United States District Court, E.D. Louisiana
REPORT AND RECOMMENDATION
C. WILKINSON, JR. UNITED STATES MAGISTRATE JUDGE.
matter was referred to a United States Magistrate Judge to
conduct hearings, including an evidentiary hearing, if
necessary, and to submit proposed findings 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. Upon review
of the entire record, I have determined that a federal
evidentiary hearing is unnecessary. See 28 U.S.C.
§ 2254(e)(2). For the following reasons, I recommend
that the instant petition for habeas corpus relief be
DENIED and DISMISSED WITH PREJUDICE.
petitioner, Perry Jackson, is a convicted inmate currently
incarcerated in the Elayn Hunt Correctional Center in St.
Gabriel, Louisiana. On September 24, 2015, Jackson was charged
by bill of information in Orleans Parish with failure to
register as a sex offender. The charge arose from
Jackson's 1994 conviction in Orleans Parish No. 371-460
for the forcible rape of “his common law
wife.” The following partial history of
Jackson's incarceration and conviction history from 1994
to 2001 provides relevant background:
On September 22, 1994, Petitioner was convicted and sentenced
in Orleans Parish in criminal actions 371-460 and 371-184 to
five (5) years incarceration. Petitioner was released from
prison on December 14, 1996, and placed on good time parole
supervision for thirty (30) months. On January 17, 1997,
Petitioner was arrested in Jefferson Parish, and his parole
was revoked. He served fifteen (15) months in prison and was
released on April 18, 1998 to good time parole supervision to
complete the remaining fifteen (15) months on his original
Petitioner was arrested again on October 18, 1998 and charged
with parole violation [and with possession of cocaine in No.
402-422]. He has apparently remained in custody from that
time until now. On November 23, 1999, Petitioner was
sentenced in criminal action 402-422 to serve five (5) years
at hard labor in the custody of the Department of
Corrections. He was granted credit for time served in
custody, and his sentence was ordered to run concurrently
with the sentence in criminal actions 371-460 and 371-184. On
January 18, 2000, Petitioner completed the sentences in
criminal actions 371-460 and 371-184. He still remains in
custody on the sentence imposed in criminal action 402-422.
Jackson v. Warden, Allen Correctional Center, Civ.
Action 00-2542, Report and Recommendation, Record Document
No. 19, pp. 1-2 (W.D. La. Mar. 8, 2001), adopted,
Judgment, Rec. Doc. No. 23 (W.D. La. April 16, 2001). Perry
remained incarcerated for the drug conviction in No. 402-422
in 2002. Jackson v. Andrews, 31 Fed.Appx. 833 (5th
bill of information in this case alleges that Jackson was
convicted in 2014 upon his guilty plea in Harris County,
Texas, for failure to register as a sex offender based on the
1994 Louisiana conviction for forcible rape, and he served a
three year sentence on that charge. Jackson v.
Stephens, No. 14-2548, 2014 WL 4988198, at *1 (S.D. Tex.
Oct. 6, 2014). In that federal habeas case, Jackson
established that he was charged in Harris County on June 18,
2012, and ultimately indicted by a grand jury on June 29,
2012 for failure to register, although he remained at
large. He later was arrested in another county on
unrelated drug charges on July 29, 2013.
January 31, 2014, he was transferred to Harris County and
pleaded guilty to the failure to register charge on March 14,
2014. According to Jackson's pleadings in
the Southern District of Texas case, his Harris County
conviction resulted in the requirement that he register as a
sex offender for life. These allegations are consistent with the
information charged in the bill of information in the
underlying Louisiana criminal case at issue in this habeas
October 28, 2015, Jackson withdrew his former plea of not
guilty and pleaded guilty before the Orleans Parish Criminal
District Court to the charge of failure to register as a sex
offender. At the same hearing, Jackson also pleaded
guilty to the State's multiple offender bill charging him
as a second felony offender based on his 1999 possession of
cocaine conviction. The state trial court sentenced Jackson
as a second felony offender to five years in prison at hard
conviction and sentence became final 30 days later, on
Monday, November 30, 2015,  when he did not seek
reconsideration of the sentence or pursue a direct appeal.
Roberts v. Cockrell, 319 F.3d 690, 694-95 (5th Cir.
2003) (under federal habeas law, a conviction is final when
the state defendant does not timely proceed to the next
available step in the state appeal process); see Cousin
v. Lensing, 310 F.3d 843, 845 (5th Cir. 2002)
(petitioner's guilty pleas became final at the end of the
period for filing a notice of appeal under La. Code Crim. P.
