United States District Court, M.D. Louisiana
take notice that the attached Magistrate Judge's Report
has been filed with the Clerk of the U.S. District Court.
accordance with 28 U.S.C. § 636(b)(1), you have 14 days
after being served with the attached report to file written
objections to the proposed findings of fact, conclusions of
law, and recommendations set forth therein. Failure to file
written objections to the proposed findings, conclusions and
recommendations within 14 days after being served will bar
you, except upon grounds of plain error, from attacking on
appeal the unobjected-to proposed factual findings and legal
conclusions accepted by the District Court.
NO EXTENSION OF TFME SHALL BE GRANTED TO FILE WRITTEN
OBJECTIONS TO THE MAGISTRATE JUDGE'S REPORT.
MAGISTRATE JUDGE'S REPORT AND
WILDER-DOOMES UNITED STATES MAGISTRATE JUDGE
the Court is the application of Petitioner Joshua Sadler for
a writ of habeas corpus pursuant to 28 U.S.C. § 2254.
For the reasons that follow, Petitioner's application
should be denied. There is no need for oral argument or for
an evidentiary hearing.
December 23, 2008, Petitioner was charged by grand jury
indictment in the Nineteenth Judicial District Court for the
Parish of East Baton Rouge, State of Louisiana, with one
count of second-degree murder. After a trial by jury
conducted in September 2010, the jury found Petitioner guilty
of the charged offense. Upon the denial of post-trial
motions, the trial judge sentenced Petitioner on October 21,
2010, to life imprisonment, without the benefit of probation,
parole or suspension of sentence.
pursued a direct appeal, arguing that his conviction pursuant
to a non-unanimous jury verdict violated his rights under the
United States and Louisiana Constitutions. On June 10, 2011
the Louisiana Court of Appeal for the First Circuit affirmed
Petitioner's conviction and sentence. State v.
Sadler, 2011 WL 3557836 (La.App. 1 Cir. June 10, 2011).
Petitioner sought further review before the Louisiana Supreme
Court and, on March 23, 2012, that Court denied review,
without comment. See State v. Sadler, 85 So.3d 85
(La. 2012). Upon the failure of Petitioner to thereafter file
an application for a writ of certiorari in the United States
Supreme Court, his conviction and sentence became final on
June 21, 2012 after expiration of the ninety-day period
allowed for him to do so. See Roberts v. Cockrell,
319 F.3d 690, 694 (5th Cir. 2003) (recognizing that a
conviction becomes final for federal purposes after the
90-day period allowed for a petitioner to proceed in the
United States Supreme Court if he has not pursued such
about January 24, 2013,  Petitioner filed a pro se
application for post-conviction relief ("PCR") in
the state trial court. Petitioner asserted therein (1) that
his constitutional rights were violated by the use of
statements and consents obtained during questioning by police
in the hospital in violation of Miranda v. Arizona,
384 U.S. 436 (1966), (2) that the prosecution engaged in
misconduct during closing arguments by exceeding the scope of
rebuttal and by referring to DNA evidence that had not been
introduced during trial, and (3) that he was actually
innocent of the charged offense under the Louisiana doctrine
of self-defense. The State filed procedural objections and
an Answer addressing Petitioner's claims in the PCR
application. On June 6, 2013, the State Court
Commissioner issued a Report recommending that
Petitioner's claims (as re-characterized, see
note 4) be denied. On July 25, 2013, the trial court adopted
the Commissioner's Recommendation and dismissed
Petitioner's PCR application.
about September 10, 2013, Petitioner filed an application for
supervisory review in the Louisiana First Circuit Court of
Appeal, which court denied review on November 21, 2013.
State v. Sadler, 2013 WL 12125625 (La.App. 1 Cir.
Nov. 21, 2013). Petitioner thereafter sought further review
before the Louisiana Supreme Court on December 18, 2013,
which Court also denied review, without comment, on September
12, 2014. State ex rel. Sadler v. State, 147 So.3d
702 (La. 2014).
