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Marie Martin v. Boutte

United States District Court, E.D. Louisiana

May 18, 2018

SHERYL LEE MARIE MARTIN
v.
FREDRICK BOUTTE, WARDEN

         SECTION “F” (2)

          REPORT AND RECOMMENDATION

          JOSEPH C. WILKINSON, JR. UNITED STATES MAGISTRATE JUDGE

         This matter was referred to a United States Magistrate Judge to conduct hearings, 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. Upon review of the entire record, I have determined that a federal evidentiary hearing is unnecessary. See 28 U.S.C. § 2254(e)(2).[1] For the following reasons, I recommend that the instant petition for habeas corpus relief be DISMISSED WITHOUT PREJUDICE for failure to exhaust state court remedies.

         I. FACTUAL AND PROCEDURAL BACKGROUND

         The petitioner, Sheryl Lee Marie Martin, is incarcerated in the Louisiana Correctional Institute for Women in St. Gabriel, Louisiana.[2] On October 12, 2011, Martin and two co-defendants, Brittany L. Martin and Terry J. LeBoeuf, were indicted in Terrebonne Parish for the aggravated rape of a juvenile under the age of thirteen.[3] T h e Louisiana First Circuit summarized the facts established at trial:[4]

In August of 2011, the victim, twelve-year-old K.B., was at the defendant's home in Chauvin, Louisiana, where her friend, R.A. lived. R.A. is the defendant's niece. The defendant's adult daughter, B.M., also lived in the home. The victim and R.A. were lying in R.A.'s bedroom when B.M. came in and said a man (later identified as Terry LeBoeuf) wanted a “blow job.” The defendant walked in and said, “Don't be a pussy[, ] come on[, ] just do it.” The victim stated that the defendant told her she would buy her earrings, hair dye, and anything else she wanted in exchange for her performing the act. After the victim agreed, the defendant gave her clothes to wear, told her to take a bath, and to put on makeup.
LeBoeuf picked up the victim and the defendant from the defendant's home, and the defendant told LeBoeuf that the victim was eighteen years old. The three drove to LeBoeuf's house and went into his bedroom. LeBoeuf removed his clothing, and the defendant told the victim to remove her shirt and bra. The defendant also removed her own shirt and bra. While the victim performed oral sex on LeBoeuf, the defendant was lying in the bed with them, drinking a Dr. Pepper. According to the victim, the defendant and LeBoeuf were whispering to each other.
The defendant then told the victim to remove her pants and underwear, and LeBoeuf performed oral sex on the victim. At this point, the defendant had left the room, but was “peeking” in. Afterward, LeBoeuf gave the victim $100.00 and gave the defendant $10.00, but as they were walking out the door, the defendant took the victim's money. LeBoeuf then drove the defendant and the victim to Wal-Mart, where the defendant bought hair dye for the victim. The three ran a few other errands before returning to the defendant's house. The victim stated that the defendant and her daughter wanted the money for pills.
LeBoeuf testified that he received a telephone call from the defendant wherein she stated that she “found someone for [him].” The defendant told LeBoeuf to come to her house. He went to the defendant's house and picked up the defendant and the victim. He testified that he made the deal with the defendant and that they came to an agreed upon price of $100.00. LeBoeuf stated that at the time of this event, he was sixty-five years old. He claimed that the defendant told him the victim was eighteen years old. After the victim performed oral sex on him, he gave her $100.00.
According to the defendant's testimony, her daughter approached her about calling someone to get some money, so the defendant called LeBoeuf. The defendant went with the victim to LeBoeuf's house and discussed money with him. The defendant claimed that the night before, she was at a party drinking and doing cocaine and Roxycontin. She testified that the drugs usually stay in her system for three days, and that it took her approximately one month after the incident to get a “clear head.” However, she also testified that when she was riding to LeBoeuf's house, she knew what the “situation” was. Of the $110.00 the defendant received from the deal, she purchased two Roxycontins, which were $20.00 each, paid a $10.00 debt, bought the victim $40.00 worth of items from Wal-Mart, and gave another man $20.00.
The defendant, the defendant's daughter, and LeBoeuf, were all placed under arrest in connection with this incident.

State v. Martin, No. 2014-KA-0295, 2014 WL 4668768, at *1-*2 (La.App. 1st Cir. Sep. 19, 2014); State Record Volume 1 of 3, Louisiana First Circuit Court of Appeal Opinion, 2014-KA-0295, pages 1-4, September 19, 2014.

         Martin was separately tried before a jury on April 16 through 19, 2013, and found guilty as charged of aggravated rape.[5] At a July 10, 2013, hearing, the state trial court denied Martin's motions for new rial and for judgment of acquittal notwithstanding the verdict.[6] After waiver of legal delays, the court sentenced Martin to life in prison without benefit of parole, probation or suspension of sentence.[7] The court also denied Martin's request to reconsider the sentence.[8]

         On direct appeal to the Louisiana First Circuit, Martin's appointed counsel asserted three errors:[9] (1) The state trial court erred in refusing to instruct the jury on voluntary intoxication. (2) The state trial court erred in failing to re-instruct the jury on the definitions of the responsive verdicts when requested. (3) The state trial court imposed an excessive sentence. The Louisiana First Circuit affirmed Martin's conviction and sentence on September 19, 2014, finding no merit in the first and third claims and that the second claim was not preserved for appeal by contemporaneous objection and otherwise lacked merit.[10]

         The Louisiana Supreme Court denied Martin's related writ application on May 22, 2015, without stated reasons.[11] Her conviction became final ninety (90) days later, on August 20, 2015, when she did not file a writ application with the United States Supreme Court. Ott v. Johnson, 192 F.3d 510, 513 (5th Cir. 1999) (period for filling for certiorari with the United States Supreme Court is considered in the finality determination under 28 U.S.C. § 2244(d)(1)(A)), cert. denied, 529 U.S. 1099 (2000); U.S. Sup. Ct. Rule 13(1).

         Almost nine months later, on May 18, 2016, Martin signed and submitted an application for post-conviction relief to the state trial court asserting six grounds for relief:[12] (1) She received ineffective assistance of trial counsel when counsel failed to communicate with her regularly, engage in adequate discovery, prepare a defense and submit jury charges on voluntary intoxication and mercy for the defendant. (2) Her due process rights were violated when the state trial court failed to give a written copy of the definitions of the responsive verdicts to the jury. (3) The victim's testimony should have been impeached as inconsistent with statements taken by law enforcement. (4) Her due process rights were violated when the State failed to question why the school board did not report that the victim was homeless when Martin put them on notice. (5) Martin's inculpatory statements were used to allow the co-defendant LeBoeuf to avoid trial, thereby profiting from the ineffective assistance of her counsel, who failed adequately to defend the case. (6) She was denied the right to show actual vindictiveness by and favor given to a co-defendant.

         On June 8, 2016, the state trial court issued an order dismissing claims four, five and six as not cognizable on post-conviction review, citing La. Code Crim. P. art. 930.3.[13] The court also dismissed the first claim in part, to the extent it addressed the voluntary intoxication defense, and the second claim, because both claims were resolved on direct appeal, citing La. Code Crim. P. art. 930.4(A). The court ordered additional briefing as to the rest of claim one and claim three, i.e., ineffective assistance of counsel and impeachment of the victim.

         On September 9, 2016, the state trial court appointed counsel for Martin and scheduled an evidentiary hearing on the remaining claims.[14] At the July 12, 2017, hearing, the court denied relief under Strickland v. Washington, 466 U.S. 668 (1984).[15]Martin did not seek review of this ...


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