March 28, 2016, Jackson signed and submitted to the state
trial court an application for post-conviction relief in
which he asserted the following claims: (1) He
received ineffective assistance of counsel when counsel (a)
failed to conduct adequate discovery and investigation into
the prior conviction and the validity of any registration
requirement imposed upon him or for which he was being
prosecuted, (b) failed to inform him of who was accusing him
of being a danger to the community, (c) failed to inform him
of the details of the right to jury trial before advising him
to plead guilty, (d) failed to provide him with a copy of or
review with him the multiple bill before advising him to
plead guilty, (e) committed perjury by signing the waiver of
rights forms indicating that she fully advised petitioner of
his rights before he pleaded guilty to the charge and the
multiple bill, and (f) told petitioner that if he complained
about her representation, she would assure that the plea deal
was revoked. (2) The state trial court failed to advise him
of the allegations and evidence against him in the multiple
bill before accepting his guilty plea.
6, 2016, the state trial court denied the application holding
that Jackson failed to establish either requirement of
Strickland v. Washington, 466 U.S. 668 (1984), made
applicable to counsel's performance during a guilty plea
in Hill v. Lockhardt, 474 U.S. 52, 58
October 14, 2016, the Louisiana Fourth Circuit denied
Jackson's related writ application, finding no error in
the state trial court's ruling. On April 27, 2018, the
Louisiana Supreme Court denied Jackson's writ application
finding his ineffective assistance of counsel claims
meritless under Strickland, and that he failed to
satisfy his burden of proof as to the remaining
FEDERAL HABEAS PETITION
11, 2018, the clerk of this court filed Jackson's
petition for federal habeas corpus relief in which he asserts
the following grounds for relief: (1) The denial of relief
on his ineffective assistance of counsel claims by the state
courts was contrary to Strickland because his
counsel (a) failed to conduct adequate discovery and
investigation into the prior conviction and the validity of
any registration requirement imposed upon him or for which he
was being prosecuted, (b) failed to inform him who was
accusing him of being a danger to the community, (c) failed
to inform him of the details of the right to jury trial
before advising him to plead guilty, (d) failed to provide
him with a copy of or review with him the multiple bill
before advising him to plead guilty, (e) committed perjury by
signing the waiver of rights forms indicating that she fully
advised petitioner of his rights before he pleaded guilty to
the charge and the multiple bill, and (f) told petitioner
that if he complained about her representation she would
assure that the plea deal was revoked. (2) The state courts
failed to recognize that his multiple offender adjudication
was unconstitutional, because the state trial court failed to
advise him of the allegations and evidence against him before
accepting the plea of guilty to the multiple offender bill.
State filed a response in opposition to Jackson's federal
petition asserting that his ineffective assistance of counsel
claim was meritless under Strickland, and his second
claim is not cognizable on federal habeas
review. In his reply to the State's
opposition, Jackson alleges that he is entitled to assert his
second claim that his due process rights were violated during
the multiple offender hearing, and he reiterates his
arguments related to ineffective assistance of counsel,
noting that his counsel failed to recognize and argue at the
plea hearing that the law in place in 1996 only required that
he register for ten years, which expired in 2006 and could
not form the basis of the prosecution.
GENERAL STANDARDS OF REVIEW
Antiterrorism and Effective Death Penalty Act of 1996
(“AEDPA”), Pub. L. No. 104-132, 110 Stat. 1214,
comprehensively revised federal habeas corpus legislation,
including 28 U.S.C. § 2254. The AEDPA went into effect
on April 24, 1996 and applies to habeas petitions filed
after that date. Flanagan v. Johnson, 154 F.3d 196,
198 (5th Cir. 1998) (citing Lindh v. Murphy, 521
U.S. 320 (1997)). The AEDPA therefore applies to
Jackson's petition, which, for reasons discussed below,
is deemed filed on May 8, 2018. The threshold questions
in habeas review under the amended statute are whether the
petition is timely and whether petitioner's claims were
adjudicated on the merits in state court; i.e., the
petitioner must have exhausted state court remedies and must
not be in “procedural default” on a claim.
Nobles v. Johnson, 127 F.3d 409, 419-20 (5th Cir.
1997) (citing 28 U.S.C. § 2254(b), (c)).
State concedes, and the record shows, that Jackson's
petition is timely filed, review of his claims was exhausted
and no claim is in procedural default. However, Jackson's
petition must be denied and dismissed with prejudice because
his claims are meritless.
