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Bell v. State

United States District Court, M.D. Louisiana

September 11, 2018

JACOB M. BELL, SR. (# 442374)


         Please take notice that the attached Magistrate Judge's Report has been filed with the Clerk of the United States District Court.

         In accordance with 28 U.S.C. § 636(b)(1), you have fourteen (14) days after being served with the attached Report to file written objections to the proposed findings of fact, conclusions of law and recommendations 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 of the Magistrate Judge which have been accepted by the District Court.



         This matter comes before the Court on the Motions for Summary Judgment of the State of Louisiana (R. Docs. 29 and 38) and the Motion for Mandamus of the Petitioner.[1] Petitioner has filed a Response to the State's initial Motion for Summary Judgment (R. Doc. 30) and has filed the referenced Motion for Mandamus in response to the State's supplemental Motion for Summary Judgment.

         Pro se Petitioner, Jacob M. Bell, Sr., commenced this proceeding as an application for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, complaining that his constitutional rights have been violated in connection with the revocation of his parole in 2013. Upon the transfer of Petitioner's application from the Western District of Louisiana to this Court, Petitioner submitted an amended application that included additional claims. Although Petitioner's pleadings are not a model of clarity, the Court has concluded that Petitioner is arguably asserting multiple habeas corpus challenges, some to an underlying conviction and sentence and some to the subsequent revocation of his parole. Specifically, he apparently (1) challenges the validity of his 2007 criminal conviction for driving while intoxicated, fourth offense, and resulting sentence by complaining, inter alia, of the disallowance of an appeal after a remand for resentencing in 2009, see R. Doc. 8 at p.7 and R. Doc. 10 at p. 5, of ineffective assistance of counsel generally, including by not pursuing an appeal from his re-sentence in 2010, see R. Doc. 10 at pp. 10-11, and of an alleged excessive sentence, see R. Doc. 8 at p. 11, (2) challenges the execution of the sentence imposed in connection with that conviction because he interprets it as having called for placement on probation whereas he was instead subjected to confinement in a penal institution, see R. Doc. 8 at pp. 5 and 8, and R. Doc. 10 at p. 9, and (3) challenges the revocation of his supervised release on parole in December 2013 after his arrest and conviction in connection with a subsequent DWI offense in another parish. See R. Doc. 1, generally, and R. Doc. 8 at p. 10.[2]

         This case has followed a somewhat circuitous path and, as noted above, Petitioners pleadings are not a model of clarity. In addition, as a result of confusion created by the procedural posture of the case, the Court has experienced substantial difficulty in obtaining adequate responses from the State relative to Petitioner's claims. Notwithstanding, the matter now appears to be ready for resolution, and the Court will address Petitioner's claims as itemized above.

         The State of Louisiana moves for summary judgment relying upon the pleadings, Statements of Undisputed Facts, and copies of Plaintiff's trial court record, administrative review proceedings and parole revocation proceedings. Pursuant to well-established legal principles, summary judgment is appropriate where there is no genuine disputed issue as to any material fact, and the moving party is entitled to judgment as a matter of law. Rule 56, Federal Rules of Civil Procedure. Celotex Corp. v. Catrett, 477 U.S. 317 (1986); Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986). A party moving for summary judgment must inform the Court of the basis for the motion and identify those portions of the pleadings, depositions, answers to interrogatories and admissions on file, together with affidavits, if any, that show that there is no such genuine issue of material fact. Celotex Corp. v. Catrett, supra, 477 U.S. at 323. If the moving party carries its burden of proof under Rule 56, the opposing party must direct the Court's attention to specific evidence in the record which demonstrates that the non-moving party can satisfy a reasonable jury that it is entitled to a verdict in its favor. Anderson v. Liberty Lobby, Inc., supra, 477 U.S. at 248. This burden is not satisfied by some metaphysical doubt as to alleged material facts, by unsworn and unsubstantiated assertions, by conclusory allegations, or by a mere scintilla of evidence. Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994). Rather, Rule 56 mandates that summary judgment be entered against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case and on which that party will bear the burden of proof at trial. Celotex Corp. v. Catrett, supra, 477 U.S. at 323. Summary judgment is appropriate in any case where the evidence is so weak or tenuous on essential facts that the evidence could not support a judgment in favor of the non-moving party. Little v. Liquid Air Corp., supra, 37 F.3d at 1075. In resolving a motion for summary judgment, the Court must review the facts and inferences in the light most favorable to the non-moving party, and the Court may not evaluate the credibility of witnesses, weigh the evidence, or resolve factual disputes. International Shortstop, Inc. v. Rally's, Inc., 939 F.2d 1257, 1263 (5th Cir. 1991).

         a. Petitioner's challenge to the validity of his 2007 conviction and resulting sentence.

