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Brandon J. Office D.O.C. # 396954 v. McCain

United States District Court, W.D. Louisiana, Lake Charles Division

October 15, 2018

BRANDON J. OFFICE D.O.C. # 396954
v.
W.S. McCAIN

         SECTION P

          SUMMERHAYS, JUDGE

          REPORT AND RECOMMENDATION

          KAY, MAGISTRATE JUDGE

         Before 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.

         This 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.

         I.

         Background

         A. 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 followed him.
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.

         B. Direct Appeal

         Office sought review in the Louisiana Third Circuit Court of Appeal, raising the following assignments of error:

1. There was insufficient evidence to support the convictions.
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.

         C. State Collateral Review

         Office filed a pro se application for post-conviction relief in the trial court on September 30, 2009.[1] 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.

         A 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.

         The 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.

         D. Federal Habeas Petition

         Office 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 defense.[2]

         Doc. 1, ...


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