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Payton v. McCine

United States District Court, E.D. Louisiana

August 10, 2018

NATHANIEL PAYTON
v.
S.W. SANDY MCCINE

         SECTION “A” (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 DENIED and DISMISSED WITH PREJUDICE.

         I. FEDERAL PROCEDURAL BACKGROUND

         On February 10, 2017, the clerk of this court filed Nathaniel Payton's petition for federal habeas corpus relief in which he asserted the following grounds for relief:[2] (1) His state post-conviction application stated claims upon which relief could be granted entitling him to discovery and an evidentiary hearing pursuant to La. Code Crim. P. arts. 928 and 930, Louisiana Const. Art. I §2, State ex rel. Tassin v. Whitley, 602 So.2d 721 (La. 1992) and Lemmon v. Connick, 590 So.2d 574 (La. 1992).[3] (2) The state trial court violated his due process rights under the state and federal constitutions when it failed to rule on the application for post-conviction relief filed by his attorney and only ruled on the pro se supplemental application contrary to state law holdings in State ex rel. Tassin and Lemmon. (3) His right to access to the courts under the state and federal constitutions was abrogated by the state trial court's failure to rule on the attorney-filed application for post-conviction relief. (4) His equal protection rights under the Fourteenth Amendment were abrogated by the state trial court's unjust delay and failure to rule on the application for post-conviction relief filed by his attorney in violation of State ex rel. Tassin.

         Payton's claims, construed broadly, include that the state trial court erred by failing to allow him to conduct discovery and take depositions to present at a post-conviction evidentiary hearing to prove that he was denied due process and a fair trial by the State and received ineffective assistance of counsel when his trial counsel failed to challenge the selection of two jurors, Calvin J. Aguillard and Calvin J. Gavion Sr., whom he claims were related to the victim and/or his family and failed to move for the recusal of the state trial judge, whom Payton claims had a close friendship with the victim's twin sister.[4] Payton also argued that with discovery and a state post-conviction hearing, he could have established that the State presented and relied upon perjured testimony, suppressed evidence and wrongfully admitted hearsay testimony by Officer Haynes, which previously had been ruled inadmissible.[5] He, therefore, prayed that this federal habeas court order the state trial court to allow him to conduct discovery and hold an evidentiary hearing.

         In its response in opposition to Payton's petition, the State asserted that Payton's claims challenging the state court's procedural actions on post-conviction review are not cognizable under federal habeas law.[6] In the alternative, the State contended that Payton failed to exhaust state court review of his claims of perjured and hearsay testimony and the related ineffective assistance of counsel claims which he sought to develop in the state court. The State further asserted that the ineffective assistance of counsel claims (i.e., failure to challenge the biased jurors and file a motion to recuse the trial judge) are without merit.

         On December 12, 2017, I issued a report and recommendation in which I recommended that Payton's federal habeas corpus petition be dismissed without prejudice for failure to exhaust state court review of all but his claims challenging the state post-conviction proceedings and that he received ineffective assistance of counsel when counsel failed to challenge the biased jurors and seek recusal of the state trial judge.[7] Payton moved for leave to amend his federal petition to exclude the unexhausted claims and proceed only with the exhausted claims identified in my prior report and recommendation.[8] The district judge granted the motion on April 9, 2018, and referred the matter to me for consideration of the remaining exhausted issues.[9]

         Based on my prior report, Payton's federal petition, the state court record and his pleadings presented to the Louisiana Supreme Court, the only claims exhausted in the state courts are Payton's claims that he was denied his due process and other constitutional rights during the post-conviction process in the state courts and that he was denied effective assistance of counsel when his trial counsel failed to challenge two biased jurors and move to recuse the state trial judge.[10]

         II. STATE COURT FACTUAL AND PROCEDURAL BACKGROUND

         Although my prior report contains a detailed recounting of the procedural history of the underlying state criminal proceedings, the relevant facts and history are repeated here for ease of reference.