         The Court first concludes that Plaintiff's challenge to the validity of his 2007 conviction and resulting sentence is not properly before this Court. In this regard, it appears that Petitioner has previously pursued habeas corpus relief in this District in connection with the referenced 2007 conviction and sentence. See Jacob M. Bell, Sr. v. Deputy Warden Anthony Baton, Civil Action No. 11-0304-BAJ-DLD (M.D. La.). In that case, Petitioner asserted that he had been subjected to an unconstitutional search and seizure after arrest, that he was provided with ineffective assistance of counsel prior to trial, that the prosecution withheld exculpatory information, that the trial court failed to comply with orders issued by the Louisiana appellate courts relative to the issuance of rulings on pending motions, and that he was subjected to double jeopardy because he was sentenced to both incarceration and to a probationary period. Pursuant to a Ruling and Order of Dismissal issued on October 31, 2012, this Court approved a Report and Recommendation issued by the assigned Magistrate Judge in that case and dismissed Petitioner's application, in part as being procedurally defaulted and in part as being without merit. See id. at R. Docs. 15, 19 and 20; Bell v. Baton, No. 11-0304-BAJ-DLD, 2012 WL 5364239 (M.D. La. Sept. 24, 2012), approved, 2012 WL 5364237 (M.D. La. Oct. 31, 2012). Pursuant to Mandate issued thereafter by the United States Court of Appeals for the Fifth Circuit, Petitioner's appeal was rejected in that Court, as was a subsequent application for reconsideration before that Court. See id. at R. Docs 28 and 29. Finally, it appears from the record in that case that Petitioner's application for a writ of certiorari before the United States Supreme Court was similarly denied pursuant to Order of that Court issued on February 24, 2014. See id. at R. Doc. 30; Bell v. Batson, 571 U.S. 1213 (2014).

         Based on the foregoing, it appears that the present application is in the nature of a successive petition for habeas corpus relief within the meaning of 28 U.S.C. § 2244(b). The Fifth Circuit has long held that a habeas corpus application filed after the filing of one or more previous applications is successive when it A(1) raises a claim challenging the petitioner's conviction or sentence that was or could have been raised in an earlier petition; or (2) otherwise constitutes an abuse of the writ.@ In re Cain, 137 F.3d 234 (5th Cir. 1998). The Fifth Circuit has also found that “an application filed after a previous application was fully adjudicated on the merits is a second or successive application within the meaning of 28 U.S.C. § 2244(b), even if it contains claims never before raised.” Graham v. Johnson, 168 F.3d 762, 774 n. 7 (5th Cir. 1999), citing Felker v. Turpin, 518 U.S. 651, 655-58, 662-63 (1996). The prohibition against second and successive habeas petitions has also been described as a “modified res judicata rule” which bars claims which were ripe for disposition at the time the original petition was filed, but which were inexcusably omitted from the earlier petition. United States v. Orozco-Ramirez, 211 F.3d 862, 868-71 (5th Cir. 2000). Under this approach, the key issue is whether or not the first petition was adjudicated on the merits. See McCullough v. Cain, 2015 WL 5024392 (W.D. La. Aug 24, 2015).

         The claims asserted by Petitioner herein, challenging his 2007 conviction and resulting sentence on various grounds, including the disallowance of an appeal after re-sentencing in 2009, ineffective assistance of counsel generally, and an alleged excessive sentence, could have been asserted in his initial federal habeas corpus application filed in 2011. Moreover, Petitioner's initial habeas corpus application was dismissed by this Court as being procedurally defaulted, specifically because Petitioner had failed to exhaust his claims through the state courts and because any subsequent attempt to do so would have been subject to dismissal by reason of state procedural rules. It has long been held in this context that such a dismissal because of state procedural default is considered to be an adjudication on the merits. See Demouchet v. Louisiana, No. 1:17-CV-600-P, 2017 WL 4334334, *2 (W.D. La. Aug. 10, 2017), citing Bates v. Whitley, 19 F.3d 1066, 1067 (5th Cir. 1994) (“A federal habeas court's rejection of a petitioner's constitutional claim because of state procedural default and a failure to show cause and prejudice must be regarded as a determination on the merits in examining whether a subsequent petition is successive”); Henderson v. Lampert, 396 F.3d 1049 (9th Cir. 2005) (dismissal of a federal habeas petition on the ground of state procedural default is a determination “on the merits” for the purposes of the successive petition doctrine); Harvey v. Horan, 278 F.3d 370, 380 (4th Cir. 2002) (the district court's dismissal of petitioner's original habeas petition for procedural default was a dismissal on the merits); In re: Cook, 215 F.3d 606, 608 (6th Cir. 2000) (initial § 2254 application dismissed for unexcused procedural default was “on the merits, ” and subsequent application was a “second or successive habeas corpus application” under § 2254(b)). See also Chancellor v. Mississippi, 129 Fed.Appx. 878 (5th Cir. 2005) (concluding that a federal habeas application that is subject to dismissal as procedurally defaulted should be dismissed with prejudice); Clark v. Cain, No. 09-804, 2009 WL 3242306, *2 (W.D. La. Oct. 8, 2009) (finding, in a factual context similar to that presented herein: “Virtually every court to address the issue has concluded that the dismissal of a habeas corpus petition as procedurally defaulted must be considered an adjudication on the merits”).

         Based on the foregoing, the Court finds that Petitioner's current challenge to his 2007 conviction and resulting sentence constitutes a second or successive habeas corpus application. In accordance with the express provisions of 28 U.S.C. § 2244(b)(3)(A), A[b]efore a second or successive application permitted by this section is filed in the district court, the applicant shall move in the appropriate court of appeals for an order authorizing the district court to consider the application.@ Id. Petitioner has not presented this Court with an Order from the Fifth Circuit Court of Appeals allowing him to proceed with this successive application for federal habeas corpus relief. Thus, this Court cannot consider the instant habeas corpus petition because, without an order from the Fifth Circuit, this Court lacks subject matter jurisdiction over the petitioner's successive application.[3] Accordingly, it is appropriate that these claims be dismissed pending receipt of authorization from the Fifth Circuit that allows Petitioner to proceed with these claims.[4]

         b. Petitioner's challenge to the execution ...

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