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Bueno v. State

United States District Court, E.D. Louisiana

February 19, 2019

NIVALDO M. BUENO
v.
STATE OF LOUISIANA

         SECTION “A” (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. STATE COURT PROCEDURAL BACKGROUND

         The petitioner, Nivaldo M. Bueno, is incarcerated in the Louisiana State Penitentiary in Angola, Louisiana.[2] On October 7, 1982, Bueno was charged by bill of indictment in Orleans Parish with first degree murder while in the perpetration or attempted perpetration of an armed robbery and aggravated kidnaping in violation of La. Rev. Stat. § 14:30.[3] Bueno was 17 years old at the time of the offense.

         The Louisiana Fourth Circuit Court of Appeal summarized the facts determined at trial as follows in relevant part:

The defendant and Isidros Lopez kidnapped the victim Mr. Louis Salling at gunpoint as he was making a bank deposit on January 30, 1982. Mr. Salling, had been observed by Lopez making deposits at the bank at the same time on previous occasions. This was part of Mr. Salling's job as manager of the K & B Drugstore in Oakwood Shopping Center. The victim was driven to a secluded trash dump in Algiers and shot several times after he pled for his life. He was killed instantly. The defendant and Lopez then left the scene with the money the victim had intended to deposit.
On September 23, 1982 the defendant, who was employed as a painter, was approached by Officers Jerry Ursin and William Trepagnier of the New Orleans Police Department, while he was painting a house. The officers brought him to the District Attorney's Office where he gave a written statement explaining his involvement in the murder of Mr. Sallings. The defense moved to suppress the introduction of this confession at trial. After a motion hearing the trial judge denied the motion and the confession was introduced by the State.

State v. Bueno, KA-1554, 499 So.3d 362, 63 (La.App. 4th Cir. November 14, 1986); State Record Volume 5 of 8, Louisiana Fourth Circuit Court of Appeal Opinion, KA-1554, page 2, November 14, 1986.

         Bueno was tried before a jury on January 5 and 6, 1983 and found guilty as charged.[4] The jury unanimously recommended that Bueno be sentenced to life imprisonment.[5] He was sentenced on January 12, 1983 to life in prison without benefit of parole, probation or suspension of sentence.[6]

         Bueno filed a timely direct appeal to the Louisiana Fourth Circuit challenging the state trial court's denial of his motion to suppress his confession.[7] On November 14, 1986, the Louisiana Fourth Circuit affirmed the conviction and sentence finding that Bueno's confession was freely and voluntarily given and the trial court was therefore correct in denying his motion to suppress.[8] Bueno's conviction became final 30 days later, on Monday, December 15, 1986, [9] when he did not seek review in the Louisiana Supreme Court. See Butler v. Cain, 533 F.3d 314, 317 (5th Cir. 2008) (citing Roberts v. Cockrell, 319 F.3d 690, 693 (5th Cir. 2003) (an appeal is final when the state defendant does not timely proceed to the next available step in an appeal process)); La. S.Ct. R. X§ 5.

         On May 18, 1995, Bueno filed an application for writ of habeas corpus in the state trial court, which was denied on May 30, 1995.[10] The Louisiana Fourth Circuit denied his related writ application.[11] The Louisiana Supreme Court denied relief for seeking untimely post-conviction review, citing La. Code Crim. P. art. 930.8, State ex rel. Glover v. State, 660 So.2d 1189 (La. 1995) and La Code Crim P. art. 351.[12]

         Bueno filed his first petition for federal habeas corpus and on July 8, 1997, United States Magistrate Judge Louis Moore, Jr., recommended that his petition be denied.[13] The District Judge adopted the report and recommendation and dismissed the case on July 31, 1997.[14]

         On March 31, 1999, Bueno filed an application for post-conviction relief in the state trial court.[15] He sought an application for a writ of mandamus with the Louisiana Fourth Circuit on December 1, 1999.[16] The Louisiana Fourth Circuit denied relief on January 6, 2000.[17] On December 8, 2000, the Louisiana Supreme Court denied Bueno's related writ application.[18]

         Bueno filed another application for writ of habeas corpus, which the state trial court denied on January 28, 2002.[19] The Louisiana Fourth Circuit denied his related writ application on March 13, 2002.[20] The Louisiana Supreme Court denied writs without stated reasons on April 25, 2003.[21]

         Bueno filed another application for writ of habeas corpus in the state trial court on December 28, 2003.[22] The state trial court denied the writ application without reasons on February 2, 2004.[23] Bueno's writ application was denied by the Fourth Circuit on April 5, 2004.[24] The Louisiana Supreme Court denied relief without reasons.[25]

         In an application for writ of mandamus filed in the Fourth Circuit, Bueno alleged that the state trial court failed to rule on his July 13, 2012 motion pursuant to Miller v. Alabama[26] to correct illegal sentence.[27] The Louisiana Fourth Circuit denied relief finding that there was no record of such a motion.[28] Bueno sought another supervisory writ from the Fourth Circuit and included a motion to correct or reconsider sentence.[29]The Fourth Circuit granted relief for the purpose of transferring the motion to correct and/or for reconsideration to the state trial court for consideration.[30] According to Bueno, the state trial court denied the motion on May 18, 2015, referencing State v. Tate, 130 So.3d 829 (La. 2013), in which the Louisiana Supreme Court found that Miller was not retroactively applicable to challenges filed by individuals whose underlying convictions and sentences were already final.[31]

