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Patton v. Cain

United States District Court, M.D. Louisiana

March 8, 2019




         Please take notice that the attached Magistrate Judge's Report has been filed with the Clerk of the U.S. District Court.

         In accordance with 28 U.S.C. § 636(b)(1), you have 14 days after being served with the attached report to file written objections to the proposed findings of fact, conclusions of law, and recommendations set forth therein. Failure to file written objections to the proposed findings, conclusions and recommendations within 14 days after being served will bar you, except upon grounds of plain error, from attacking on appeal the unobjected-to proposed factual findings and legal conclusions accepted by the District Court.



         These habeas cases, which were filed pursuant to 28 U.S.C. § 2254, were consolidated on February 11, 2016, as they stem from the same judgment of conviction.[1] The application filed in Civil Action No. 16-10 was filed pro se, while the application filed in Civil Action No. 16-40 was filed by counsel. An evidentiary hearing is unnecessary.[2] It is recommended that the consolidated cases be severed; that Civil Action No. 16-10 be dismissed without prejudice for failure to exhaust state court remedies; and that Civil Action No. 16-40 be dismissed with prejudice as those claims are barred due to procedural default.[3]

         I. Procedural History

         A. Trial Court

         On July 15, 2009, Petitioner was convicted of aggravated kidnapping and forcible rape. On December 14, 2009, Petitioner was sentenced to life in prison for aggravated kidnapping without the benefit of probation, parole, or suspension of sentence and, originally, was sentenced to forty years for forcible rape, which sentence was later amended when Petitioner was adjudicated a habitual offender and sentenced on July 12, 2010 to life imprisonment without the benefit of probation, parole, or suspension of sentence.[4]

         B. Direct Appeal

         Petitioner pursued a direct appeal with the Louisiana Court of Appeal for the First Circuit (“First Circuit”) in which he raised the following assignments of error: (1) denial of the right to confront Petitioner's accuser and cross-examine the analyst who performed DNA testing; (2) ineffectiveness of trial counsel for not objecting to analyst testimony regarding another analyst's report; (3) admission of hearsay testimony; (4) prosecutorial misconduct; (5) insufficient evidence; (6) double jeopardy; (7) the propriety of the habitual offender adjudication; (8) admission of scientific evidence; and (9) ineffective assistance of counsel (generally). In addition, counsel requested a review of the record for errors discoverable by a mere inspection of the pleadings and proceedings without inspection of evidence. The First Circuit affirmed the convictions and the sentence imposed as to the aggravated kidnapping charged, but remanded the matter to the trial court for resentencing on the forcible rape charge after finding the habitual offender adjudication was improper.[5] Petitioner thereafter sought review with the Louisiana Supreme Court, which denied review on June 15, 2012.[6]

         On April 26, 2013, the trial court, pursuant to the First Circuit's instructions, resentenced Petitioner to forty years for the forcible rape conviction to run concurrently with his life sentence for aggravated kidnapping.

         C. Post-Conviction Relief

         On July 19, 2013, Petitioner filed pro se and counseled applications for post-conviction relief. The counseled application asserted the following grounds for relief: (1) ineffective assistance of counsel and (2) prosecutorial misconduct. The pro se application also raised ineffective assistance of counsel and prosecutorial misconduct as grounds for relief and, in addition, alleged the following grounds for relief: (1) “tainted evidence and material misrepresentation by two detectives with unreliable hearsay;” (2) “the State's forensic expert testimony constituted fraud and was unreliable as hearsay with withholding or suppressing complete facts or inaccuracies;” (3) false testimony and misleading testimony from Monica Lavigne that caused an unfair and prejudicial jury decision in violation of the United States Constitution;” and (4) trial judge's reversible error in violation of no-comment rule and improper prejudicing jury instructions depriving Petitioner of fair trial.”

         The State filed procedural objections to Petitioner's application for post-conviction relief contending that Petitioner's claims were procedurally barred based on Louisiana Code of Criminal Procedure articles 930.3 and 930.4. Specifically, the claims made by Petitioner did not meet the requirements of article 930.3 and those claims that did were barred by article 930.4. At the hearing on Petitioner's application for post-conviction relief, no evidence was presented, and the only argument provided was regarding the State's procedural objections. The trial court did not address the merits of the substantive claims because it found the claims were procedurally barred. The trial court thereafter issued a written judgment denying Petitioner's application for post-conviction relief based on the procedural objection made by the State and specifically stated as follows:

IT IS ORDERED, ADJUDGED, AND DECREED that the State's procedural objection to the granting of defendant's application for “Post-Conviction Relief is hereby sustained and that based on claims made, the trial court denied defendant's counseled and pro se Application for Post-Conviction Relief.

