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Atkins v. Hooper

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

November 19, 2018

JUSTIN TERRELL ATKINS LA DOC # 465731
v.
TIMOTHY HOOPER

          TERRY A. DOUGHTY JUDGE

          REPORT AND RECOMMENDATION

          Karen L. Hayes United States Magistrate Judge

         Petitioner Justin Atkins, an inmate in the custody of Louisiana's Department of Corrections, filed the instant petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254 on November 27, 2017. [docs. # 1, 5].[1] Atkins attacks his 2010 convictions for armed robbery and aggravated battery, as well as the 45-year sentence imposed by Louisiana's 4th Judicial District Court, Ouachita Parish. 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

         The underlying facts in this case have been set forth by the Louisiana Second Circuit Court of Appeal as follows:

On January 2, 2009, Robert Jones, Howard Bishop, and Tom Harris were drinking together at Jones' modest residence on Jackson Street in Monroe. All three men lived in the neighborhood. Bishop and Jones had just returned to the residence after cashing Jones' VA check. Atkins knew of the transaction.
Atkins kicked in the door, barged into the home, and demanded money from Jones, who refused. Atkins began beating Jones with the butt of a firearm. Harris intervened and was also struck with the firearm. Bishop witnessed all of this, even observing Atkins take the money from Jones' pocket.
Lurking at the door during the robbery was a man named Lawrence Horton, known in the neighborhood only as “O.” Horton had been living with Harris for a few months. That morning, however, Harris ordered him to leave. Harris had known Horton for about a year.
A few days after the robbery, Harris later found some correspondence at the residence which bore O's real name: Lawrence Horton.
Eight days after the robbery, Horton sent word that he wanted to speak with the police. When Detective Jeffrey Dowdy questioned him, Horton admitted his part in the robbery. He blamed mainly Atkins for this crime.
After an arrest warrant was secured, Atkins was arrested.
Harris later obtained a photo of the robber, whom he identified as “J. Money.” Harris gave the photo to the detective, claiming that it depicted the person who beat him, and who had beaten and robbed Jones.

State v. Atkins, 46, 613 (La.App. 2 Cir. 9/21/11), 74 So.3d 238, 239.

         On June 18, 2010, a jury found Atkins guilty of armed robbery, a violation of La. R.S. 14:64, and aggravated battery, a violation of La. R.S. 14:34. He was subsequently sentenced to 35 years at hard labor for the armed robbery, and a consecutive 10-year hard labor term for the aggravated battery. Id.

         Atkins filed a direct appeal in the Second Circuit Court of Appeal, raising three issues: (1) insufficient evidence; (2) a tainted lineup identification; and (3) excessive sentence. On September 21, 2011, the Second Circuit affirmed Atkins' convictions and sentences. Id. On February 17, 2012, the Louisiana Supreme Court denied Atkins' subsequent application for writ of certiorari and/or review. State v. Atkins, 2011-2287 (La. 2/17/12), 82 So.3d 284. Atkins did not file a petition for certiorari in the United States Supreme Court. [doc. # 5 ¶ 9(h)].

         On December 6, 2012, Atkins filed an application for post-conviction relief in the state district court, alleging: (1) denial of his Sixth Amendment right to confront and cross-examine the witnesses against him; (2) the trial court erred in allowing a substantial amount of hearsay evidence to prove key elements of the state's case; and (3) counsel was ineffective in trial and pre-trial proceedings. [doc. # 14-1]. On July 27, 2015, Atkins filed an “Amended Brief in Support of Application for Post-Conviction Relief, ” [doc. # 14-3], which the court denied. [doc. # 14-4]. The Second Circuit Court of Appeal denied his application on April 28, 2016. [doc. # 14-6]. Atkins sought a supervisory and/or remedial writ, which the Louisiana Supreme Court denied on September 29, 2017. State ex rel. Atkins v. State, 2016-1082 (La. 9/29/17), 227 So.3d 251. In its per curiam opinion, the Louisiana Supreme Court found that Atkins had fully litigated his application for post-conviction relief in state court and exhausted his right to state collateral review. Id.

         On November 27, 2017, Atkins filed the instant federal habeas corpus petition, arguing he was denied his right to confrontation, in violation of the Sixth Amendment to the United States Constitution, when the State introduced testimony from his co-defendant without providing Atkins with the opportunity for cross-examination. (Memorandum in Support (“Mem.”), [doc. # 1-2]). The State filed its response on June 22, 2018. [doc. # 18]. Atkins filed a reply on July 30, 2018. [doc. # 19].[2] This matter is ripe.

         Standard of Review

         The Antiterrorism and Effective Death Penalty Act (“AEDPA”) of 1996, 28 U.S.C. § 2254, governs habeas corpus relief of a state prisoner. 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 ...

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