Bruce v. Deville

         SECTION: “F” (3)

          REPORT AND RECOMMENDATION

          DANA M. DOUGLAS, UNITED STATES MAGISTRATE JUDGE

         This matter was referred to this United States Magistrate Judge for the purpose of conducting a hearing, including an evidentiary hearing, if necessary, and submission of proposed findings of fact and recommendations for disposition pursuant to 28 U.S.C. § 636(b)(1)(B) and (C) and, as applicable, Rule 8(b) of the Rules Governing Section 2254 Cases in the United States District Courts. Upon review of the record, the Court has determined that this matter can be disposed of without an evidentiary hearing. See 28 U.S.C. § 2254(e)(2). Therefore, for all of the following reasons, IT IS RECOMMENDED that the petition be DISMISSED WITH PREJUDICE.

         Petitioner, Benjamin Herman Bruce, is a state prisoner incarcerated at the Winn Correctional Center in Winnfield, Louisiana. On October 14, 2010, he was charged in the Parish of Jefferson for aggravated arson in violation of La. Rev. Stat. § 14:51.^[1] On February 10, 2011, the bill of information was amended to include verbiage that the amount of damage was over $500.^[2] On March 23, 2011, after a jury trial, he was convicted as charged.^[3] On April 4, 2011, the trial court sentenced Bruce to a term of imprisonment of fifteen years at hard labor.^[4] The state filed a multiple bill charging Bruce as a fourth felony offender.^[5] On June 2, 2011, the court found Bruce to be a fourth felony offender, vacated the original sentence and sentenced Bruce to a term of life imprisonment.^[6]

         Bruce filed a direct appeal to the Louisiana Fifth Circuit alleging the following claims: (1) the trial court erred in denying a motion to quash the bill of information; and (2) his sentence was excessive.^[7] On October 30, 2012, the Louisiana Fifth Circuit Court of Appeal affirmed his conviction but vacated his sentence as excessive.^[8] On January 17, 2013, the trial court resentenced Bruce to a term of imprisonment of twenty-five years at hard labor.^[9]

         The Louisiana Supreme Court then denied Bruce's related writ application on April 26, 2013 without explanation.^[10] Bruce's conviction became final 90 days later, on July 25, 2013, when he did not file a writ application with the United States Supreme Court.

         On August 12, 2013, Bruce filed an application for post-conviction relief with the state district court in which he raised the following claims for relief: (1) comments made by the prosecutor during opening statement and closing argument amounted to prosecutorial misconduct; (2) ineffective assistance of counsel in failing to object to the comments; and (3) the trial court erred in admitting “other crimes” evidence related to his prior convictions.^[11] The state district court did not address petitioner's prosecutorial misconduct claim, but denied Bruce's application on December 18, 2013, finding he failed to prove any deficiency in his counsels' performance or resulting prejudice and his claim relating to “other crimes” evidence was procedurally barred under La. Code Crim. P. arts. 930.4 (B) and (C).^[12] The Louisiana Fifth Circuit found petitioner's claims of prosecutorial misconduct and improper use of other crimes evidence were procedurally barred, that there was and no error in the trial court's denial of the ineffective assistance of counsel claim and denied his related writ application on April 2, 2014.^[13] The Louisiana Supreme Court denied Bruce's writ application without stated reasons on March 6, 2015.^[14]

         While the foregoing proceedings were still ongoing, Bruce filed a supplemental post-conviction application with the state district court on November 18, 2013, in which he raised the following claims: (1) ineffective assistance of trial and appellate counsel for failing to successfully argue the motion to quash, object to the jury instructions, move for a mistrial or new trial, and raise issues on appeal; (2) sufficiency of the evidence; and (3) prosecutorial misconduct in knowingly pursuing an invalid jury charge, failing to include on direct appeal transcripts of the opening statements, closing arguments, and jury instructions, and in making fraudulent statements in the appellate brief.^[15] The state district court found petitioner's ineffective assistance of counsel claims were speculative and unsupported by any facts, evidence or legal analysis as required by La. Code Crim. P. art.926, his claim of insufficient evidence and prosecutorial misconduct related to jury instructions were procedurally barred, and his remaining claims were not cognizable, and denied the application on May 23, 2014.^[16]

