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Jackson v. Leblanc

United States District Court, E.D. Louisiana

February 4, 2019

PERRY JACKSON
v.
JAMES LEBLANC

         SECTION “G” (2)

          REPORT AND RECOMMENDATION

          JOSEPH C. WILKINSON, JR. UNITED STATES MAGISTRATE JUDGE.

         This 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).[1] For the following reasons, I recommend that the instant petition for habeas corpus relief be DENIED and DISMISSED WITH PREJUDICE.

         I. FACTUAL BACKGROUND

         The petitioner, Perry Jackson, is a convicted inmate currently incarcerated in the Elayn Hunt Correctional Center in St. Gabriel, Louisiana.[2] On September 24, 2015, Jackson was charged by bill of information in Orleans Parish with failure to register as a sex offender.[3] The charge arose from Jackson's 1994 conviction in Orleans Parish No. 371-460 for the forcible rape of “his common law wife.”[4] 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 On January 17, 1997, Petitioner was arrested in Jefferson Parish, and his parole was revoked.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 sentence.
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 Cir. 2002).

         The 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.[5] He later was arrested in another county on unrelated drug charges on July 29, 2013.[6]

         On January 31, 2014, he was transferred to Harris County and pleaded guilty to the failure to register charge on March 14, 2014.[7] 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.[8] These allegations are consistent with the information charged in the bill of information in the underlying Louisiana criminal case at issue in this habeas petition.

         On 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.[9] 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.[10] The state trial court sentenced Jackson as a second felony offender to five years in prison at hard labor.[11]

         Jackson's conviction and sentence became final 30 days later, on Monday, November 30, 2015, [12] 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. art. 914[13])

         On 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:[14] (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.

         On July 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 (1985).[15]

         On October 14, 2016, the Louisiana Fourth Circuit denied Jackson's related writ application, finding no error in the state trial court's ruling.[16] 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 claims.[17]

         III. FEDERAL HABEAS PETITION

         On May 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:[18] (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.

         The 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.[19] 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.[20]

         III. GENERAL STANDARDS OF REVIEW

         The 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[21] 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.[22] 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)).

         The 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.

         IV. STANDARDS OF A MERITS REVIEW[23]

         28 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)).

         Determinations 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).

         A state 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 as follows:

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 prisoner's case.

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)).

         “‘[A] 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).

         V. EFFECTIVE ASSISTANCE OF COUNSEL (CLAIM ONE)

         Jackson 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 Strickland.

         Strickland 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.

         In 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.)

         On 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.

         Thus, 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.

         Federal 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)).

         The 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 Supreme Court.

         A. DISCOVERY ...


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