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Lavergne v. Cain

United States District Court, W.D. Louisiana, Lafayette Division

April 10, 2018

BRANDON SCOTT LAVERGNE D.O.C. # 424229
v.
N. BURL CAIN

         SECTION P

          WALTER, JUDGE

          REPORT AND RECOMMENDATION

          KATHLEEN KAY, UNITED STATES MAGISTRATE JUDGE

         Before the court is a petition for writ of habeas corpus and final amended memorandum in support thereof [docs. 1, 46] filed by Brandon Scott Lavergne (“petitioner”), who is represented by counsel in this matter. The petitioner is an inmate in the custody of the Louisiana Department of Public Safety and Corrections and is currently incarcerated at the Louisiana State Penitentiary at Angola, Louisiana. N. Burl Cain (“respondent”), former warden at Angola, opposes the petition. Doc. 67. The petitioner has adopted his reply to a previously-filed answer as his final reply. Docs. 82, 83. Accordingly, the matter is now ripe for review.

         This matter is referred to the undersigned for review, report, and recommendation in accordance with 28 U.S.C. § 636 and the standing orders of the court. For the following reasons IT IS RECOMMEDED that the petition be DENIED and DISMISSED WITH PREJUDICE.

         I.

         Background

         A. Conviction

         The petitioner was charged by bill of indictment on July 18, 2012, with two counts of first degree murder in the Fifteenth Judicial District Court, Lafayette Parish, Louisiana. Doc. 80, att. 1, p. 82. The first count related to the murder of Lisa Pate on or about July 3, 1999, and the second to the murder of Michaela Shunick on or about May 19, 2012. Id. On August 17, 2012, he appeared with counsel at a change of plea hearing. Id. at 16-17; doc. 80, pp. 82-84. At this hearing he presented no challenge to the accuracy of facts offered by the state concerning both murders. Doc. 80, pp. 70-75 (Pate) and 75-83 (Shunick).

         The terms of the plea arrangement, in which the petitioner had agreed to assist the state with certain tasks, the state had agreed not to seek the death penalty, and the petitioner consented to sentences of life imprisonment without parole and waived his right to a sentencing hearing, were entered into the record. Id. at 83-88. The court then accepted the petitioner's guilty pleas as to both counts and imposed two concurrent sentences of life imprisonment without benefit of probation, parole, or suspension of sentence. Id. at 88.

         B. State Collateral Review

         The petitioner did not file a direct appeal and instead began seeking collateral review through a pro se application for post-conviction relief, filed in the state district court on December 18, 2012, with a supplemental memorandum filed on January 2, 2013. See doc. 80, att. 1, pp. 3-5 (original application); doc. 80, pp. 23-33 (supplemental memorandum). This application was rejected by the court as improperly filed. Doc. 80, pp. 34-35. The petitioner then filed an application for post-conviction relief, received in the trial court on or about February 7, 2013, and denied by the state district court with written reasons. See doc. 25, att. 2, pp. 7-23; doc. 79, pp. 57-66. In its ruling the state district court found that he had raised claims relating to the court's jurisdiction, the voluntariness of his plea, the Freedom of Information Act, and ineffective assistance of counsel. Doc. 79, pp. 57-58. However, petitioner maintains that he also raised a claim of excessive sentence within his claim challenging the voluntariness of his plea. See doc. 25, att. 2, pp. 18-20.

         The petitioner sought review in the Louisiana Third Circuit Court of Appeal twice, under case number 13-KH-488 and 13-KH-695. The Third Circuit denied writs on 13-KH-488 on May 17, 2013, “on the showing made” due to the petitioner's failure to include necessary documentation, and on 13-KH-695 on June 18, 2013, finding no error to the trial court's ruling. Doc. 1, att. 2, p. 34; doc. 25, att. 3, p. 5. The petitioner then sought review under both case numbers in the Louisiana Supreme Court. That court issued the following ruling as to both case numbers on September 12, 2014: “Denied. Repetitive. Cf. La.C.Cr.P. art. 930.4(D).”[1] Doc. 25, att. 4, p. 12; State ex rel. Lavergne v. State, 147 So.3d 702 (La. 2014). He sought reconsideration, which the court denied on October 31, 2014. State ex rel. Lavergne v. State, 152 So.3d 143 (La. 2014).

         On February 11, 2015, while the instant petition was already pending, the petitioner filed a “supplemental” application for post-conviction relief in the state district court. Doc. 69, pp. 88- 100; doc. 70, pp. 1-27. There he made several allegations of ineffective assistance of counsel and prosecutorial misconduct, including that the plea deal had subjected him to a “cruel and unusual sentence.” Doc. 69, p. 100. The state district court stated that it would not consider the other claims, as those were previously raised and considered, but that it would consider the illegal sentence claim. Id. at 82. It then held that the petitioner was not entitled to relief on that claim because a life sentence did not exceed the maximum allowed by law for first degree murder. Id. The petitioner sought review in the Third Circuit, which denied same and made the following remarks with respect to his sentence claims:

Insofar as Relator asserts his sentences are illegal, Relator's petition to the trial court did not contain any argument cognizable as an actual illegal sentence claim. The statutory delays for Relator's opportunities to seek review of his sentences through appeal, motion to reconsider sentences, and motion to amend sentences have lapsed. Moreover, Relator received bargained-for sentences placed into the record at the time of his plea; therefore, insofar as Relator may actually be challenging his sentences instead of the underlying convictions, Relator is precluded from so doing.

Id. at 49-50. He then sought review in the Louisiana Supreme Court, which denied same on October 30, 2015, and noted that he had not shown that the district court erred when it determined that his claims were repetitive. State ex rel. Lavergne v. Lavergne, 178 So.3d 559 (La. 2015), reconsideration denied, 184 So.3d 699 (La. 2016).

         C. Federal Habeas Petition

         The instant petition was filed on September 18, 2014, while the petitioner was proceeding pro se. See doc. 1, p. 6. He is now represented by counsel, and makes the following claims in support of his request for habeas relief:

1. The sentences are cruel and unusual.
2. The guilty pleas are void because the Parish of Lafayette exceeded its authority in indicting him with the murder of Lisa Pate when none of the elements of the offense occurred in that parish.
3. Trial counsel was ineffective for permitting the petitioner to enter a plea to a grossly excessive sentence, when trial counsel should have known that the parish and trial court lacked jurisdiction and authority to ...

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