         Payton is incarcerated in the Raymond Laborde Correctional Center in Cottonport, Louisiana.[11] On May 28, 2009, Payton was indicted by an Orleans Parish grand jury and charged with second degree murder.[12] The Louisiana Fourth Circuit Court of Appeal summarized the facts determined at trial in relevant part as follows:

The defendant was convicted of manslaughter in the killing of Cyril Roussel, who allegedly was shot by the defendant on August 2, 2008, and as a result of the wounds inflicted, died approximately six months later, on February 9, 2009.
[. . .]
New Orleans Police Department Officer Jason M. Lewis testified that on August 2, 2008, he was assigned to the canine unit. He was driving in the French Quarter, on Iberville Street, near Club Decatur, when he heard what sounded like gunshots. At that time he also began to hear reports on the police radio of the shooting outside Club Decatur. He was proceeding up Iberville Street to N. Peters Street when he was flagged down by a security guard from the club, who pointed the defendant out to him. The defendant was walking very fast. Officer Lewis turned on his lights and siren to get through heavy vehicular traffic at N. Peters Street, at which point the defendant began to run.
Officer Lewis crossed N. Peters on Iberville Street, paralleling the defendant as he ran across two connected parking lots. When the officer observed the defendant reach into his waistband and pull out a firearm, he stopped his vehicle, got his canine out, and ran into the parking lot after defendant. The officer ran through the gate across from the hotel entrance, and his canine apprehended Nicholas (sic) Payton. Officer Lewis testified that Payton dropped or threw the gun he was carrying, a Ruger semi-automatic handgun, and it landed in the middle of N. Front Street. Officer Lewis testified that from the time he saw the defendant walking fast until the time his canine apprehended defendant, he lost sight of him for only a brief second when he ran behind a building in the middle of the parking lots and emerged on the other side, still running parallel to the officer.
[. . .]
Leo Crump testified that he knew the victim, Cyril Roussel, from meeting him and his wife at parties in connection with the local music industry. On the night of August 2, 2008, Crump attended two concerts with friends at the House of Blues on Decatur Street. After the first concert, he went to Club Decatur to get a slice of pizza and ran into Cyril Roussel. Roussel had attended the second show at the House of Blues, though not with Crump. After the second show Crump saw Roussel standing with other people across Decatur Street talking. Crump went into Club Decatur.
Cyril Roussel subsequently entered, saying to someone Crump did not see: “I'm going to be right f ..... g here, you know. I ain't going nowhere.” Crump described the words from the victim as words of arguing. Crump said he asked Roussel at that point, “Hey man, what's wrong?” Roussel responded that nothing was wrong, and Crump said “[C]ool out. We having a good time tonight.”
Crump and Roussel continued talking, with Crump's back to the outer wall of Club Decatur, and Roussel facing Decatur Street. Someone appeared crouched down behind Roussel as they talked, and Crump heard a click. As soon as he heard a second click gunshots rang out. When Roussel was shot he ran about ten yards and fell over into the street. Crump called 911 and went right over to Roussel. Crump said he never saw a gun, nor did he see Cyril Roussel with a weapon. On cross-examination he was asked if he knew who the individual was “that was involved in the argument, ” [with the victim]. He did not know. He also said he did not know who shot his friend. Crump replied in the negative when asked on redirect examination whether he had seen the shooter's face. Crump said the shooting and scattering/running of people took a matter of seconds.
Kiefer Brown testified that he was working as an armed security person at Club Decatur at the time of the shooting. He was inside when the shooting began. He looked outside and saw the victim, by that time on the ground, by some bushes, being shot more times by Nicholas (sic) Payton, whom he identified in court. The defendant's gun jammed or ran out of ammunition, and he hurried away, putting the gun in his waistband. Brown followed him up Clinton Street to Iberville Street, where he encountered two security personnel from The House of Blues. He asked one of them to call the police. He continued to follow the defendant as he walked toward N. Peters Street. He said Payton turned and saw him, and took off running across N. Peters Street. Brown saw a police SUV and directed him to where he thought the defendant was running. Brown continued to chase the defendant, and observed him remove the gun from his waistband. The defendant then came back toward Brown, because the police canine was coming toward him. Brown said he grabbed the defendant, and the gun flew up in the air and hit a nearby fence. They [the police] handcuffed defendant, and Brown pointed out the gun to police. He said that as soon as he turned the gun over to the police he ran back to Club Decatur.
[. . .]

State v. Payton, 68 So.3d 594, 595-99 (La.App. 4th Cir. 2011); State Record Volume 7 of 8, Louisiana Fourth Circuit Opinion, 2010-KA-1166, pages 1-9, May 18, 2011.

