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Kelly v. State

United States District Court, E.D. Louisiana

September 21, 2018

SAMUEL KELLY
v.
STATE OF LOUISIANA

         SECTION “R” (4)

          REPORT AND RECOMMENDATION

          KAREN WELLS ROBY CHIEF 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 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, the Court has determined that this matter can be disposed of without an evidentiary hearing. See 28 U.S.C. § 2254(e)(2) (2006).[1]

         I. Federal Procedural Background

         The petitioner, Samuel Kelly, is a convicted inmate housed in the Louisiana State Penitentiary in Angola, Louisiana. He filed this petition for habeas corpus under 28 U.S.C. § 2254 based on an alleged Brady violation.[2] In his petition, Kelly alleged that the State withheld critical evidence that would have disclosed that one of the prosecution witnesses, Derrick Dunbar, was coerced into falsely testifying against Kelly and his co-defendants. Kelly later asserted to this Court that he had obtained a copy of an affidavit from Dunbar, in which Dunbar attested that he was threatened by the State and gave false testimony at Kelly's state criminal trial.[3]

         As a result, on July 1, 2015, the District Court stayed the matter to allow Kelly to exhaust state court review of his claim as it related to the newly discovered evidence/affidavit.[4] Since that time, Kelly has been allowed to reopen the case on the finding by the District Judge that Kelly exhausted state court review related to the affidavit as newly discovered evidence.[5] The matter was referred to the undersigned for determination and issuance of a report and recommendation. After supplemental briefing, this Report and Recommendation follows.

         II. State Court Factual and Procedural Background

         On August 13, 1998, Kelly and two co-defendants, Nathaniel Culverson and Houston Jackson, were indicted by a Jefferson Parish Grand Jury for the second degree murder and conspiracy to commit armed robbery.[6] They each entered a plea of not guilty to the charges on September 9, 1998.[7]

         The record reflects that, Jennifer Luttrell was the manager of the Chili's restaurant on West Esplanade Avenue in Kenner, Louisiana, when she was shot and killed in the early morning hours of December 21, 1997.[8] Luttrell had worked the evening shift on December 20, 1997, which ran from 3:30 p.m. until closing that night. The restaurant alarm records indicate that Luttrell closed the restaurant and set the alarm at 1:54 a.m. on December 21, 1997.

         Between 1:54 a.m. and 1:55 a.m., Honeywell, the alarm monitoring company, received three alarms. The first alarm was set off by the interior infrared motion detector, the second alarm was set off by the opening of an interior door, and the third alarm was triggered by the opening of an exterior door. Brown stated that all three alarms were restored, meaning that whatever caused the alarms to go off went back to a normal condition, such as when an open door is closed and the alarm sensors reconnect.

         Between 2:15 and 2:20 a.m., the regular cleaning crew, Frank and Bonnie Kerner, arrived to clean the Chili's. Frank Kerner immediately noticed that Luttrell's car was parked at an unusual angle in the parking lot. As he approached the door of the restaurant, he saw papers scattered on the floor inside and knew something was wrong. Once inside, he found Luttrell on the floor bleeding but still alive. Despite medical attention, Luttrell died of a gunshot wound to the back of her head.

         When Kenner City Police officers arrived, they could find no signs of forced entry into the restaurant. They noticed that Luttrell was still wearing her jewelry, including her wedding ring, earrings, and a gold chain. Her purse was on the serving counter and her keys were next to her on the floor. There also was no money missing from the restaurant safe.

         The Kenner City Police interviewed all of the Chili's employees including Culverson, who was a cook at the restaurant who had worked a double shift on December 20 ending with the evening shift at 10:52 p.m. He became a suspect when his statement to Detective Michael Cunningham conflicted with information in the managers' “red book, ” which was used by the shift managers to communicate with each other regarding activities or incidents occurring during each shift. Culverson told police that he had not had any disagreement with Luttrell during his two shifts on December 20. However, Luttrell's entry in the red book indicated that she had problems with Culverson and another employee during the evening shift.

         Over the next few months, Detective Cunningham learned that Culverson and Kelly had planned to rob the restaurant and that Jackson was involved in the plan. He obtained information that they intended to rob the restaurant by holding a gun to the manager's head and forcing her to open the safe. On April 3, 1998, Cunningham obtained arrest warrants for all three defendants.