         Because Bruce had been transferred from the Louisiana State Penitentiary, he did not receive the May 23, 2014 order.^[17] On November 6 and 12, 2015, Bruce requested a copy of the May 23, 2014 order.^[18] The state district court sent Bruce a copy of the May 23, 2014 order on November 18, 2015.^[19] Bruce filed a writ application with the Louisiana Fifth Circuit Court of Appeal on March 31, 2016.^[20] On May 4, 2016, the Louisiana Fifth Circuit found that even if Bruce did not receive a copy of the May 23, 2014 state district court order until November 18, 2015, he waited until March 31, 2016 to file his writ application, and therefore refused to the writ application pursuant to Rule 4-3 of the Uniform Rules - Court of Appeals.^[21] On July 25, 2016, Bruce filed a related writ application with the Louisiana Supreme Court.^[22] On November 7, 2016, the Louisiana Supreme Court found the writ application was untimely pursuant to La. S.Ct. Rule X § 5 and declined to consider it.^[23]

         In the interim, on October 20, 2014, Bruce filed a second application for post-conviction relief with the state district court in which he alleged that: (1) the bill of information was defective; (2) the prior convictions used to sentence him as a fourth felony offender were constitutionally infirm; (3) his habitual offender sentence violated double jeopardy; and (5) the multiple bill hearing should have been conducted by a jury.^[24] That application was found to be successive and therefore procedurally barred and denied by the state district court on February 10, 2015.^[25]

         The Louisiana Fifth Circuit Court of Appeal then denied his related writ application on May 28, 2015, finding his first claim procedurally barred and his remaining claims not cognizable.^[26] He thereafter filed a writ application with the Louisiana Supreme Court, which the court denied on May 13, 2016, adopting the reasoning of the state district court.^[27]

         In the meantime, on March 24, 2015, Bruce filed a federal habeas corpus application in which he raised the following claims: (1) ineffective assistance of trial and appellate counsel for failing to (a) object to the prosecution's proposed jury instructions; (b) request a mistrial and file a motion for new trial; (c) successfully argue the motion to quash; (d) object to the jury instructions; (e) submit an adequate appellate brief; and (f) assert three “potentially critical” assignments of error; (2) prosecutorial misconduct by proposing invalid jury instructions, and waiving the inclusion of the transcripts of opening statement, closing argument, and jury instructions in appellate record on direct appeal.^[28] The state filed an answer conceding that the application was timely but arguing that it should nevertheless be dismissed because petitioner failed to exhaust his remedies in the state courts. On August 24, 2015, this Court recommended Bruce's petition be dismissed without prejudice.^[29] On October 21, 2015, the District Court adopted the report and recommendation and dismissed the case without prejudice.^[30] Bruce appealed and the Fifth Circuit Court of Appeals dismissed the appeal on January 5, 2016 for want of prosecution due to failure to pay the filing fee.^[31]

         Following the Louisiana Supreme Court's May 13, 2016 denial of relief relating to his October 20, 2014 application for post-conviction relief, Bruce filed a “Response and Answer in Compliance to Louisiana Supreme Court Judgment” on May 25, 2016.^[32] The state district court denied the motion as successive on June 2, 2016.^[33] On August 16, 2016, the Louisiana Fifth Circuit denied Bruce's related writ application.^[34] On January 12, 2018, the Louisiana Supreme Court denied Bruce's related writ application finding he had previously exhausted his right to state collateral review.^[35]

         Bruce next filed a motion for correction of illegal sentence on January 27, 2017, which the state district court denied on January 31, 2017.^[36] On April 3, 2017, the Louisiana Fifth Circuit denied the related writ application. On January 12, 2018, the Louisiana Supreme Court also denied relief.^[37]

