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Fairley v. Kent

United States District Court, E.D. Louisiana

September 10, 2018

WALTER D. FAIRLEY
v.
JASON KENT, WARDEN

         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 DISMISSED WITH PREJUDICE as time-barred.

         I. FACTUAL BACKGROUND

         The petitioner, Walter D. Fairley, is a convicted inmate currently incarcerated in the Dixon Correctional Institute in Jackson, Louisiana.[2] On January 13, 2014, Fairley was charged with armed robbery in a bill of information in St. Tammany Parish. The Louisiana First Circuit Court of Appeal summarized the facts proved at trial in pertinent part as follows:

On November 4, 2013, the defendant entered Regions Bank on Gause Boulevard in Slidell. He approached teller Melissa Gerstner and handed her a note. The note instructed the teller to give him cash, to act normal, and not to set off any alarms. The last line of the note indicated the defendant was carrying a gun. The defendant did not show Melissa a gun, and she did not see a gun. She gave the defendant $1, 978 in cash. Contained within the stack of cash was a dye pack. When the defendant left the bank with the money, the dye pack detonated. The defendant dropped the stained stack of money and fled in his GMC pickup truck. The police were immediately informed of the bank robbery; and within minutes, the defendant was stopped on the I-12 interstate on-ramp. The defendant was patted down, and was found to be carrying a handgun in his waistband. Melissa was brought to the scene, and she identified the defendant as the person who had just robbed her. The defendant was taken to the Slidell Police Department, where he was interviewed, and admitted to the robbery. Bank cameras captured several photographic stills of the defendant robbing Melissa. The defendant had on a blue long-sleeve dress shirt and a Saints cap. The police found the blue shirt and the Saints cap in the defendant's truck.
[At trial, ] Melissa testified the defendant handed her a note when he approached her. Melissa stated she read the note, and then dropped it to the floor, per the bank's protocol if a teller is robbed. Detective Shawn Bartley, with the Slidell Police Department, testified he found the note on the bank floor and secured it. The note, which was introduced into evidence, stated:
This is simple . . . cooperate and live. Don't and die. I've studied you and your family . . . No tricks-no alarms-act normal give me the cash-you won't get shot and I will leave. If they catch me before I leave the premises your family is done.
After I'm gone stay calm approach your manager and tell them.
If I pull this gun your [sic] shot!
Detective Jeff Theriot, with the Slidell Police Department, testified that he was the lead detective and that he interviewed the defendant[.] Detective Theriot indicated the defendant admitted to him that he robbed Melissa and that he had a gun in his truck, but he did not bring the gun into the bank with him. The detective testified the defendant stated during his interview that as the teller “stretched things out” and was not being totally compliant, he grabbed his clothing near his waist, “[r]eferencing as if he were to have a firearm.” According to the defendant/this action (of grabbing) was so overt that he was actually worried that other customers in the bank would realize what was going on. Detective Theriot was shown still photographs of the robbery taken from the bank cameras. The detective indicated that the defendant, during the robbery, had both of his shirts-his blue shirt and the T-shirt underneath-untucked.
The defendant was stopped by the police only minutes after the robbery. When Officer Steven Gilley, with the Slidell Police Department, searched the defendant, he found a handgun in the defendant's front waistband. The gun had live ammunition in the cylinder.

State v. Fairley, No. 2014-1412, 2015 WL 996870, at *1-3 (La.App. 1st Cir. Mar. 6, 2015) (footnote omitted).

         On May 22, 2014, at the conclusion of a jury trial, Fairley was found guilty as charged as to Count 1.[3] On July 3, 2014, Fairley was sentenced to 45 years in prison at hard labor without benefit of parole, probation or suspension of sentence.[4]

         On direct appeal, Fairley asserted a single claim that the evidence was insufficient to support the armed robbery conviction; specifically, that the State failed to prove that he was armed with a firearm during the robbery.[5] On March 6, 2015, the Louisiana First Circuit affirmed the conviction and sentences, being “convinced that viewing the evidence in the light most favorable to the State, any rational trier of fact could have found beyond a reasonable doubt, and to the exclusion of every reasonable hypothesis of innocence, that the defendant was guilty of armed robbery while armed with a firearm.”[6]

         Fairley's conviction became final thirty (30) days later, on April 6, 2015, [7] when he did not seek reconsideration of the sentence or pursue review by the Louisiana Supreme Court. Roberts v. Cockrell, 319 F.3d 690, 694-95 (5th Cir. 2003) (under federal habeas law, a conviction is final when the state defendant does not timely proceed to the next available step in the state appeal process); see Cousin v. Lensing, 310 F.3d 843, 845 (5th Cir. 2002) (petitioner's guilty pleas became final at the end of the period for filing a notice of appeal under La. Code Crim. P. art. 914[8]).

         For more than one year after his conviction became final, Fairley took no action whatsoever to challenge his conviction and sentence. Instead, in November 2015, he filed a motion for production of his trial and sentencing transcripts, which was denied.[9]

         On either May 3, 4 or 5, 2016, [10] more than one year after his conviction became final, Fairley signed and submitted to the clerk of the state trial court an application for post-conviction relief. In that pleading, he asserted the following claims for relief: (1) ineffective assistance of trial counsel; (2) insufficiency of evidence; (3) due process violation; and (4) vindictive prosecution.

         On June 24, 2016, the state trial court denied relief, finding all claims Fairley asserted in his application for post-conviction relief meritless.[11] Fairley timely filed an application for writs in the Louisiana First Circuit.[12] The appellate court denied the application by order dated October 31, 2016.[13]

         On November 6, 2016, Fairley timely filed an application for a writ of review of the appellate court's ruling in the Louisiana Supreme Court, in which he argued the same claims outlined above that he had asserted in the Louisiana appellate court.[14] By order issued April 6, 2018, the Louisiana Supreme Court denied this application, finding that Fairley failed to establish ineffective assistance of counsel; failed to satisfy his post-conviction burden of proof as to the vindictive prosecution and due process claims; and that the sufficiency of the evidence claim was repetitive.[15]

         III. FEDERAL ...


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