STANDARDS OF A MERITS REVIEW
U.S.C. §§ 2254(d)(1) and (2) contain revised
standards of review for questions of fact, questions of law
and mixed questions of fact and law in federal habeas corpus
proceedings. Nobles, 127 F.3d at 419-20 (citing 28
U.S.C. § 2254(b) and (c)).
of questions of fact by the state court are “presumed
to be correct . . . and we 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.'”
Hill v. Johnson, 210 F.3d 481, 485 (5th Cir. 2000)
(quoting 28 U.S.C. § 2254(d)(2)). The amended statute
also codifies the “presumption of correctness”
that attaches to state court findings of fact and the
“clear and convincing evidence” burden placed on
a petitioner who attempts to overcome that presumption. 28
U.S.C. § 2254(e)(1).
court's determination of questions of law and mixed
questions of law and fact are reviewed under 28 U.S.C. §
2254(d)(1) and receive deference, unless the state
court's decision “‘was contrary to, or
involved an unreasonable application of, clearly established
[Supreme Court precedent.]'” Penry v.
Johnson, 215 F.3d 504, 507 (5th Cir. 2000) (quoting
Miller v. Johnson, 200 F.3d 274, 280-81 (5th Cir.
2000)), aff'd in part, rev'd in part on
other grounds, 532 U.S. 782 (2001) (brackets in
original); Hill, 210 F.3d at 485. The United States
Supreme Court has clarified the Section 2254(d)(1) standard
Under the “contrary to” clause, a federal habeas
court may grant the writ if the state court arrives at a
conclusion opposite to that reached by this Court on a
question of law or if the state court decides a case
differently than this Court has on a set of materially
indistinguishable facts. Under the “unreasonable
application” clause, a federal habeas court may grant
the writ if the state court identifies the correct governing
legal principle from this Court's decisions but
unreasonably applies that principle to the facts of the
Williams v. Taylor, 529 U.S. 362, 412-13 (2000);
Penry, 532 U.S. 782, 792-93 (2001) (citing
Williams, 529 U.S. at 405-06, 407-08);
Hill, 210 F.3d at 485. The “critical
point” in determining the Supreme Court rule to be
applied “is that relief is available under §
2254(d)(1)'s unreasonable-application clause if, and only
if, it is so obvious that a clearly established rule applies
to a given set of facts that there could be no
‘fairminded disagreement' on the question.”
White v. Woodall, 572 U.S. 415, 427 (2014) (citing
Harrington v. Richter, 562 U.S. 86, 103 (2011);
Knowles v. Mirzayance, 556 U.S. 111, 122 (2009)).
“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.'”
Id. at 426 (quoting Yarborough v. Alvarado,
541 U.S. 652, 666 (2004)).
federal habeas court may not issue the writ simply because
that court concludes in its independent judgment that the
state-court decision applied [a Supreme Court case]
incorrectly.'” Price v. Vincent, 538 U.S.
634, 641 (2003) (quoting Woodford v. Visciotti, 537
U.S. 19, 24-25 (2002)) (citations omitted; brackets in
original). Rather, under the “unreasonable
application” standard, “the only question for a
federal habeas court is whether the state court's
determination is objectively unreasonable.” Neal v.
Puckett, 286 F.3d 230, 246 (5th Cir. 2002). The burden
is on the petitioner to show that the state court applied the
precedent to the facts of his case in an objectively
unreasonable manner. Price, 538 U.S. at 641 (quoting
Woodford, 537 U.S. at 24-25); Wright v.
Quarterman, 470 F.3d 581, 585 (5th Cir. 2006).
EFFECTIVE ASSISTANCE OF COUNSEL (CLAIM ONE)
alleges that he received ineffective assistance of counsel
because his counsel (a) failed to conduct adequate discovery
and investigation into the prior conviction and the validity
of any registration requirement imposed upon him or for which
he was being prosecuted; (b) failed to inform him who was
accusing him of being a danger to the community; (c) failed
to inform him of the details of the right to jury trial
before advising him to plead guilty; (d) failed to provide
him with a copy of or review with him the multiple bill
before advising him to plead guilty; (e) committed perjury by
signing waiver of rights forms indicating that she fully
advised petitioner of his rights before he pleaded guilty to
the charge and the multiple bill; and (f) told him that if he
complained about her representation she would assure that the
plea deal was revoked. On post-conviction review, the state
courts denied relief on these claims under
applies to the performance of counsel when a defendant enters
a guilty plea. Hill, 474 U.S. at 58. In
Strickland, the Supreme Court established a two-part
test for evaluating claims of ineffective assistance of
counsel, requiring petitioner to prove both deficient
performance and resulting prejudice. Strickland, 466
U.S. at 697. The Supreme Court first held that “the
defendant must show that counsel's representation fell
below an objective standard of reasonableness.”
