United States District Court, W.D. Louisiana, Lake Charles Division
BRANDON J. OFFICE D.O.C. # 396954
REPORT AND RECOMMENDATION
the court is a petition for writ of habeas corpus filed
pursuant to 28 U.S.C. § 2254 by Brandon J. Office, who
is proceeding pro se in this matter. Office is an inmate in
the custody of the Louisiana Department of Public Safety and
Corrections and is currently incarcerated at Raymond Laborde
Correctional Center in Cottonport, Louisiana. W.S. McCain,
warden of that facility and respondent in this matter,
opposes the petition and has produced a supplemental response
in accordance with this court's order to more fully and
accurately cite the record. Doc. 18; see docs. 33,
34. The respondent has also filed a supplemental brief on the
issue of equitable tolling, and the petitioner has responded.
See docs. 38, 41.
petition is referred to the undersigned for review, report,
and recommendation in accordance with 28 U.S.C. § 636
and the standing orders of the court. For the following
reasons IT IS RECOMMEDED that the petition
for writ of habeas corpus be DENIED and
DISMISSED WITH PREJUDICE.
Conviction Office was charged by bill of
information in the Thirtieth Judicial District Court, Vernon
Parish, Louisiana, with one count of armed robbery with force
while armed with a firearm, a violation of Louisiana Revised
Statute § 14:64; and one count of aggravated kidnapping
by force with the use of a firearm, a violation of Louisiana
Revised Statute § 14:44. Doc. 25, p. 14. The second
count was subsequently amended to second degree kidnapping, a
violation of Louisiana Revised Statute § 14:44.1.
Id. Both charges related to an incident on July 1,
2005. Id. The Louisiana Third Circuit Court of
Appeal summarized the events as follows:
The victim, Antonio Jordan, was with friends in a Leesville
diner at approximately 1:00 a.m. on July 1, 2005. As Jordan
was leaving the diner, Defendant approached him and asked him
about his 1985 Buick, which was for sale. As the two men
discussed the car, the victim's friends left in other
vehicles. Defendant had an associate nearby, sitting in a
white Ford Taurus. Defendant asked to test drive the car, but
the victim refused. Defendant walked over to the Taurus, and
when he returned, he forced the victim into the passenger
seat of the car. Although he did not see a gun at that time,
the victim complied because he felt a gun digging into his
side. Defendant then got in also, and drove north on Highway
171. The driver in the white Taurus followed.
After they got into the Buick, the victim saw Defendant's
gun. Once the cars crossed the intersection of Highway 28,
they pulled over to the right shoulder of the road. Testimony
indicated the area north of the intersection is not well lit.
Defendant pointed his gun at the victim and ordered him out
of the car. The victim attempted to punch Defendant, who
evaded the blow. The victim jumped out of the car and heard a
gunshot behind him. Defendant then resumed his northbound
route in the stolen Buick, and the driver in the Taurus
Later, after a Many police officer tried to apprehend him,
Defendant left the stolen car and rendezvoused with his
associate in the white Taurus. Police apprehended Defendant
further north, after a car chase.
State v. Office, 967 So.2d 1185, 1187-88 (La. Ct.
App. 3d Cir. 2007). Office waived his right to a jury trial
and the matter proceeded to a bench trial on April 11, 2006.
Doc. 25, pp. 9, 10. The trial concluded that day and the
trial judge found Office guilty as charged. Id. at
10. On November 28, 2006, Office dismissed a previous request
for a sentencing hearing and was sentenced to two concurrent
forty-year terms of imprisonment, with the entire term for
the armed robbery conviction and first two years of the term
for the kidnapping conviction to be served without benefit of
probation, parole, or suspension of sentence. Id. at
13; doc. 25, att. 4, pp. 25-27.
sought review in the Louisiana Third Circuit Court of Appeal,
raising the following assignments of error:
1. There was insufficient evidence to support the
2. The trial court erred in denying a motion for new trial
based on insufficient evidence.
3. The forty-year sentences are excessive.
Office, 967 So.2d at 1188-94. The court reviewed all
claims on the merits and affirmed the conviction and
sentence. Id. Office then sought review in the
Louisiana Supreme Court, which denied same on April 18, 2008.
State v. Office, 978 So.2d 348 (La. 2008). He did
not file a petition for writ of certiorari in the United
States Supreme Court. Doc. 1, p. 2.
State Collateral Review
filed a pro se application for post-conviction relief in the
trial court on September 30, 2009. Doc. 21, att. 4, pp. 5-31.
There he raised several claims, including an allegation that
the trial court had denied him his right to trial by jury by
proceeding with a bench trial without determining that his
waiver of a jury was knowing and voluntary. Id.
After that filing he continued to submit numerous supplements
until the trial court ruled on January 25, 2013. Doc. 21,
att. 6, pp. 1-2. The court ordered that a hearing be held on
Office's Motion for New Trial [doc. 21, att. 5, pp.
24-34], based on newly discovered evidence and ordered the
state to file a response to the claims raised in his first
application for post-conviction relief. Doc. 21, att. 6, pp.
1-2. Other than that, it determined, the remaining
applications/supplements should be dismissed as repetitive
and/or successive. Id.
hearing was held in the trial court on December 15, 2014, in
which both the Motion for New Trial and Application for
Post-Conviction Relief were denied. Id. at 3-46;
doc. 21, att. 7, pp. 1-34. Office sought review in the Third
Circuit, which determined that the trial court (2) had failed
to rule on Office's claim that he was denied his right to
trial by jury, (2) had erred in determining that his claim of
ineffective assistance based on failure to investigate and
call witnesses, raised in one of his supplemental
applications, was repetitive and successive and (3) had
failed to comply with Louisiana Code of Criminal Procedure
Article 930.4(F), which requires that the court order the
petitioner to state reasons for his failure to raise a claim
in a prior application before dismissing a claim on that
basis. Doc. 21, att. 1, p. 34. Accordingly, it granted the
writ in part, remanding the case as to those claims, and
denied it in all other respects. Id.
state district court conducted a hearing on October 14, 2015,
to address the ineffective assistance and denial of right to
trial by jury claims. Doc. 24, att. 2, pp. 8-30. In that
hearing the court determined that there was no merit to the
jury trial claim and that the petitioner had not excused his
failure to raise the ineffective assistance claim in a prior
application. Id. at 14-18, 27- 28. The petitioner
sought review in the Third Circuit, which denied same on July
12, 2016, stating that it found no error to the state
district court's ruling. Doc. 21, att. 9, p. 1. On
November 28, 2017, the Louisiana Supreme Court likewise
denied writs. Id. at 2-3.
Federal Habeas Petition
filed the instant petition in this court on January 23, 2018.
Doc. 1; see doc. 1, att. 2, p. 28 (providing date of
mailing). Here he raises the following claims:
1. The trial court committed constitutional error by
proceeding with a bench trial when the record establishes
that Office did not knowingly and intelligently waive his
right to trial by jury.
2. Trial counsel provided ineffective assistance by failing
to subpoena witnesses to testify for the