         On January 25, 2016, Bueno filed another motion for reconsideration of his sentence based on Montgomery v. Louisiana, 136 S.Ct. 718 (2016), which held that Miller was retroactively applicable on collateral review, and he later supplemented his motion.[32] His previously filed motion to correct sentence was refiled in the record on January 29, 2016.[33] The state trial court granted a stay of Bueno's resentencing pending enactment of legislation providing for the retroactive application of Miller.[34] Bueno sought a writ of mandamus ordering the state trial court to rule on his motion.[35] The Louisiana Fourth Circuit granted the writ and remanded the case for resentencing.[36]

         On November 29, 2016, Bueno's appointed counsel filed a motion, citing State v. Craig, 340 So.2d 191 (La. 1976)[37] and requesting that Bueno be sentenced to 21 years imprisonment, the most serious legal penalty for the next lesser included offense.[38] At a hearing on November 29, 2016, the state trial court granted Bueno's motion to correct illegal sentence but denied the motion for a sentence consistent with Craig.[39] The state trial court vacated the sentence from January 1983 and sentenced Bueno to life with parole eligibility but without the benefit of probation or suspension of sentence and credit for time served.[40]

         Bueno filed a writ application in the Fourth Circuit on December 22, 2016, seeking review of his sentence.[41] On March 3, 2017, the Louisiana Fourth Circuit found, “Relator's sentencing is an appealable judgment. La. Code Crim. P. art. 912C(1). Given this set of circumstances, the writ application is dismissed and relator is directed to seek relief by appeal.”[42] Instead of following the Fourth Circuit's directions, Bueno applied for review in the Louisiana Supreme Court on March 21, 2017.[43] The Louisiana Supreme Court denied relief without stated reasons on August 3, 2018.[44]

         II. FEDERAL HABEAS PETITION

         On August 22, 2018, Bueno filed this petition for federal habeas corpus relief in which he asserts the following grounds for relief:[45] (1) The state trial court erred in sentencing him to a sentence that was not authorized by legislative acts or statute. (2) His sentence constitutes an unconstitutional ex post facto application of law and he was entitled to be resentenced to a sentence of 21 years imprisonment pursuant to State v. Craig.

         The State filed an answer in response to Bueno's petition in which it concedes that the federal petition is not successive.[46] The State claims that Bueno's application is untimely and that his claims are unexhausted because he has yet to file a direct appeal of his new sentence. At the same time, the State concedes that it is unclear whether the Louisiana Fourth Circuit, in denying his 2016 writ application, was advising Bueno to file a request for an out-of-time appeal or actually granting him leave to take an appeal.[47]The State claims that, if it was the former, his habeas petition is untimely. It claims that if was the latter, since no time frame was prescribed within which to act, Bueno could arguably still file an appeal with the Louisiana Fourth Circuit. Ultimately, the State claims that this court need not resolve the issues of timeliness or exhaustion because Bueno's claims are meritless.

         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[48] 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 Buenos's petition, which, for reasons discussed below, is deemed filed in a federal court on August 22, 2018.[49] 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 AEDPA requires a petitioner to bring his Section 2254 petition within one year of the date his conviction became final. Duncan v. Walker, 533 U.S. 167, 179-80 (2001). As explained above, due to the lack of clarity of the opinion of the Louisiana Fourth Circuit, it cannot be determined whether Bueno's conviction is final. If the Fourth Circuit was instructing Bueno to seek leave to file an out-of-time appeal through an application for post-conviction relief, his conviction became final Thursday, December 29, 2016, when he did not correctly pursue review of his sentence or conviction through a direct appeal. See Cousin v. Lensing, 310 F.3d 843, 845 (5th Cir. 2002). Thus, under a literal application of the statute, Bueno had one year from that date, or until Friday, December 29, 2017, to file his federal habeas corpus petition, which he did not do. His petition would be untimely unless the one-year statute of limitations period was interrupted or otherwise tolled. If, however, the Fourth Circuit opinion granted Bueno permission to file an out-of-time appeal, it did not specify a date by which to do so and theoretically Bueno could still file an appeal.

         I find that it is appropriate to err on the side of caution when faced with such an unclear issue concerning the timeliness of a federal habeas petition. See Fisher v. Johnson, 174 F.3d 710, 713 (5th Cir. 1999) (“We must be cautious not to apply the statute of limitations too harshly. Dismissal of a first habeas petition is a particularly serious matter, for that dismissal denies the petitioner the protections of the Great Writ entirely, risking injury to an important interest in human liberty.” (quotation marks omitted)). I therefore recommend that the court pretermit a ruling on the timeliness of this petition. See Cleveland v. Kent, Civ. Action No. 16-13559, 2018 WL 1748345, at *3 n. 15 (E.D. La. Jan. 16, 2018) (“A federal habeas court may pretermit a ruling on timeliness when it can more easily dispose of a petition on other grounds.”) (collecting cases), report and recommendation adopted by, 2018 WL 1738810 (E.D. La. Apr. 11, 2018) (Milazzo, J.)

         The State correctly claims that Bueno failed to exhaust his state court remedies in a procedurally proper manner. He did not file a direct appeal of his sentence. The state courts, therefore, have not been given a full opportunity to address his claims and review of his claims is not exhausted. Nevertheless, Bueno's failure to exhaust does not prevent this court from considering these claims because he is not entitled to relief. 28 U.S.C. § 2254(b)(2). Bueno's petition should be denied and dismissed with prejudice because his federal constitutional claims are meritless.

         IV. STANDARDS OF MERIT REVIEW

         A. CLAIMS ADDRESSED ON THE MERITS BY THE STATE COURTS

         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)), cert. denied, 532 U.S. 1039 (2001). The amended statute also codifies the “presumption of correctness” that attaches to state court findings of fact and ...


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