 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)).

         The 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.

         IV. Request for Evidentiary Hearing

         Williams 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)).

         In 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.

         This 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.[26]

         V. Standards of a Merits Review

         The 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.

         A state 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).

         A state 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 ...


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