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State v. Dressner

Supreme Court of Louisiana

October 29, 2018

STATE OF LOUISIANA
v.
DUSTIN DRESSNER

          ON SUPERVISORY WRITS TO THE TWENTY-FOURTH JUDICIAL DISTRICT COURT, PARISH OF JEFFERSON

          PER CURIAM

         Denied. In 2004, a Jefferson Parish jury found relator, Dustin Dressner, guilty as charged of the first degree murder of Paul Fasullo. At trial, Fasullo's wife, Shannon, testified that she answered a knock on her door around 10:30 p.m. on June 6, 2002, to find Dressner (with whom she was familiar) and a black male asking to come inside to buy drugs. When Shannon declined and turned to close her door, one of the men struck her over the head with a glass wine bottle and both entered, armed with knives that Dressner had taken from a friend's apartment earlier in the day. The commotion woke Paul, who struggled with Dressner and ultimately sustained multiple stab wounds, lacerations, and abrasions to his chest, upper neck, and head areas; one of the chest wounds proved fatal. Shannon retreated to her bedroom in an attempt to protect her two-year-old daughter. Dressner chased after Shannon, who had begun to call 911, and he sliced her throat. After a prolonged struggle of her own, Shannon locked herself in the bathroom, but Dressner's accomplice kicked down the door. The men continued the attack, stabbing Shannon at least twice more before ultimately fleeing the scene. Shannon survived her grave wounds and later identified Dressner in a six-person photographic lineup.

         The state presented a detailed recorded statement in which Dressner admitted his involvement in the home invasion murder and that he inflicted the fatal stab wound to Fasullo's chest. In the same statement, Dressner identified a black male named "Kelly" (Kellen Parker) as the other individual who entered the Fasullos' home with him and Troy Arnaud as a third man who was present in a car parked outside the home. Dressner assisted the police in identifying relevant addresses where his accomplices could be found and in locating discarded pieces of the weapons used in the attack.

         After finding Dressner guilty as charged, jurors unanimously agreed to impose a sentence of death in light of the aggravating circumstances that the offense was committed in an especially heinous, atrocious, or cruel manner, and that the offender knowingly created a risk of death or great bodily harm to more than one person. The trial court sentenced him to death by lethal injection in accord with the jury's determination. This Court affirmed the conviction and sentence. State v. Dressner, 08-1366 (La. 7/6/10), 45 So.3d 127, cert. denied, 562 U.S. 1271, 131 S.Ct. 1605, 179 L.Ed.2d 500 (2011).

         In 2011, Dressner filed a pro se "shell" application for post-conviction relief. Thereafter, appointed counsel enrolled and filed two lengthy supplemental applications alleging a total of 16 claims. On November 16, 2017, the district court dismissed seven of the claims on procedural grounds. On January 12, 2018, the district court summarily denied the remaining claims with written reasons.

         As an initial matter, Dressner contests the district court's procedural rulings, urging that, because he did not raise any ineffective assistance of counsel claims on appeal, each of his post-conviction ineffective assistance of counsel claims which the district court dismissed as repetitive were in fact new claims.

         In State v. Lee, 14-2374, pp. 8-9 (La. 9/18/15), 181 So.3d 631, 638, another post-conviction capital case, we explained that an "attempt to re-litigate a claim that has been previously disposed of, by couching it as a post-conviction ineffective assistance of counsel claim, [should be] generally unavailing." As we found in Lee, Dressner's post-conviction ineffective assistance of counsel claims predicated upon issues which were in fact considered on appeal are not truly new claims under La.C.Cr.P. art. 930.4(A). The district court correctly dismissed part of one of Dressner's ineffective assistance of counsel claims under La.C.Cr.P. art. 930.4(A)- that trial counsel failed to object to the trial court's "unreasonable demands" of the jury-as having been fully litigated on appeal. See Dressner, 08-1366 (unpub'd appx., pp. 1-5).

         Dressner also argues that the district court in other instances denied claims as repetitive under La.C.Cr.P. art. 930.4(C) (for claims raised in the trial court and inexcusably omitted on appeal) without first ordering him to state the reasons for his failure under La.C.Cr.P. art. 930.4(F). We note first that the district court afforded Dressner an opportunity to respond in writing to the state's procedural objections citing to La.C.Cr.P. art. 930.4(C). Dressner filed a reply, so the district court has substantially complied with La.C.Cr.P. art. 930.4(F). Moreover, even a claim which the district court has erroneously dismissed on procedural grounds does not necessarily warrant remand. State v. Singer, 09-2167, pp. 1-2 (La. 10/1/10), 45 So.3d 171, 171-72 (per curiam); see also La.S.Ct.R. X, § 1(a)(4) (supervisory writ grant based on a lower court's erroneous interpretation or application of law is generally not warranted unless the Court finds that the error "will cause material injustice or significantly affect the public interest."). A thorough assessment of Dressner's post-conviction claims reveals further that even those claims which the district court might have erroneously dismissed as repetitive do not warrant further review, as explained below.

