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Kuhn v. Warden, Rayburn Correctional Center

United States District Court, E.D. Louisiana

September 27, 2018

RICHARD KUHN
v.
WARDEN, RAYBURN CORRECTIONAL CENTER

         SECTION “I” (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. Factual and Procedural Background

         The petitioner, Richard Kuhn (“Kuhn”), is a convicted inmate incarcerated in the B.B. “Sixty” Rayburn Correctional Center in Angie, Louisiana.[2] On March 18, 2009, Kuhn was indicted by a Washington Parish Grand Jury on one count of second degree murder.[3]

         The record reflects that, Kenneth Roach and Michael Apple white lived at a residence located on Highway 60.[4] The victim, Joseph L. Thibault III, occasionally stayed there with them. On October 24, 2008, Washington Parish Sheriff's Detective Dorman Kellis was called to the residence on the report of a battery. Detective Kellis spoke with Kuhn who told him that he had taken Thibault to various businesses in Bogalusa earlier that day in an attempt to cash checks. At one point, Thibault dropped a checkbook and when Kuhn picked it up, he saw that it belonged to Roach. Kuhn called Roach who confirmed that he had not given anyone permission to cash his checks. Kuhn refused to give the checkbook back to Thibault. After driving to Roach's house, the two men got into an altercation during which Kuhn kicked Thibault and hit him in the jaw.

         Kuhn went into the house at least once to speak to Roach about the checkbook. When Roach again confirmed it was his checkbook, Kuhn headed back outside, and Applewhite followed him. From about six to eight feet from the driver's side door, Applewhite saw that Thibault was in the truck and apparently unconscious. Kuhn grabbed Thibault and pulled him out of the passenger side door. When Kuhn began kicking Thibault, Applewhite went inside to get Roach to intervene. Roach went outside and hollered for Kuhn to stop. Applewhite and Roach then went back inside, and Kuhn soon followed behind them to call 911.

         The emergency personnel arrived to find Thibault in an unconscious state. After reviving him, he was taken to the emergency room. Thibault again was revived by the emergency room doctor. Thibault's head showed several layers of contusions and superficial lacerations, and he had rib fractures and a spleen injury. The treating physician performed surgery, but Thibault did not respond to further efforts to sustain him. He died from complications of a ruptured spleen.

         Kuhn was tried before a jury on August 29 through September 1, 2011, and was found guilty of the lesser charge of manslaughter.[5] On October 10, 2011, the Court sentenced Kuhn to serve 25 years in prison at hard labor.[6] Kuhn also entered a plea of not guilty to the State's multiple offender bill.[7] At a hearing held June 14, 2013, Kuhn stipulated to being a second felony offender, and was resentenced as a second felony offender to serve 25 years in prison without benefit of probation, or suspension of sentence.[8]

         On direct appeal, Kuhn's appointed counsel asserted that the state trial court erred by accepting the verdict when the evidence established that Kuhn acted in self-defense.[9] On September 25, 2014, the Louisiana First Circuit affirmed Kuhn's conviction and habitual offender adjudication and sentence, finding that the evidence was sufficient to support the verdict.[10]

         Kuhn's conviction was final under federal law thirty (30) days later, on Monday, October 27, 2014, [11] because he did not file for rehearing or seek timely 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, Vol. 4 of 8, Trial Transcript (continued), 8/29/11; St. Rec. Vol. 5 of 8, Trial Transcript, 8/30/11; St. Rec. Vol. 6 of 8, Trial Transcript, 8/31/11; Trial Transcript, 9/1/11. 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 October 28, 2014, Kuhn signed and untimely[12] submitted a writ application to the Louisiana Supreme Court, which the Court denied without stated reasons on September 11, 2015.[13]

         On September 22, 2015, Kuhn signed and submitted an application for post-conviction relief to the state trial court asserting that he received ineffective assistance of counsel when counsel failed to timely notify him of a plea offer by the State and failed to object to the State's failure to present “Brady” evidence of petitioner's physical disabilities.[14] On October 26, 2016, the Trial Court summarily denied the application.[15]

         On February 22, 2016, the Louisiana First Circuit denied Kuhn's related writ application, because Kuhn failed to meet the procedural filing requirements.[16] The Court granted Kuhn until April 7, 2016, to file a proper writ application. Kuhn did so on April 4, 2016, and the Court summarily denied that writ application on June 20, 2016.[17]

         On October 27, 2017, the Louisiana Supreme Court denied Kuhn's subsequent writ application citing Strickland v. Washington, 466 U.S. 668 (1984).[18]

         II. Federal Petition

         On May 16, 2018, after correction of certain deficiencies, the clerk of this Court filed Kuhn's federal petition for habeas corpus relief in which he asserted that he received ineffective assistance of counsel when counsel failed to inform him of a plea offer by the State and failed to object to the State's failure to raise exculpatory Brady evidence of Kuhn's physical disability.[19]

         The State filed a response in opposition to Kuhn's federal habeas petition asserting that it was not timely filed and the claims are otherwise meritless.[20]

         III. General Standards of Review

         The Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), Pub. L. No. 104-132, 110 Stat. 1214, [21] applies to this petition, which is deemed filed in this Court no later than April 27, 2018.[22] 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 Kuhn exhausted state court review of the claims and asserts that the petition was not timely filed under the AEDPA. For the following reasons, the Court finds that Kuhn's federal habeas ...


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