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Blueford v. Hooper

United States District Court, W.D. Louisiana, Monroe Division

October 16, 2018

JOSEPH D. BLUEFORD L.A. DOC # 393195
v.
TIMOTHY HOOPER, WARDEN

          TERRY A. DOUGHTY JUDGE.

          REPORT AND RECOMMENDATION

          Karen L. Hayis United States Magistrate.

         Petitioner Joseph D. Blueford, an inmate in the custody of the Louisiana Department of Corrections in St. Gabriel, Louisiana, filed the instant petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254 on May 15, 2017.[1] [doc. # 1]. Petitioner attacks his March 22, 2012 convictions for aggravated battery and possession of a firearm by a convicted felon, his designation as a habitual offender, and his sentences of life at hard labor and a concurrent 65-year hard labor term imposed thereon by Louisiana's 4th Judicial District Court, Parish of Morehouse. This matter has been referred to the undersigned for review, report, and recommendation in accordance with the provisions of 28 U.S.C. § 636 and the standing orders of the Court.

         Background [2]

         Blueford was charged with two counts of attempted second degree murder, a violation of La. R.S. 14:27 and 14:30.1, and possession of a firearm by a convicted felon, a violation of La. R.S. 14:95.1. On March 22, 2012, the jury acquitted Blueford of one count of attempted murder and convicted him of aggravated battery on the second count and possession of a firearm by a convicted felon. Subsequently, the state filed a habitual offender bill, and the district court found that the defendant was a fourth-felony offender. On March 7, 2013, Blueford was sentenced to serve a life sentence, without parole, at hard labor for aggravated battery and a concurrent 65-year hard labor term, without parole, for possession of a firearm by a convicted felon.

         Blueford filed a direct appeal in the Second Circuit Court of Appeal, raising six claims for relief: (1) insufficient evidence to support the convictions; (2) evidence of prior crimes was inadmissible; (3) limited cross examination was impermissible; (4) excessive sentence; (5) illegal jury of 11 persons; and (6) conviction by a non-unanimous jury was unconstitutional. [doc. # 16-4 at 1360-1403]. On March 5, 2014, the Second Circuit affirmed Blueford's convictions and sentences. Blueford, 137 So.3d 54. The Louisiana Supreme Court denied Blueford's subsequent application for writ of certiorari on November 21, 2014. State v. Blueford, 2014-0745 (La. 11/21/14), 160 So.3d 968. Blueford filed a petition for certiorari in the United States Supreme Court, which was denied on April 27, 2015. Blueford v. Louisiana, 135 S.Ct. 1900 (2015).

         On April 8, 2016, Blueford filed an application for post-conviction relief in the district court. He alleged he was denied effective assistance of counsel when his trial counsel, George W. Britton III, (1) failed to object to a juror, Helen Massey, remaining on the jury and returning a verdict when she said she had not heard or understood the evidence; and (2) failed to file a Motion to Quash the Habitual Offender Bill of Information on grounds that it contained allegations of irrelevant convictions, and failed to object to the inclusion and consideration of such convictions at the habitual offender hearing. Blueford also claimed that the trial court erred when it permitted juror Massey to cast the deciding vote on guilt after admitting she did not hear and did not understand any of the testimony. [doc. # 16-5 at 1473-1504].

         The district court denied the application on August 29, 2016. [doc. # 16-5 at 1505-08][3]. The Second Circuit Court of Appeal denied Blueford's application on December 8, 2016. [doc. # 16-5 at 1543]. On February 1, 2017, Blueford filed a writ application in the Louisiana Supreme Court, [doc. # 16-5 at 1544-76], which the court denied as untimely on April 24, 2017. [doc. # 16-5 at 1577-78].

         On May 15, 2017, Blueford filed the instant federal habeas corpus petition raising the same claims as in the state court:

Claim One: Petitioner was denied effective assistance of counsel in violation of the Fifth, Sixth, and Fourteenth Amendments to the United States Constitution and Article 1, Section 13 of the Louisiana Constitution when counsel
(1) failed to object to Ms. Massey remaining on the jury and returning a verdict when she said she had not heard or understood the evidence; and
(2) failed to file a Motion to Quash the Habitual Offender Bill of Information on grounds that it contained allegations of irrelevant convictions, and failed to object to their inclusion and consideration at the habitual offender hearing.
Claim Two: The trial court erred when it permitted a juror to cast the deciding vote on guilt after admitting she did not hear and did not understand any of the testimony, in violation of the right to a fair trial and due process under the Fifth, Sixth, and Fourteenth Amendments to the United States Constitution and Article 1, Section 17 of the Louisiana Constitution.

[see docs. # 1-2, 5].

