United States District Court, W.D. Louisiana, Lake Charles Division
ANDREW J. FUSILIER D.O.C. # 636862
WARDEN RAYBURN CORR. CENTER
REPORT AND RECOMMENDATION
KATHLEEN KAY UNITED STATES MAGISTRATE JUDGE
the court is a petition for writ of habeas corpus filed
pursuant to 28 U.S.C. § 2254 by Andrew J. Fusilier, who
is proceeding pro se in this matter. Fusilier is an inmate in
the custody of the Louisiana Department of Public Safety and
Corrections and is currently incarcerated at Rayburn
Correctional Center in Angie, Louisiana. Robert C. Tanner,
warden of that facility and respondent in this matter,
opposes the petition. Doc. 20. The petitioner has not filed a
reply and his time for doing so has elapsed.
petition is referred to the undersigned for review, report,
and recommendation in accordance with 28 U.S.C. § 636
and the standing orders of the court. For the following
reasons IT IS RECOMMEDED that the petition
for writ of habeas corpus be DENIED and
DISMISSED WITH PREJUDICE.
December 16, 2010, the petitioner was charged by bill of
indictment in the Fourteenth Judicial District Court,
Calcasieu Parish, Louisiana, with two counts of aggravated
incest, a violation of Louisiana Revised Statute §
14:78.1. Doc. 20, att. 2, p. 28. These charges were
filed in Docket No. 37462-10 and related to two alleged
incidents of sexual abuse by the petitioner against a minor
relative, when the petitioner was 24 years old. Id.
On the same date, he was charged in Docket No. 37486-10 with
one count of computer-aided solicitation of a different
minor, in violation of Louisiana Revised Statute §
14:81.3. Doc. 20, att. 3, p. 28. That charge related to
communications made when the petitioner was again 24 years
old. Id. On May 5, 2011, Fusilier was charged in
Docket No. 18816-11 with one count of aggravated rape, a
violation of Louisiana Revised Statute § 14:42, and one
count of sexual battery, a violation of Louisiana Revised
Statute § 14:43.1. Doc. 20, att. 4, p. 17. These charges
related to crimes against another victim and were alleged to
have occurred between December 22, 1999, and May 31, 2004,
when the victim was three to seven years old and the
petitioner was fourteen to eighteen years old. Id.
pleaded not guilty and requested a jury trial for all
charges. Doc. 20, att. 2, p. 16; doc. 20, att. 3, p. 16; doc.
20, att. 4, p. 9. On March 19, 2012, the state dismissed one
count of aggravated incest in Docket No. 37462-10 and amended
the remaining charge to indecent behavior with a juvenile, a
violation of Louisiana Revised Statute § 14:81. Doc. 20,
att. 2, pp. 24-25. It also dismissed the sexual battery
charge in Docket No. 18816-11 and amended the aggravated rape
charge to simple rape, a violation of Louisiana Revised
Statute § 14:43. Id. Finally, it amended the date
of the simple rape charge to “between September 11,
2002, and May 31, 2004, ” when the petitioner was
seventeen to eighteen years old. Id. The petitioner
then withdrew his not guilty pleas and pleaded guilty to the
computer solicitation charge, in Docket No. 37486-10.
Id. He entered an Alford plea to the
offenses, as amended, in Docket Nos. 37462-10 and
hearing on August 17, 2012, the petitioner was sentenced to
(1) a twenty year term of imprisonment on the indecent
behavior with a juvenile charge, under Docket No. 37462-10;
(2) a ten year term of imprisonment on the computer-aided
solicitation charge, under Docket No. 37486-10; and (3) a
twenty year term on the simple rape charge, under Docket No.
18816-11; with all three terms to run consecutively, without
benefit of probation, parole, or suspension of sentence.
Id. at 26-27. The petitioner filed a Motion to
Withdraw Guilty Pleas or Alternatively to Reconsider
Sentence, which the trial court denied. Id. at
petitioner timely appealed the judgments in all three cases
to the Louisiana Third Circuit Court of Appeal, raising
claims of trial court error in denying the motion to withdraw
guilty pleas and ineffective assistance of trial counsel.
See State v. Fusilier, 2013 WL 5629041 (La. Ct. App.
3d Cir. 2013). His ineffective assistance claim was based on
advice allegedly offered about his sentencing exposure under
the plea deal and failing to file a motion to withdraw his
guilty plea before sentencing. Id. The Third Circuit
reviewed both claims on the merits and denied relief.
Id. The petitioner sought review in the Louisiana
Supreme Court, which denied same on July 31, 2014. State
ex rel. Fusilier v. State, 147 So.3d 168 (La. 2014). He
did not seek review in the United States Supreme Court. Doc.
1, p. 3.
State Collateral Review
petitioner filed a pro se application for post-conviction
relief in in the trial court on or about February 14, 2014,
while his direct appeal was still pending. Doc. 20, att. 5,
pp. 19-40. There he claimed that he received ineffective
assistance from (1) trial counsel, through his alleged advice
that he (the petitioner) faced a mandatory sentence of life
without parole under the original charges, and (2) appellate
counsel, who allegedly failed to raise certain claims on
appeal or to timely forward the Third Circuit's judgment
to the petitioner. Id. The trial court denied the
application. Id. at 109-11. The petitioner sought
review in the Third Circuit, which granted the writ in part
and remanded the case for further consideration based on its
finding that the trial court had not actually addressed the
allegations made by the petitioner under the ineffective
assistance of trial counsel claim. Id. at 118. After
ordering a response from the state, the trial court reviewed
the ineffective assistance of trial counsel claim again and
denied relief. Id. at 143-44. The Third Circuit
denied the petitioner's subsequent writ application,
finding no error to the trial court's ruling.
Id. at 158. The Louisiana Supreme Court denied
review on September 22, 2017, also noting that the petitioner
failed to show that he had received ineffective assistance of
counsel under applicable standards. Id. at 160-61.
Federal Habeas Petition
instant petition was filed in this court on May 3, 2018. Doc.
1; see Id. at 12. Here the petitioner renews both
claims from his state application for post-conviction relief.
Doc. 1, att. 1.