         Kelly and his co-defendants were jointly tried before a jury on October 28 and November 2 through 7, 1998, and were found guilty as charged on both counts.[9] At a hearing held December 2, 1998, the state trial court sentenced each defendant to serve consecutive sentences of life in prison for second degree murder and for the conspiracy to commit armed robbery, Kelly and Jackson received 5 years in prison and Culverson received 10 years in prison, all without benefit of parole, probation, or suspension of sentence.[10] Jackson and Culverson later received enhanced sentences on count two as multiple offenders.[11] The multiple bill against Kelly was dismissed on February 3, 1999.[12]

         On direct appeal to the Louisiana Fifth Circuit, Kelly's counsel asserted the following errors:[13] (1) the evidence was insufficient to support the verdict; (2) the state trial court erred when it allowed into evidence written statements of two witnesses, Travis Robinson and Donald Collins; (3) the sentences imposed are excessive; (4) the state trial court erred by permitting into evidence photographs of a red-looking automobile; and (5) the state trial court erred when it denied a continuance based on an unavailable witness.

         On March 15, 2001, the Louisiana Fifth Circuit affirmed the consolidated appeals of Kelly, Culverson, and Jackson.[14] Specifically, the Court found no merit in any of Kelly's claims, or those of his co-defendants.[15]

         Kelly's conviction became final under federal law thirty (30) days later, on Monday, April 16, 2001, [16] because he did not file for rehearing or seek review in the Louisiana Supreme Court. Butler v. Cain, 533 F.3d 314, 317 (5th Cir. 2008) (citing Roberts v. Cockrell, 319 F.3d 690, 693 (5th Cir. 2003) (appeal is final when the state defendant does not timely proceed to the next available step in an appeal process).

         On April 20, 2001, Kelly signed and untimely[17] submitted a writ application to the Louisiana Supreme Court, which the Court denied without stated reasons on May 9, 2003.[18]

         Almost twenty-one months later, on May 2, 2005, Kelly signed and submitted to the state trial court an application for post-conviction relief asserting the following grounds for relief:[19] (1) the state trial court failed to exclude unreliable opinion evidence which denied him a fair trial; (2) the state trial court gave an improper jury charge on second degree murder at the beginning of the proceedings; (3) he was denied effective assistance when trial counsel failed to move for mistrial when the prosecutor vouched for the credibility of the victim and a witness, failed to file a motion to quash based on double jeopardy, erroneous jury instructions, and an insufficient description of the crime in the indictment; (4) the State failed to prove second degree murder beyond a reasonable doubt; (5) he was subject to an illegal conviction and sentence; and (6) the State was without jurisdiction to bring him to trial.

         On May 18, 2005, the state trial court denied the application by procedurally barring the second claim for Kelly's failure to object at trial and failed to and could have raised the claim on direct appeal or an earlier proceeding.[20] The Court also found that the remaining claims were meritless.

         On July 1, 2005, the Louisiana Fifth Circuit denied Kelly's related writ application finding no error in the Trial Court's ruling.[21] The Louisiana Supreme Court also denied Kelly's subsequent writ application for seeking untimely post-conviction review, citing La. Code Crim. P. art. 930.8 and State ex rel. Glover v. State, 660 So.2d 1189 (La. 1995).[22]

         More than three years later, on November 3, 2008, Kelly signed and submitted a writ application to the Louisiana Supreme Court seeking relief in accordance with that Court's holding in State v. Cordero, 993 So.2d 203 (La. 2008).[23] On April 24, 2009, the Court transferred to the writ application to the Louisiana Fifth Circuit for further consideration.[24]

         On February 24, 2010, pursuant to Cordero, the Louisiana Fifth Circuit reviewed Kelly's 2005 pro se writ application.[25] The Court denied relief finding that, because the underlying application for post-conviction relief filed in the state trial court on May 16, 2005, was untimely under La. Code Crim. P. art. 930.8, the denial of relief was proper. On March 25, 2011, the Louisiana Supreme Court denied Kelly's subsequent writ application without stated reasons.[26]

         Over two years later, on May 23, 2013, Kelly signed and submitted to the state trial court another application for post-conviction relief asserting that the State allowed Derrick Dunbar to testify falsely about his prior convictions and withheld evidence that Dunbar faced a rule to revoke his probation which information could have been used for impeachment.[27] Kelly also asserted that he was denied effective assistance of counsel because counsel failed to investigate the witnesses' criminal backgrounds to show that they had reason to testify falsely.

         On July 11, 2013, the state trial court denied Kelly's application for post-conviction relief. The trial court found that Kelly failed to meet any exception to the prescriptive period under La. Code Crim. P. art. 930.8 and that the information Kelly claimed to be newly discovered, specifically information regarding Dunbar's criminal proceedings and rule to revoke, was “readily available for review in the court records.”[28]

         On August 22, 2013, Kelly signed and submitted an untimely writ application to the Louisiana Fifth Circuit in which he asserted that the state trial court erred in denying his application without an evidentiary hearing and re-urged that the State failed to turn over the impeachment evidence. He also claimed he was not able to print the information from a computer until September 6, 2012.[29]. On October 9, 2013, the Louisiana Fifth Circuit denied Kelly's finding no error in the state trial court's ruling that Kelly's application was untimely and no exception to that rule was met.[30]