         The State filed its response on March 14, 2018. [docs. # 15, 16].[4] On March 26, 2018, Blueford filed a reply. [doc. # 17]. On August 28, 2018, the undersigned held an evidentiary hearing on the issue of juror competence, with testimony from Petitioner, his trial counsel, the prosecutor in his case, Stephen Sylvester, and a member of the petit jury from Petitioner's trial. [docs. # 19, 28]. After post-hearing briefing, [docs. # 30, 31, 32], the matter is now ripe.

         Discussion I.

         Standard of Review - 28 U.S.C. § 2254

          Te Antiterrorism and Effective Death Penalty Act (“AEDPA”) of 1996, 28 U.S.C. § 2254, governs habeas corpus relief. The AEDPA limits how a federal court may consider habeas claims. After a state court has adjudicated a prisoner's claims on the merits, federal review “is limited to the record that was before the state court.” Cullen v. Pinholster, 563 U.S. 170, 181 (2011). An application for a writ of habeas corpus should be granted if the petitioner shows that the adjudication of the claim in state court:

(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or
(2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.

28 U.S.C. § 2254(d)(1)-(2).

         A decision is “contrary to” clearly established Federal law “if the state court arrives at a conclusion opposite to that reached by . . . [the Supreme Court] on a question of law or if the state court decides a case differently than . . . [the Supreme Court] has on a set of materially indistinguishable facts.” Dowthitt v. Johnson, 230 F.3d 733, 740-41 (5th Cir. 2000) (quoting Williams v. Taylor, 529 U.S. 362, 412-13 (2000)). “The ‘contrary to' requirement refers to holdings, as opposed to the dicta, of . . . [the Supreme Court's] decisions as of the time of the relevant state-court decision.” Id. at 740 (citations and internal quotations omitted). Under the “unreasonable application” clause, a federal habeas court may grant the writ only if the state court “identifies the correct governing legal principle from . . . [the Supreme Court's] decisions but unreasonably applies the principle to the facts of the prisoner's case.” Id. at 741.

         Section 2254(d)(2) speaks to factual determinations made by the state courts. Federal courts presume such determinations to be correct; however, a petitioner can rebut this presumption by clear and convincing evidence. 28 U.S.C. § 2254(e)(1). AEDPA has put into place a deferential standard of review, and a federal court must defer to a state court adjudication on the merits. Valdez v. Cockrell, 274 F.3d 941, 950 (5th Cir. 2001). “As a condition for obtaining habeas corpus from a federal court, a state prisoner must show that the state court's ruling on the claim being presented in federal court was so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement.” Harrington v. Richter, 562 U.S. 86, 103 (2011).

         AEDPA's statutory scheme is designed to discourage state prisoners from submitting new evidence in federal court. Cullen, 563 U.S. at 186. However, when a state court fails to adjudicate a claim on the merits, a federal court may consider new evidence. See Rapelje v. McClellan, 134 S.Ct. 399, 400 (2013) (“A federal evidentiary hearing is permissible for a particular claim only if . . . the claim was not ‘adjudicated on the merits by a state court.'”). Here, the state court did not hold a hearing or make findings of fact on Blueford's claim that his Sixth Amendment right to effective assistance of counsel was violated when trial counsel failed to object to a juror remaining on the jury after she said she failed to hear or understand the evidence. Accordingly, this Court may consider new evidence and render a decision on the merits. See Banks v. Vannoy, 708 Fed.Appx. 795, 800 (5th Cir. 2017) (citing Rapelje, 134 S.Ct. at 400).

         II. Petitioner's Claims

         A. Claim One: Ineffective Assistance of Counsel

         Blueford asserts that his counsel was ineffective in two respects: (1) in failing to object to Ms. Massey remaining on the jury and returning a verdict when she had not heard or understood the evidence; and (2) in failing to file a Motion to Quash the Habitual Offender Bill of Information and failing to object to the inclusion and consideration of prior convictions at the habitual offender hearing.

         To prevail on an ineffective assistance claim, a petitioner (1) “must show that counsel's performance was deficient, ” and (2) “that the deficient performance prejudiced [him].” Strickland v. Washington, 466 U.S. 668, 687 (1984). A failure to prove either prong defeats the claim. Green v. Johnson, 160 F.3d 1029, 1035 (5th Cir. 1998). The prongs of this test need not be analyzed in any particular order. See Strickland, 466 U.S. at 697. Further, “[m]ere conclusory allegations in support of a claim of ineffective assistance of counsel are insufficient to raise a constitutional issue.” Green, 160 F.3d at 1042.

         To satisfy the first prong, Blueford must prove his counsel's performance “fell below an objective standard of reasonableness.” Strickland, 466 U.S. at 688. In applying the first prong, federal courts presume counsel has provided competent professional assistance. See Id. at 689-90. A court deciding an ineffectiveness claim must judge the reasonableness of counsel's conduct on the facts of the case, at the time of the conduct, keeping in ...


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