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Brumfield v. Tanner

United States District Court, E.D. Louisiana

April 24, 2019


         SECTION: “S” (5)



         This matter was referred to the undersigned United States Magistrate Judge to conduct a hearing, 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 in the United States District Courts. Upon review of the entire record, the Court has determined that this matter can be disposed of without an evidentiary hearing. See 28 U.S.C. § 2254(e)(2). For the following reasons, IT IS RECOMMENDED that the petition for habeas corpus relief be DISMISSED IN PART WITH PREJUDICE AS TIME-BARRED AND IN PART WITHOUT PREJUDICE AS UNEXHAUSTED.

         Procedural History

         Petitioner, Sherrod Brumfield, is a convicted inmate incarcerated at the Rayburn Correctional Center in Angie, Louisiana. On July 20, 1999, he was charged by bill of information with two counts of armed robbery, two counts of second-degree kidnapping, one count of attempted simple burglary of an inhabited dwelling, and one count of possession of stolen things valued over $500.[1] His co-defendant, Bron Taplin, was charged with two counts of armed robbery and two counts of second-degree kidnapping arising from the same incidents. On August 19, 1999, defense counsel filed various pretrial motions, including motions to suppress; a motion for bill of particulars, discovery, and inspection; a motion for a preliminary examination; and a motion for production of the initial police report.[2] The hearing was scheduled for August 20, 1999. Defense counsel received police reports the day of the hearing. Despite problems expressed by both the State and the defense in proceeding on the motions, the trial court stated no continuance would be allowed and the matter proceeded as scheduled.[3] On August 24, 1999, the hearing concluded and the motions to suppress were denied and probable cause found to substantiate the charges.[4] The trial court denied defense counsel's motion to sever counts five and six and her request that another attorney be appointed to represent one of the defendants for trial due to a conflict of interest.[5] That same day, both defendants withdrew their former pleas of not guilty and entered pleas of guilty as charged. Taplin was sentenced to 15 years' imprisonment at hard labor without benefit of parole, probation or suspension of sentence on each count, to run concurrently. Brumfield was sentenced on the armed robbery charge to 25 years' imprisonment at hard labor without benefit of parole, probation or suspension of sentence. The State filed a habitual-offender bill that same date, and Brumfield admitted to the prior felony conviction. The trial court imposed an enhanced sentence of 49 1/2 years' imprisonment.[6] He did not appeal the conviction or sentence.

         On or about September 9, 1999, defense counsel, Christine Changho, filed a motion to reconsider Brumfield's sentence.[7] Although the record reflects that a hearing was set for October 1, 1999, no minute or docket entry exists for that date. On March 23, 2000, attorney, D. Majeeda Snead, on behalf of Brumfield, filed a motion to withdraw the guilty plea.[8] The docket master reflects that Snead also filed a motion to reconsider the sentence, but no such motion appears anywhere in the state-court record. A hearing was scheduled for March 31, 2000. At the hearing, Snead called defense counsel Changho, Brumfield and his mother.[9] The matter was submitted with the motion held open and a date provided for the defense and State to file memoranda. On May 5, 2000, the hearing concluded with the trial court stating it was denying the motion to reconsider.[10] Defense counsel noted an objection and intent to appeal, and the record includes a written notice of appeal from the denial of the motion to set aside the guilty plea; however, no appeal or writ was ever pursued.[11]

         At this point, the state-court record gets murky and the litigants' procedural histories diverge somewhat. Brumfield claims that his counsel filed an application for post-conviction relief on December 4, 2003. However, no such application appears of record, even though the earliest mention of post-conviction relief in the Docket Master and the minute entries does begin with the appearance of counsel, Clifton Stoutz, on Brumfield's behalf, on December 4, 2003. According to the State, counsel filed an application for post-conviction relief on August 25, 2006. An entry dated August 25, 2006 reflects the filing of a uniform application for post-conviction relief, but no application appears of record. A hearing took place on June 25, 2007, at which time the trial court agreed with defense counsel that it had not informed Brumfield of the two-year time-period in which to seek post-conviction relief.[12] The trial court notified him that he had two additional years from the date of the hearing within which to seek post-conviction relief. The State objected on grounds that state law did not allow the grant of an additional two years simply because the trial court failed to inform him of the time-period at sentencing. Although the record reflects that the State considered supervisory review, no formal notice of intent was ever filed.