         On May 16, 2018, Bruce filed the instant federal application seeking habeas corpus relief alleging the following claims: (1) his conviction is unconstitutional due to improper admission of evidence unrelated to the case and submission of an altered verdict form and jury instructions on direct appeal; (2) ineffective assistance of counsel for allowing the state to “whitewash” the trial and for failing to submit a responsive appellate brief; (3) prosecutorial misconduct by filing an invalid bill of information, presenting perjured testimony, introducing unrelated crime scene photographs, and submitting altered jury instructions and verdict form on appeal; and (4) he was sentenced as an habitual offender sentence in violation of double jeopardy.^[38]

         The state challenges the timeliness of petitioner's application. The state alternatively argues that Bruce failed to exhaust some of his claims and his remaining claims are procedurally barred.^[39] Bruce filed a reply.^[40]

         The Court is compelled to note that the state's calculation is wrought with legal and factual errors. For the reasons set forth below, the Court rejects the state's timeliness argument and proceeds to a review of the claims.

         Timeliness

         The Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”) generally requires that a petitioner bring his Section 2254 claims within one (1) year of the date on which his underlying criminal judgment becomes “final.” 28 U.S.C. § 2244(d)(1)(A).^[41] On that point, the United States Fifth Circuit Court of Appeals has explained:

The statute of limitations for bringing a federal habeas petition challenging a state conviction begins to run on “the date on which the [state] judgment became final by the conclusion of direct review or the expiration of the time for seeking such review.” 28 U.S.C. § 2244(d)(1)(A). When a habeas petitioner has pursued relief on direct appeal through his state's highest court, his conviction becomes final ninety days after the highest court's judgment is entered, upon the expiration of time for filing an application for writ of certiorari with the United States Supreme Court. Roberts v. Cockrell, 319 F.3d 690, 693 (5th Cir. 2003).

Butler v. Cain, 533 F.3d 314, 317 (5th Cir. 2008).

         Here, the Louisiana Supreme Court denied petitioner's direct-review writ application on April 26, 2013. Accordingly, his state criminal judgment became final for AEDPA purposes, and his federal limitations period therefore commenced, on July 25, 2013, when his period expired for seeking review by the United States Supreme Court. His limitations period then expired one year later on July 25, 2014, unless that deadline was extended through tolling.

         The Court first considers statutory tolling. Regarding the statute of limitations, the AEDPA expressly provides: “The time during which a properly filed application for State post-conviction or other collateral review with respect to the pertinent judgment or claim is pending shall not be counted toward any period of limitation under this subsection.” 28 U.S.C. § 2244(d)(2) (emphasis added).

         For a post-conviction application to be considered “properly filed” within the meaning of Section 2244(d)(2), the applicant must “ ‘conform with a state's applicable procedural filing requirements,' ” such as timeliness and location of filing. Pace v. DiGuglielmo, 544 U.S. 408, 414 (2005) (“When a postconviction application is untimely under state law, ‘that [is] the end of the matter' for purposes of § 2244(d)(2)”); Williams v. Cain, 217 F.3d 303, 306-307 n. 4 (5th Cir. 2000) (quoting Villegas v. Johnson, 184 F.3d 467, 469 (5th Cir. 1999)); Smith v. Ward, 209 F.3d 383, 384-85 (5th Cir. 2000). The timeliness consideration in Louisiana, for purposes of the AEDPA, requires application of a prison mailbox rule to state pleadings filed by a prisoner. Causey v. Cain, 450 F.3d 601, 604-05 (5th Cir. 2006).

         A matter is “pending” for Section 2244(d)(2) purposes “as long as the ordinary state collateral review process is ‘in continuance.' ” Carey v. Saffold, 536 U.S. 214, 219-20 (2002); Williams, 217 F.3d at 310 (a matter is “pending” for Section 2244(d)(2) purposes until “ ‘further appellate review [is] unavailable under [Louisiana's] procedures.' ”).

         The phrase “other collateral review” in the statute refers to state court proceedings challenging the pertinent judgment subsequently challenged in the federal habeas petition. Dilworth v. Johnson, 215 F.3d 497, 501 (5th Cir. 2000) (state habeas petition challenging a prior conviction in one county was other collateral review even though filed as a challenge to a second conviction in a different county). A “pertinent judgment or claim” requires that the state filings for which tolling is sought must have challenged the same conviction being challenged in the federal habeas corpus petition and must have addressed the same substantive claims now being raised in the federal habeas corpus petition. Godfrey v. Dretke, 396 F.3d 681, 686-88 (5th Cir. 2005).