         First, Dressner is correct that his claim of ineffective assistance of counsel for failing to present evidence of mental illness to suppress his confession was not litigated on appeal. However, he fails to show grounds for remanding it. Dressner fails to identify what mental illness evidence he would have had trial counsel introduce or how it might have undermined the voluntariness of his confession. He refers to this evidence only in the abstract-"an extensive history of mental illness and poly-substance abuse" and "the myriad mental health information"-and in no way that persuasively demonstrates how the voluntariness of his confession might be called into question. Because Dressner has not demonstrated that counsel would have been successful in suppressing his confession on the strength of any such evidence, he has not adequately proven deficient performance or prejudice. While the district court invoked an improper procedural bar, the claim was worthy of summary denial on its merits under La.C.Cr.P. art. 929(A). This claim does not warrant remand.

         Next, Dressner urges four related claims which challenge the death penalty on varied grounds. First, he contends that Louisiana's lethal injection protocol violates the Eighth Amendment's prohibition against cruel and unusual punishment.[1]Second, he asserts that the death penalty violates international human rights law because it constitutes an arbitrary deprivation of life and is exacerbated by his "significant mental illness." Third, Dressner argues that the Fourth and Eighth Amendments, customary international law, and the International Covenant on Civil and Political Rights entitle him to a fair clemency process which complies with a minimum level of due process. Fourth, he avers that Louisiana's death penalty scheme is unconstitutional because it is imposed in an arbitrary and discriminatory manner and does not sufficiently narrow the class of offenders eligible for it. The district court procedurally barred the first, second, and fourth of these related claims under La.C.Cr.P. art. 930.4(C) as having been raised in the trial court and inexcusably omitted on appeal. The district court also ruled that the first, third, and fourth of these related claims did not present cognizable claims for relief under La.C.Cr.P. art. 930.3.

         Even assuming arguendo that the district court should have reached the merits of these claims, Dressner shows no basis for remand. His claim concerning Louisiana's lethal injection protocol requires him to show that the procedure "creates a demonstrated risk of severe pain . . . . [and] that the risk is substantial when compared to the known and available alternatives." Baze v. Rees, 553 U.S 35, 61, 128 S.Ct. 1520, 1537, 170 L.E.2d 420 (2008). A related claim is pending in the United States District Court for the Middle District of Louisiana, where-on July 16, 2018-Judge Shelly Dick imposed a 12-month extension to an order temporarily staying all executions in Louisiana. In light of that pending matter, Dressner's execution protocol claim does not warrant remand or relief in its current posture.

         Further, although international law is relevant in interpreting the Eighth Amendment's ban on cruel and unusual punishment, see Graham v. Florida, 560 U.S. 48, 80, 130 S.Ct. 2011, 2033, 176 L.Ed.2d 825 (2010), Dressner introduces no authority for the idea that his execution is prohibited by international law. Insofar as Dressner argues the ICCPR should apply, the treaty is not self-executing, meaning the Court may not enforce it in the absence of corresponding state or federal legislation. See Inapplicability of ICCPR to Death Penalty Case, 95 Am. J. Int'l L. 878, 879 (2001); see also S. Res. of Advice and Consent to Ratification of the ICCPR, 102d Cong., 138 Cong. Rec. S4781, S4783 (daily ed. Apr. 2, 1992) (declaring that "the provisions of articles 1 through 27 of the Covenant are not self-executing."). These claims do not warrant relief or remand for additional factual development.

         Lastly, in order to avoid arbitrary and capricious imposition of the death penalty, an aggravating circumstance used to justify a death penalty "must genuinely narrow the class of persons eligible for the death penalty and must reasonably justify the imposition of a more severe sentence on the defendant compared to others found guilty of murder." Zant v. Stephens, 462 U.S. 862, 877, 103 S.Ct. 2733, 2742, 77 L.Ed.2d 235 (1983). The United States Supreme Court has found that the narrowing function of Zant is satisfied by the specification of circumstances in R.S. 14:30 for differentiating first degree murder from other forms of homicide. Lowenfeld v. Phelps, 484 U.S. 231, 108 S.Ct. 546, 98 L.Ed.2d 568 (1988). As a result, Dressner is not entitled to a remand for further consideration of this claim.

         In sum, Dressner shows no reversible error as to the district court's procedural rulings on the claims identified in his applications as Claims III, VII, VIII, IX, and XVI. The district court correctly invoked the procedural bar of La.C.Cr.P. art. 930.4(A) as to part of Claim XV (related to the trial court's "unreasonable demands" of the jury), and its merits ruling on the remaining part of that claim is addressed below. The district court also procedurally barred Claim X (alleging cumulative error) as one not cognizable in post-conviction relief proceedings, but that claim also is addressed below.

         As to those claims the district court rejected after considering the merits, Dressner also shows no basis for relief. All but one of these remaining claims involve allegations of ineffective assistance of counsel. Under the standard for ineffective assistance of counsel set out in Strickland v. Washington, 466 U.S. 669, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), a reviewing court must reverse a conviction if the petitioner establishes (1) that counsel's performance fell below an objective standard of reasonableness under prevailing professional norms; and (2) that counsel's inadequate performance prejudiced defendant to the extent that the trial was rendered unfair and the verdict suspect. When the substantive issue that an attorney has not raised has no merit, then the claim that the attorney was ineffective for ...


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