United States District Court, E.D. Louisiana
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 ...