         Payton was tried before a jury on March 8 through 11, 2010, and found guilty of the responsive verdict of manslaughter.[13] On April 9, 2010, the state trial court denied Payton's motion for a new trial based on a non-unanimous jury verdict.[14] After waiver of legal delays, the state trial court sentenced Payton to 40 years in prison at hard labor.[15]

         On direct appeal to the Louisiana Fourth Circuit, appointed counsel asserted three errors:[16] (1) The evidence was insufficient to support the verdict of manslaughter. (2) The evidence was insufficient to support a finding that Payton was the perpetrator of the offense. (3) The jury instruction allowing a non-unanimous jury verdict was unconstitutional. The Louisiana Fourth Circuit affirmed the conviction and sentence on May 18, 2011, finding the claims meritless.[17]

         On February 3, 2012, the Louisiana Supreme Court denied the writ application filed by Payton's counsel without stated reasons.[18] His conviction became final ninety (90) days later on May 3, 2012, when he 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).

         On February 1, 2013, Payton's counsel filed an application for post-conviction relief which asserted that Payton was denied due process through the ineffective assistance of trial and appellate counsel.[19] Specifically, the pleading asserted that Payton's trial counsel was ineffective when he elicited hearsay testimony, did not object to the out-of-court statements of the victim, called the victim's doctor to testify without having procured a defense medical expert and did not object to the trial court's adverse rulings during voir dire. It further asserted that his appellate counsel was ineffective when she failed to challenge the adverse rulings by the state trial court during voir dire.

         On October 5, 2015, a second, similar pleading was filed by the same attorney, which included a third claim of ineffective assistance of trial counsel during sentencing allegedly resulting in imposition of an excessive sentence.[20] The record contains no ruling on either of these counsel-filed post-conviction applications.

         In the meantime, on January 15, 2015, the state trial court issued a judgment denying an application for post-conviction relief purportedly filed pro se by Payton on January 31, 2013.[21] Although no such pleading appears in the record, the state trial court's judgment indicates that Payton asserted three claims: (1) He was denied his confrontation rights when he was not allowed an opportunity to confront Officer Greyberry with impeachment evidence. (2) The State presented the perjured testimony of Kiefer Brown at trial. (3) He received ineffective assistance of counsel when trial counsel failed to object to two biased jurors or file a motion to recuse the trial judge because of her relationship with the victim's sister. The court denied the post-conviction application, finding the claims meritless.[22]

         Payton sought review of this ruling in the Louisiana Fourth Circuit, arguing that the state trial court erred in denying relief on his post-conviction claims without allowing discovery or holding an evidentiary hearing.[23] On June 30, 2015, the Louisiana Fourth Circuit denied relief because the record did not include the pro se “supplemental” application for post-conviction relief which was addressed in the trial court's order.[24] The court advised Payton that he could resubmit his writ application if the underlying pleading could be located or recreated.

         On July 15, 2015, Payton signed and submitted a writ application to the Louisiana Supreme Court asserting that the state trial court violated his right of access to the courts, erred in failing to rule on the post-conviction application filed by his counsel and erred by denying him relief on his supplemental post-conviction application without holding an evidentiary hearing or allowing discovery which prevented him from proving his claims.[25] He also alleged that received ineffective assistance of counsel when his trial counsel failed to challenge the two biased jurors and move to recuse the state trial judge. On September 16, 2016, the Louisiana Supreme Court denied the writ application, noting that Payton failed to establish that he received ineffective assistance under Strickland v. Washington, 466 U.S. 668 (1984).[26] The court did not consider Payton's request for reconsideration, citing La. S.Ct. Rule IX §6, which does not allow reconsideration of a denied writ application.[27]

         While that matter was pending, on August 15, 2016, Payton signed and submitted to the state trial court a “Supplemental Memorandum in Support of Application for Post-Conviction Relief” in which he asserted the following arguments:[28] (1) Newly discovered evidence reveals that he was denied a fair trial when the State used perjured or false testimony, tampered with evidence and failed to correct these matters. (2) The State willfully suppressed exculpatory Brady evidence. (3) He was denied effective assistance when trial counsel failed to retain a forensic expert and investigate the charge, the medical evidence and the crime scene. The record includes no ruling on this pleading.

         III. FEDERAL HABEAS PETITION

         As outlined previously, the clerk of this court filed Payton's petition for federal habeas corpus relief on February 10, 2017.[29] Payton is currently pursuing his claims that he was denied effective assistance of counsel when his trial counsel failed to challenge two biased jurors and move to recuse the state trial judge and that he was denied due process as a result of the state trial court's failure to allow discovery, conduct an evidentiary hearing and rule on several pending post-conviction pleadings.

         In its response in initial opposition to Payton's federal petition, the State asserted that the ineffective assistance of counsel claims are meritless and the claims challenging the state post-conviction proceedings are not cognizable on federal habeas review.[30]Neither Payton nor the State have supplemented their arguments or the record since the matter was referred for further consideration.

         IV. GENERAL ...


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