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Fusilier v. Rayburn Correctional Center

United States District Court, W.D. Louisiana, Lake Charles Division

March 7, 2019

ANDREW J. FUSILIER D.O.C. # 636862
v.
WARDEN RAYBURN CORR. CENTER

          SUMMERHAYS JUDGE

          REPORT AND RECOMMENDATION

          KATHLEEN KAY UNITED STATES MAGISTRATE JUDGE

         Before 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.

         This 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.

         I.

         Background

         A. Conviction

         On 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.[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.[2] Id.

         Fusilier 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.[3] 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 18816-11.[4] Id.

         At a 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 137-50.

         B. Direct Appeal

         The 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.

         C. State Collateral Review

         The 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.[5] 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.

         D. Federal Habeas Petition

         The 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.

         II.

         Legal ...


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