         On July 31, 2014, citing La. Code Crim. P. art. 930.8 and State ex rel. Glover, the Louisiana Supreme Court also denied Kelly's related writ application in which he asserted the same arguments that were before the appellate court.[31]

         Following the July 1, 2015, stay of his federal petition for habeas relief, Kelly signed and submitted to the state trial court an application for post-conviction relief in which he reasserted his claim that the State withheld impeachment evidence that Dunbar was threatened and encouraged to give false testimony based on the Dunbar affidavit.[32] The State filed an opposition asserting that the application was barred as successive under La. Code Crim. P. art. 930.4(D) and (E) and untimely under La. Code Crim. P. art. 930.8 and that Kelly failed to meet his burden of proving diligence or any exception to the prescriptive bar.[33] In the alternative, the State argued that the claim lacked merit on several grounds, including the lack of authenticity of the Dunbar affidavit and the state courts' prior findings in proceedings by Kelly's co-defendants that the affidavit is not credible and does not contradict the witness's trial testimony. The State also argued the suspect nature of the affidavit as one in a long line of solicited affidavits sought out by the co-defendant Jackson. In addition, the State argued that Dunbar's initial identification of Kelly as a suspect was made during the police investigations before Kelly's arrest and long before any involvement by a prosecutor.

         On March 17, 2016, the state trial court denied the application finding that it was untimely under La. Code Crim. P. art. 930.8, and that Kelly failed to prove an exception to that rule.[34]Alternatively, the Court noted that the affidavit, which had already been reviewed in connection with co-defendant Culverson's application for post-conviction relief, did not actually contradict the testimony of Dunbar. The Court noted instead that the “recantations” in the affidavit related to the trial testimony of another witness, Travis Robinson, and not any statements made by Dunbar. The Court found no credibility in the affidavit and that Kelly failed to establish his entitlement to relief.

         On May 25, 2016, the Louisiana Fifth Circuit denied Kelly's related writ application finding that the affidavit did not conflict with Dunbar's trial testimony and that Kelly failed to overcome the time limitations under La. Code Crim. P. art. 930.8.[35] On October 9, 2017, the Louisiana Supreme Court also denied Kelly's subsequent writ application finding no error in the state trial court's ruling.[36]

         III. Federal Petition

         On October 16, 2014, the clerk of this Court filed Kelly's federal petition for habeas corpus relief in which he asserted that evidence obtained September 6, 2012, revealed that the State encouraged perjured testimony and withheld impeachment evidence that demonstrated a promise of leniency to a key witness; Derrick Dunbar.[37]

         The State filed a response in opposition to Kelly's federal habeas petition asserting that the petition was not timely filed and that the information obtained by Kelly was not new evidence to constitute a new trigger for the federal limitations period.[38] The State further argues that the claim is in procedural default having been barred from review as untimely by the state courts.

         Kelly responded to the State's opposition urging the Court to consider cause for his procedural default through the newly discovered evidence exception.[39] Kelly also filed a motion to stay which was granted by the Court to allow him to exhaust state court review of the November 26, 2014, affidavit of Dunbar.[40]

         Upon order of the Court after reopening of the case, Kelly filed a supplemental brief reiterating his assertion that the Dunbar affidavit acted as newly discovered evidence to prove his claim that the State encouraged perjury and withheld impeachment evidence regarding a critical witness.[41]

         In its reply and supplemental opposition memorandum, the State urges the Court to take notice of the disposition of co-defendant Culverson's almost identical arguments in his federal habeas corpus petition, Civ. Action 17-7759“A” (5), in which another section of this Court has recommended dismissal of the petition with prejudice as time-barred and alternatively, as procedurally defaulted.[42] The State argues that similarly, Kelly's federal petition is time-barred and the Dunbar affidavit is not credible or constitute newly discovered evidence to alter the limitations calculation. Additionally, the State asserts that the claim, even with the Dunbar affidavit, is in procedural default.

         IV. General Standards of Review

         The Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), Pub. L. No. 104-132, 110 Stat. 1214, [43] applies to this petition, which is deemed filed in this Court no later than October 2, 2014.[44] The threshold questions on habeas review under the amended statute are whether the petition is timely and whether the claim raised by the petitioner was adjudicated on the merits in state court; i.e., the petitioner must have exhausted state court remedies and must not be in “procedural default” on a claim. Nobles v. Johnson, 127 F.3d 409, 419-20 (5th Cir. 1997) (citing 28 U.S.C. § 2254(b), (c)).

         The State concedes that Kelly has exhausted state court review of the claim. However, the State asserts that the petition was not timely filed under the AEDPA and alternatively, the claim is in procedural default, reserving the right to assert other procedural objections and address the merits if necessary. While both defenses are supported by the record, for the reasons that follow, the Court finds that, ...


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