Id. at 687-88; Hill, 474 U.S. at 57.
Second, “[t]he defendant must show that there is a
reasonable probability that, but for counsel's
unprofessional errors, the result of the proceeding would
have been different.” Id. at 694; United
States v. Kimler, 167 F.3d 889, 893 (5th Cir. 1999). In
the context of a guilty plea, “[i]n order to satisfy .
. . [Strickland's] ‘prejudice'
requirement, the defendant must show that there is a
reasonable probability that, but for counsel's errors, he
would not have pleaded guilty and would have insisted on
going to trial.” Hill, 474 U.S. at 59.
deciding ineffective assistance of counsel claims, this court
need not address both prongs of the conjunctive
Strickland standard, but may dispose of such a claim
based solely on a petitioner's failure to meet either
prong of the test. Kimler, 167 F.3d at 893. A habeas
corpus petitioner “need not show that
‘counsel's deficient conduct more likely than not
altered the outcome in the case.' . . . But it is not
enough under Strickland, ‘that the errors had
some conceivable effect on the outcome of the
proceeding.'” (citation omitted) Motley v.
Collins, 18 F.3d 1223, 1226 (5th Cir. 1994) (quoting
Strickland, 466 U.S. at 693); Harrington,
562 U.S. at 112 (Strickland requires a
“substantial” likelihood of a different result,
not just “conceivable” one.)
habeas review, the United States Supreme Court has recently
clarified that, under Strickland, “[t]he
question is whether an attorney's representation amounted
to incompetence under prevailing professional norms, not
whether it deviated from best practices or most common
custom.” Harrington, 562 U.S. at 105. The
Harrington Court went on to recognize the high level
of deference owed to a state court's findings under
Strickland in light of the AEDPA:
The standards created by Strickland and §
2254(d) are both “highly deferential, ” and when
the two apply in tandem, review is doubly so. The
Strickland standard is a general one, so the range
of reasonable applications is substantial. Federal habeas
courts must guard against the danger of equating
unreasonableness under Strickland with
unreasonableness under § 2254(d). When § 2254(d)
applies, the question is not whether counsel's actions
were reasonable. The question is whether there is any
reasonable argument that counsel satisfied
Strickland's deferential standard.
Harrington, 562 U.S. at 105.
scrutiny of counsel's performance under § 2254(d) is
“doubly deferential.” Cullen v.
Pinholster, 563 U.S. 170, 190 (2011) (quoting
Knowles, 556 U.S. at 123). This court must therefore
apply the “strong presumption” that counsel's
strategy and defense tactics fall “within the wide
range of reasonable professional assistance.”
Strickland, 466 U.S. at 690.
habeas courts presume that litigation strategy is objectively
reasonable unless clearly proven otherwise by the petitioner.
Id., 466 U.S. at 689; Geiger v. Cain, 540
F.3d 303, 309 (5th Cir. 2008); Moore v. Johnson, 194
F.3d 586, 591 (5th Cir. 1999). In assessing counsel's
performance, a federal habeas court must make every effort to
eliminate the distorting effects of hindsight, to reconstruct
the circumstances of counsel's challenged conduct, and to
evaluate the conduct from counsel's perspective at the
time of trial. Strickland, 466 U.S. at 689;
Neal, 286 F.3d at 236-37; Clark v. Johnson,
227 F.3d 273, 282-83 (5th Cir. 2000), cert. denied,
531 U.S. 1167 (2001). Tactical decisions when supported by
the circumstances are objectively reasonable and do not
amount to unconstitutionally deficient performance. Lamb
v. Johnson, 179 F.3d 352, 358 (5th Cir. 1999), cert.
denied, 528 U.S. 1013 (1999) (citing Rector v.
Johnson, 120 F.3d 551, 564 (5th Cir. 1997) and Mann
v. Scott, 41 F.3d 968, 983-84 (5th Cir. 1994)).
issue of ineffective assistance of counsel is a mixed
question of law and fact. Clark v. Thaler, 673 F.3d
410, 416 (5th Cir. 2012); Woodfox v. Cain, 609 F.3d
774, 789 (5th Cir. 2010). Thus, the question before this
court is whether the state courts' denial of relief was
contrary to or an unreasonable application of United States