         Petitioner sought review with the First Circuit, which was denied on May 23, 2014. Thereafter, Petitioner sought review with the Louisiana Supreme Court, which also denied review on March 13, 2015.[7]

         D. Federal Habeas Corpus Writ Applications

         Petitioner filed two applications for writ of habeas corpus, a pro se application[8] on January 11, 2016 raising the following grounds for relief: (1) denial of the right to confrontation and cross-examination; (2) ineffective assistance of counsel; (3) prosecutorial misconduct; and (4) double jeopardy and ex post facto violations; and a counseled application[9] on January 20, 2016 raising as grounds for relief the denial of right to confrontation and ineffective assistance of counsel. The cases were consolidated for adjudication.[10]

         II. Dismissal of Pro Se Application for Failure to Meet Total Exhaustion Requirement

         One of the threshold requirements for a § 2254 petition is that, subject to certain exceptions, the petitioner must have first exhausted in state court all of his claims before presenting them to the district court.[11] The Supreme Court has interpreted § 2254(b)(1) to require dismissal of a habeas corpus petition if it contains even a single unexhausted claim - the “total exhaustion” requirement.[12] The goal of this doctrine, as stated in Rose, is to afford state courts the first opportunity to review claims of constitutional error which promotes comity and ensures a more complete factual record will be developed that will aid federal courts in their review.[13]

         In Petitioner's pro se habeas application (Civil Action No. 16-10), he has raised prosecutorial misconduct as one claim for relief.[14] As part of this claim, Petitioner alleges his trial was rendered fundamentally unfair as a result of the State's presentation of false or misleading evidence. Petitioner alleges the prosecutor improperly manipulated material evidence and misled the jury and intentionally failed to subpoena the analyst who actually performed the DNA testing. Petitioner further alleges that the prosecutor knew the DNA testimony presented was misleading and that the testimony of the victim, Detective Moody, and Dr. Vitrano[15] was misleading.

         Though Petitioner raised prosecutorial misconduct as a ground for relief in his direct appeal and applications for post-conviction relief, he asserted different grounds for those prosecutorial misconduct claims. Specifically, on direct appeal, Petitioner argued prosecutorial misconduct occurred in the following ways: (1) the prosecutor conveyed a false impression to the jurors that defendant had motive and opportunity to commit the crime by prosecutor using an incomplete Petition for Separation, from 1981, that was dismissed June 5, 1981 claiming that resulted in divorce in Mississippi; (2) the prosecutor conveyed “the false allegation that was contrary to defendant's admonishment by the trial judge . . . that deprived the accused of substantive and constitutional rights; and (3) it was plain and prejudicial error for the judge to allow the prosecutor to discredit alibi witness testimony.[16]

         In his counseled and pro se applications for post-conviction relief, Petitioner alleged the following acts of prosecutorial misconduct: (1) “prosecutor violated the advocate/witness rule by testifying as a witness bolstering the state's case telling the jurors the defendant is guilty several times through his trial and vouching for the credibility of inadmissible hearsay with vouching for the credibility of a substitute expert witness that did not perform DNA analysis, and misstating material facts, claiming one of the witnesses positively identified defendant with badgering and assassinating defendant's witnesses in violation of rules of evidence to discredit defendant's witnesses and conceding the color of defendant's vehicle that inflamed the juror's minds with the false impressions ”[17] and (2) “the State improperly and illegally sought to introduce highly prejudicial, inflammatory, and utterly untrustworthy evidence in an attempt to commandeer Petitioner's presentation of evidence and malign Petitioner's alibi defense.[18]

         The instant prosecutorial misconduct claim regarding manipulation of evidence and knowing presentation of misleading evidence was not fully presented to the state courts as the prosecutorial conduct complained of in the pro se habeas application is not the same prosecutorial misconduct complained of in the state court proceedings. The requirement of exhaustion is not satisfied if the petitioner presents new legal theories or new factual claims in his federal application.[19] As the state courts have not had an opportunity to fully evaluate these alleged constitutional violations, the instant pro se petition (Civil Action No. 16-10) is not fully exhausted and is, therefore, subject to dismissal without prejudice.[20]

         III. Dismissal of Counseled Application As Procedurally Defaulted

         The counseled habeas application in this matter alleges two grounds for relief: (1) denial of right to confrontation in the “admission of hearsay evidence from DNA ‘expert' who did not conduct Petitioner's actual DNA analysis;”[21] and (2) ineffective assistance of counsel for failure to object to the testimony of DNA expert who did not conduct Petitioner's DNA analysis.[22]Generally, a federal court will not review a question of federal law presented to a state habeas court if the decision of the state court rests on a state procedural rule that is both independent of the federal claim and adequate to support the judgment.[23] A federal court that reviews a state prisoner's habeas claim must respect a state court's determination that the claim is procedurally barred under state law.[24] A federal habeas court should determine as a threshold matter whether procedural default has occurred on any asserted claim.[25]

         When one reasoned state court decision rejects a federal claim on the basis of an independent and adequate state procedural ground, subsequent unexplained orders that uphold that judgment or reject the same claim are considered by a federal habeas court to rest on the same ground as did the reasoned state judgment, for purposes of the procedural default doctrine.[26] The last reasoned state opinion, which addressed the confrontation clause issue, was the 2011 opinion of the First ...

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