submitted his federal habeas corpus application for filing
herein on or about October 19, 2014. Petitioner asserts the
following grounds for relief:
Ground One: His conviction was obtained as a result of a
non-unanimous jury verdict in violation of the Louisiana and
Ground Two: His waiver of the rights guaranteed under
Miranda v. Arizona, supra, was not knowing and
intelligent because he could not “read, write, nor
understand and comprehend intelligently and rationally”
these rights, and his trial attorney provided ineffective
assistance by failing to adequately present this claim at a
hearing on a pre-trial motion to suppress;
Ground Three: The prosecution engaged in misconduct by
exceeding the scope of rebuttal during closing arguments and
by commenting upon DNA evidence that had not been presented
at trial; and
Ground Four: He is in fact innocent of the charged offense in
light of Louisiana's self-defense doctrine. Petitioner
further asserts that this claim was never addressed by the
state courts during post-conviction review proceedings.
facts, as summarized in the opinion of the Louisiana Court of
Appeal for the First Circuit, are as follows:
On December 22, 2008, at approximately 7:00 p.m. the victim,
Cary Ray Dungan, picked up his friend, Robert O'Connell,
and went to Lambert's bar in Baton Rouge to celebrate
O'Connell's birthday. Kacey Atkinson, a female
acquaintance of Dungan's, later met the men at the bar.
According to Atkinson, she often went out with Dungan in
exchange for monetary payment. Later that night, the group
left Lambert's and went to Dancer's nightclub on
Airline Highway. While at the club, Dungan used cash to
purchase drinks for his friends.
At sometime thereafter, Atkinson spoke to the defendant on
the telephone. The defendant later arrived at Dancer's
and sat in the back of the club. According to Atkinson, the
defendant stayed at Dancer's for approximately fifteen to
twenty minutes and then he left. The defendant did not make
any contact with Atkinson at Dancer's.
Eventually, the group left Dancer's, and Dungan drove
O'Connell home to his apartment on Sherwood Forest
Boulevard. Atkinson accompanied Dungan. Dungan and Atkinson
visited with O'Connell briefly at his home before
deciding to leave. After Dungan and Atkinson exited the
apartment, the defendant walked up with a gun and, according
to Atkinson, hit Dungan on his head with the gun and demanded
that he “get in the truck.” Dungan reached into
his vehicle, grabbed a handgun and shot the defendant. The
defendant responded with several gunshots.
The defendant sustained a gunshot wound to his neck and
elbow. Dungan was shot in his upper abdomen, right thigh, and
left thigh. The injury to the abdomen perforated Dungan's
colon and left kidney, causing massive hemorrhage to his
abdomen. The injury was fatal.
The defendant initially denied shooting the victim. In an
initial statement to the police, the defendant claimed that
he and two other individuals followed Dungan from
Dancer's and planned to rob him. The defendant claimed
one of his accomplices shot the victim and the defendant ran
away. The defendant later confessed to shooting Dungan and
admitted that he acted alone. He claimed that he simply
approached Dungan and ordered him to “freeze.”
Dungan then retrieved a gun from his vehicle and shot the
defendant in the neck. The defendant claimed he was running
away when he started shooting back towards Dungan.
See State v. Sadler, supra, 2011 WL 3557836, *1.
addition to the foregoing, the evidence adduced at trial
reflects that Kacey Atkinson, who was Petitioner's
girlfriend at the time of the shooting and who was living
with Petitioner and knew him well, witnessed the shooting and
positively identified Petitioner as the shooter, having
recognized his camouflage clothing, his eyes, his voice, and
his manner. She further testified that Petitioner was
personally aware, having been told by her prior to the night
of the shooting, that the victim often carried substantial
amounts of cash when she and the victim were out together.
She testified that on the night of the shooting, she and the
victim were standing in the parking lot outside Robert
O'Connell's apartment talking when Petitioner
approached the victim holding a firearm and instructed the
victim to get in the adjacent truck. When the victim
initially demurred, Petitioner hit him in the head with the
firearm. The victim then moved to the door of the vehicle but
instead of getting in as instructed, grabbed his own firearm
and began shooting at Petitioner, whereupon Petitioner
returned fire. Kacey Atkinson confirmed that Petitioner was
wearing camouflage clothing that matched the clothing later
found in Petitioner's vehicle. In addition to the
foregoing, the evidence reflects that during interrogation,
Petitioner admitted to having attempted to rob the victim and
to having shot him when the victim produced a weapon.
Petitioner further advised investigating officers of the
location of the weapon used during the incident, which the
officer were able to thereafter recover from Petitioner's
mother's house. Evidence recovered from the crime scene
indicated that Petitioner had fired his weapon approximately
14 times before it became jammed.
upon the foregoing, the jury returned a verdict finding
Petitioner guilty of the charged offense.
Procedural Defenses Raised by the State