         In Bruce's case, after 18 days, petitioner tolled his federal limitations period by filing a post-conviction application with the state district court on August 12, 2013. Tolling then continued uninterrupted for the duration of that post-conviction proceeding, so long as he sought supervisory review in a timely manner. Grillette v. Warden, Winn Correctional Center, 372 F.3d 765, 769-71 (5th Cir. 2004). Here, the state concedes that petitioner's writ application to the Louisiana Fifth Circuit relating to his first application for post-conviction relief was timely and that tolling continued until the court denied the writ application on April 2, 2014. Bruce had 30 days thereafter, until May 2, 2014, to file his writ application with the Louisiana Supreme Court. See La. S.Ct. Rule X§ 5. Bruce, however, did not file his writ application until May 5, 2014.^[42]That writ application therefore was not timely filed under La. S.Ct. Rule X§ 5 and, under federal law, cannot be considered in the AEDPA's finality or limitations calculation. See Butler, 533 F.3d at 317, 319 (La. S.Ct. R. X§ 5(a) forbids any extension of time); Williams, 217 F.3d at 309-11 (same).

         That said, petitioner's federal limitations period did not resume running on May 3, 2014, because he was entitled to an overlapping period of tolling. Specifically, Bruce filed his supplemental application for post-conviction relief on November 18, 2013 and the state district court denied that application on May 23, 2014.^[43] Bruce had until June 23, 2014 to file a writ application with the Louisiana Fifth Circuit.^[44] See Louisiana Uniform Rules of the Courts of Appeal Rule 4-3; see also Melancon v. Kaylo, 259 F.3d 401, 404-06 (5th Cir. 2001); Campbell v. Cain, Civ. Action No. 06-3983, 2007 WL 2363149, at *3 & n.24 (E.D. La. Aug. 15, 2007). Bruce did not file his writ application with the Louisiana Fifth Circuit until March 31, 2016, and the Louisiana Fifth Circuit found it untimely on May 4, 2016.

         The United States Supreme Court has conclusively held that “time limits, no matter their form, are ‘filing' conditions”; when the state courts have rejected a state application as untimely, it cannot be considered “properly filed” so as to entitle the petitioner to statutory tolling. Pace, 544 U.S. 408 at 417. Simply put: “When a postconviction petition is untimely under state law, that is the end of the matter for purposes of § 2244(d)(2).” Id. at 414 (internal quotation marks and brackets omitted). Because the Louisiana Fifth Circuit Court of Appeal expressly found that the writ application relating to the denial of his supplemental application for post-conviction relief was untimely and refused to consider it on that basis, petitioner receives no tolling credit whatsoever for that application. Villafranco v. Goodwin, Civ. Action No. 14-2329, 2015 WL 1525950, at *3 (E.D. La. Apr. 2, 2015); accord Williams v. Cain, 217 F.3d 303 (5th Cir. 2000); Joseph v. Vannoy, Civ. Action No. 16-0546, 2016 WL 4433640, at *4 (E.D. La. June 10, 2016), adopted, 2016 WL 4419004 (E.D. La. Sept. 19, 2016); Campbell v. Cain, Civ. Action No. 06- 3983, 2007 WL 2363149, at *3 (E.D. La. Aug. 15, 2007).^[45] As result, tolling then ended on June 23, 2014, when his period expired for seeking review by the Louisiana Fifth Circuit Court of Appeal. See Grillette, 372 F.3d at 769-71.

