United States District Court, W.D. Louisiana, Monroe Division
A. DOUGHTY MAG. JUDGE.
REPORT AND RECOMMENDATION
L. HAYES UNITED STATES MAGISTRATE JUDGE.
Dveil Freeman, 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
April 27, 2018. [doc. # 1]. Freeman attacks his convictions
for second degree murder and seven drug related offenses and
the sentences imposed for each crime 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.
13, 2010, Freeman was charged by bill of indictment with the
following offenses: (1) second degree murder of David Green;
(2) possession of cocaine with intent to distribute; (3)
possession of N-benzylpiperazine with intent to distribute;
(4) possession of 400 grams or more of cocaine; (5)
conspiracy to distribute a Schedule I controlled dangerous
substance (“CDS”); (6) conspiracy to distribute a
Schedule II CDS; (7) conspiracy to commit transactions
involving proceeds from drug offense; and (8) transactions
involving proceeds from drug offense.
7, 2010, Freeman filed a motion to suppress, seeking to
suppress all physical evidence seized as a result of a search
of the rental vehicle he had been driving when he was
arrested, and all statements given by Freeman to law
enforcement concerning such evidence. Without first obtaining
a warrant, the Louisiana State Police (“LSP”) had
placed a global positioning system (“GPS”) device
to the frame of the vehicle with a magnet. On January 30,
2012, Freeman filed a supplemental motion to suppress, based
on the then recent United States Supreme Court case,
United States v. Jones, 565 U.S. 400 (2012), wherein
the Court held that the attachment of a GPS device to a
vehicle and the subsequent monitoring of the vehicle's
movements on public streets is a search within the meaning of
the Fourth Amendment. Following hearings on the motion to
suppress and Freeman's subsequent motion to reopen
suppression evidence, the trial court signed a judgment
denying Freeman's motion, without providing any reasons.
jury trial began on March 12, 2014. On March 19, 2014, the
jury found Freeman guilty as charged on all eight counts. On
August 8, 2014, the trial court adjudicated Freeman a third
felony offender and sentenced him to life imprisonment at
hard labor without benefits on each one of Counts One through
Six and Count Eight; and to five years on Count Seven. The
court ordered Counts Two through Six and Count Eight to run
concurrently with each other and with Count Four, which was
to run consecutive to Count One. Freeman, 194 So.3d
filed a direct appeal in the Second Circuit Court of Appeal,
raising two issues: (1) trial court error in denying the
motion to suppress; and (2) insufficient evidence to support
a finding of guilt on the second degree murder charge. On
April 13, 2016, the Second Circuit affirmed Freeman's
convictions and sentences. Id. On May 1, 2017, the
Supreme Court of Louisiana denied Freeman's subsequent
application for writ of certiorari and/or review. State
v. Freeman, 2016-0927 (La. 5/1/17), 220 So.3d 743.
Freeman did not file a petition for certiorari in the United
States Supreme Court, and he did not seek collateral review
in the state courts. [doc. # 1 ¶¶ 9(h), 10].
April 27, 2018, Freeman filed the instant habeas corpus
petition, arguing: (1) his motion to suppress was wrongfully
denied because officers conducted an illegal search when they
placed a GPS tracking device on his vehicle without a
warrant; and (2) the evidence presented at trial was
insufficient to support his conviction of second degree
murder. (Id. ¶ 12). The State filed a response
on July 9, 2018. [doc. # 9]. On July 31, 2018, Freeman filed a
memorandum of law in support of his petition. [doc. # 16].
This matter is ripe.
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;
(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).
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). “[U]nder the
‘unreasonable application' clause, a federal habeas
court may grant the writ if the state court identifies ...