         The time therefore began running again on June 24, 2014 and ran for another 118 days until October 20, 2014 when Bruce filed his second application for post-conviction relief.^[46] The state court denied the application for post-conviction relief on February 10, 2015.^[47] The state argues that Bruce's related writ application to the Louisiana Fifth Circuit was not timely filed and therefore the time began to run for another 46 days.^[48] However, the record reflects that, due to Bruce's late receipt of the order denying post-conviction relief, the state district court set a return date for June 19, 2015.^[49] Bruce filed his writ application with the Louisiana Fifth Circuit on April 27, 2015.^[50] The time therefore continued to be statutorily tolled through May 13, 2016, when the Louisiana Supreme Court denied relief.^[51]

         The time began to run again on May 14, 2016 and ran for another 11 days until May 25, 2016 when Bruce filed his “Response and Answer in Compliance to the Louisiana Supreme Court Judgment” which was construed as a successive application for post-conviction relief.^[52] The time continued to be statutorily tolled through January 12, 2018 when the Louisiana Supreme Court denied relief.^[53]

         When Bruce's federal limitations period finally began running again on January 13, 2018, 147 days had passed and he had 218 days remaining. Therefore, he had until Monday, August 20, 2018^[54], either to file his federal application or to again toll the limitations period. Because Bruce filed the instant petition on May 16, 2018, the undersigned finds that was timely filed and will therefore address the merits of petitioner's claims.

         Standards of Review

         The Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”) comprehensively overhauled federal habeas corpus legislation, including 28 U.S.C. § 2254. Amended subsections 2254(d)(1) and (2) contain revised standards of review for pure questions of fact, pure questions of law, and mixed questions of both. The amendments “modified a federal habeas court's role in reviewing state prisoner applications in order to prevent federal habeas ‘retrials' and to ensure that state-court convictions are given effect to the extent possible under law.” Bell v. Cone, 535 U.S. 685, 693 (2002).

         As to pure questions of fact, factual findings are presumed to be correct and a federal court will give deference to the state court's decision unless it “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)(2); see also 28 U.S.C. § 2254(e)(1) (“In a proceeding instituted by an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State court, a determination of a factual issue made by a State court shall be presumed to be correct. The applicant shall have the burden of rebutting the presumption of correctness by clear and convincing evidence.”).

         As to pure questions of law and mixed questions of law and fact, a federal court must defer to the state court's decision on the merits of such a claim unless that decision “was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States.” 28 U.S.C. § 2254(d)(1). Courts have held that the “‘contrary to' and ‘unreasonable application' clauses [of § 2254(d)(1)] have independent meaning.” Bell, 535 U.S. at 694.

         Regarding the “contrary to” clause, the United States Fifth Circuit Court of Appeals has explained:

A state court decision is contrary to clearly established precedent if the state court applies a rule that contradicts the governing law set forth in the [United States] Supreme Court's cases. A state-court decision will also be contrary to clearly established precedent if the state court confronts a set of facts that are materially indistinguishable from a decision of the [United States] Supreme Court and nevertheless arrives at a result different from [United States] Supreme Court precedent.

Wooten v. Thaler, 598 F.3d 215, 218 (5th Cir. 2010) (internal quotation marks, ellipses, brackets, and footnotes omitted).

         Regarding the “unreasonable application” clause, the United States Supreme Court has held: “[A] state-court decision is an unreasonable application of our clearly established precedent if it correctly identifies the governing legal rule but applies that rule unreasonably to the facts of a particular prisoner's case.” White v. Woodall, 530 U.S., 134 S.Ct. 1697, 1706 (2014). However, the Supreme Court cautioned:

Section 2254(d)(1) provides a remedy for instances in which a state court unreasonably applies this Court's precedent; it does not require state courts to extend that precedent or license federal courts to treat the failure to do so as error. Thus, if a habeas court must extend a rationale before it can apply to the facts at hand, then by definition the rationale was not clearly established at the time of the state-court decision. AEDPA's carefully constructed framework would be undermined if habeas courts introduced rules not clearly established under the guise of extensions to existing law.

Id. (citations and quotation marks omitted). Therefore, when the Supreme Court's “cases give no clear answer to the question presented, let alone one in [the petitioner's] favor, it cannot be said that the state court unreasonably applied clearly established Federal law.” Wright v. Van Patten, 552 U.S. 120, 126 (2008) (quotation marks and brackets omitted). The Supreme Court has also expressly cautioned that “an unreasonable application is different from an incorrect one.” Bell, 535 U.S. at 694. Accordingly, a state court's merely incorrect application of Supreme Court precedent simply does not warrant habeas relief. Puckett v. Epps, 641 F.3d 657, 663 (5th Cir. 2011) (“Importantly, ‘unreasonable' is not the same as ‘erroneous' or ‘incorrect'; an incorrect application of the law by a state court will nonetheless be affirmed if it is not simultaneously unreasonable.”).

         While the AEDPA standards of review are strict and narrow, they are purposely so. As the United States Supreme Court has held:

[E]ven a strong case for relief does not mean the state court's contrary conclusion was unreasonable.

If this standard is difficult to meet, that is because it was meant to be. As amended by AEDPA, § 2254(d) stops short of imposing a complete bar on federal court relitigation of claims already rejected in state proceedings. It preserves authority to issue the writ in cases where there is no possibility fairminded jurists could disagree that the state court's decision conflicts with this Court's precedents. It goes no farther. Section 2254(d) reflects the view that habeas corpus is a guard against extreme malfunctions in the state criminal justice systems, not a substitute for ordinary error correction through appeal. 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, 102-03 (2011) (citations omitted; emphasis added); see also Renico v. Lett, 559 U.S. 766, 779 (2010) (“AEDPA prevents defendants - and federal courts - from using federal habeas corpus review as a vehicle to second-guess the reasonable decisions of state courts.”).

         The Supreme Court has expressly warned that although “some federal judges find [28 U.S.C. § 2254(d)] too confining, ” it is nevertheless clear that “all federal judges must obey” the law and apply the strictly deferential standards of review mandated therein. White v. Woodall, 134 S.Ct. 1697, 1701 (2014).

         Facts

         On direct appeal, the Louisiana Fifth Circuit Court of Appeal summarized the facts of this case as follows:

Ms. Pinkey Miles resided in a trailer located at 623 Richard Avenue in River Ridge, Louisiana, with her sixty-five year-old mother, Barbara Brown, and her seventeen year-old son, Kendrick Miles. On the afternoon of August 26, 2010, Ms. Miles played a game of cards and had a few drinks with neighbors. Ms. Miles testified that her ex-boyfriend, defendant, later arrived to play and that she asked him to return ten dollars she had previously loaned him. When defendant refused to pay the ten dollars, Ms. Miles punched defendant in the face and left.¹ Ms. Miles eventually returned home and, sometime after midnight, Ms. Miles, her mother and her son fell asleep.

¹Defendant, in his statement to investigating authorities, stated that Ms. Miles used “brass knuckles” when she hit him. One neighbor, Ms. Jatawn Kinzey, further testified that Ms. Miles showed up with two teenage boys “punching their hands” in front of defendant. However, Ms. Miles and another neighbor-witness, Ms. Lathers, testified that Ms. Miles had rings on her fingers but did not use any weapons when she struck defendant.

A few hours later, two unknown individuals broke down the gate outside of Ms. Miles' trailer, pushed a window air conditioning unit through the window, and yelled into the trailer, “Ya'll house is on fire. Ya'll house is on fire.” Ms. Miles ran out of the trailer and extinguished the fire while her son, Kendrick, helped his grandmother, Ms. Brown, exit the trailer safely.

At trial, Ms. Danielle Lathers, a neighbor-witness, testified that she observed defendant and Ms. Miles in a heated dispute on the evening of August 26, 2010, regarding an unpaid debt and witnessed Ms. Miles strike defendant in the face. Ms. Lathers further testified that she and her boyfriend, while sitting on her porch at approximately 3:30 a.m., noticed defendant's pick-up truck traveling down the road to Ms. Miles' trailer. Ms. Lathers and her boyfriend walked to the corner and noticed defendant exit the truck with something in his hand. Ms. Lathers testified that defendant walked to Ms. Miles' trailer and then walked back to his truck. A few minutes later, she noticed smoke coming from the trailer. Ms. Lathers did not contact police regarding the incident; she testified that defendant's actions involving Ms. Miles' trailer is not her “business.” Ms. Lathers further stated that she did not walk to Ms. Miles' trailer that evening to inform her of the smoke but instead retired to her home for the evening.

Investigator Thomas Lowe of the Jefferson Parish Fire Department, an expert in the field of fire origin and cause, testified that he arrived at the scene and determined that the fire began in the garden area and was ignited with an accelerant, gasoline.² Mr. Lowe further testified that the fire spread in a V-pattern from the garden area, “up to the top of the trailer.”

²Detective Lowe obtained a soil sample from the garden area, which lab tests revealed contained gasoline. The parties further stipulated to the testimony of Thomas Angelico, an expert in the field of fire debris, who examined the soil sample and confirmed the presence of gasoline.

Deputy Latasha Thomas of the Jefferson Parish Sheriff's Office also reported to the scene. Ms. Miles told Deputy Thomas that she suspected her ex-boyfriend (defendant) could be responsible for the fire. Detective Steven Abadie of the Jefferson Parish Sheriff's Office later arrived and learned from Ms. Miles of a potential neighbor-witness, Ms. Lathers. Detective Abadie met with Ms. Lathers, who identified defendant by photograph as the perpetrator. Detective Abadie took Ms. Lathers' recorded statement. Having obtained defendant's address from Ms. Lathers, Detective Abadie proceeded to defendant's residence and arrested him for the aggravated arson of Ms. Miles' trailer.

Detective Abadie testified that he advised defendant of his rights and transported him to the police station, where defendant gave a recorded statement. In his statement, defendant told Detective Abadie that on the afternoon of August 26, 2010, Ms. Miles struck him in the face with a pair of brass knuckles over an unpaid debt of ten dollars. Defendant then admitted that in the early morning hours of August 27, 2010, he became intoxicated, poured gasoline on the flower bed in front of Ms. Miles' trailer, and set it afire.55

         Petitioner's Claims56 Prosecutorial Misconduct/Unconstitutional Conviction

         Bruce claims prosecutorial misconduct as a result of issuing an invalid bill of information, presenting perjured testimony from a convicted felon, introducing into evidence unrelated crime scene photographs, and submitting altered jury instructions and verdict form on appeal. In a separately enumerated but overlapping claim, he contends that his conviction is unconstitutional due to the admission into evidence of the unrelated crime scene photographs and the prosecution's submission on appeal of altered jury instructions and the verdict form.

         The record reflects that Bruce never raised claims of prosecutorial misconduct based on perjured testimony or an invalid bill of information to any of the state courts. While he did not raise these issues in his first application for post-conviction relief, he raised the issue of prosecutorial misconduct based on admission of a photograph from an unrelated crime scene and the filing of altered jury instructions and verdict form on appeal in his related writ application to the Louisiana Supreme Court.^[57] In his second application for post-conviction relief, while not enumerating it as a separate claim, he referenced the prosecution's use at trial of a photograph that was unrelated to the case.^[58] Thus, it does not appear that any of the prosecutorial misconduct claims have been exhausted. Nevertheless, it is clear that a federal court has the authority to deny habeas claims on the merits regardless of whether the petitioner exhausted his state court remedies and whether exhaustion is waived by the state. 28 U.S.C. § 2254(b)(2); Jones v. Jones, 163 F.3d 285, 299 (5th Cir. 1998); Woods v. Cain, Civ. Action No. 06-2032, 2008 WL 2067002, at *8 n. 8 (E.D. La. May 13, 2008).

         Federal courts apply “a two-step analysis to charges of prosecutorial misconduct.” United States v. Duffaut, 314 F.3d 203, 210 (5th Cir. 2002). A court first decides whether the prosecutor's actions were improper and, if so, the court then determines whether the actions “prejudiced the defendant's substantive rights.” Id. With respect to that latter determination, the court asks whether the prosecutor's actions “so infected the trial with unfairness as to make the resulting conviction a denial of due process.” Darden v. Wainwright, 477 U.S. 168, 181 (1986). “A trial is fundamentally unfair if there is a reasonable probability that the verdict might have been different had the trial been properly conducted.” Foy v. Donnelly, 959 F.2d 1307, 1317 (5th Cir. 1992) (internal quotation marks ...