         On June 18, 2008, Brumfield filed an application for post-conviction relief with the state district court. A minute entry dated June 18, 2008 reflects the filing of an application for post-conviction relief; however, only an undated copy of this post-conviction application from the Assistant District Attorney's records is contained in the state-court record (attached as Exhibit C to the State's Writ No. 2009-K-177, State Rec., Vol. 7 of 12). The application raised five claims for relief: (1) petitioner's plea and sentence violated the law of double jeopardy; (2) he was not adequately advised of his rights during the guilty plea colloquy; (3) his original sentence that was imposed before the multiple-offender sentence was never vacated; (4) he was never advised of his right to remain silent or his right to have the state prove he was a multiple offender before admitting his habitual-offender status; and (5) defense counsel had divided loyalties when representing Brumfield and his co-defendant. On August 1, 2008, the trial court denied relief summarily on some issues, but ruled that an evidentiary hearing was necessary on the remaining claims, including the claim of ineffective assistance/conflict of counsel. On October 3, 2008, an evidentiary hearing was held during which Taplin and Brumfield provided testimony; the matter was held open for Changho's testimony. On October 9, 2008, following Changho's testimony, the trial court granted relief on the conflict of interest claim. The State's request for a stay was denied.

         On January 25, 2009, Brumfield filed a “Motion for Habeas Corpus Relief or in the alternative Motion for Discharge” with the Louisiana Fourth Circuit Court of Appeal stemming from the October 9 ruling, suggesting he should be released because the State did not timely file a new bill of information.[13] On February 13, 2009, the State filed its own related supervisory writ application.[14] On April 8, 2009, the Louisiana Fourth Circuit denied Brumfield relief from the district court's ruling that was not yet final and still pending supervisory review in the court of appeal on the State's writ application.[15] On May 14, 2009, the court of appeal denied the State's application for supervisory writ.[16] The State challenged that ruling and requested a stay in a related supervisory writ application filed with the Louisiana Supreme Court.[17] On September 2, 2009, the Louisiana Supreme Court vacated the stay it had granted and granted the State's writ. The Court found that Brumfield's post-conviction application was time-barred despite the attempt by the trial court in June 2007 to grant Brumfield an additional two years to seek post-conviction relief.

         The Louisiana Supreme Court explained:

Respondent's conflict-of-interest claim, based on facts known to him at the time he entered his guilty pleas, does not otherwise fall within any of the exceptions to the time limit enumerated in art. 930.8(A) and is therefore time barred as a matter of La. C.Cr.P. art. 930.8(A).[18]

         The Louisiana Supreme Court reversed the trial court's grant of relief and reinstated the conviction and habitual-offender sentence.

         On March 31, 2010, Brumfield filed a motion to correct an illegal sentence with the state district court.[19] He argued that the habitual-offender sentence was imposed illegally without vacating the original 25-year sentence for armed robbery. Furthermore, the sentence was not specific regarding the other five counts to which he pleaded guilty or whether the sentences would run concurrently. On September 20, 2011, the trial court resentenced Brumfield as follows:

As to the count where he was multiple billed on the 15:529.1, the sentence remains the same. It is forty-nine and a half years under the multiple bill. That remains the same.
As to the other armed robbery, that count, it is a twenty-five year sentence running concurrent with the forty-nine and a half.
As to the-that's the one without the multiple bill, so he gets good time for that.
As to the burglary of an inhabited dwelling, he gets six years-and that is an attempted burglary of an inhabited dwelling, and that is six years to run concurrent with all of his other sentences.
And, as to the two counts of second degree kidnaping, that goes up to forty years, and he is going to get twenty-five years on each one of them, and they are to run concurrent with each other, and all sentences are then to run concurrently with each other.
* * *
For the possession of stolen property, he receives a ten year sentence and that is to run concurrent with the rest of them.[20]

         The trial court agreed that as to the five counts on which he was recently resentenced, the two years for post-conviction would begin, but not for the habitual-offender sentence.[21] No objections were raised.

         On September 14, 2012, the trial court resentenced Brumfield on the multiple-offender charge stemming from the armed robbery.[22] The trial court vacated the sentence on the armed robbery and re-sentenced him under the multiple-bill statute. He imposed the sentence to run concurrent with all other sentences and with credit for time served. The trial court advised that as to this sentence he has two years for post-conviction relief. Defense counsel agreed that with respect to the other five counts, the two-year period started from the resentencing on September 20, 2011. The State noted its objection to the time for post-conviction on the multiple offender sentence running anew from this date; however, the State did not file a writ application challenging the ruling.

         On September 20, 2012, Brumfield filed an application for post-conviction relief asserting his claim of ineffective assistance of counsel based on a conflict of interest.[23] The State filed procedural objections to the post-conviction application arguing that it was time-barred and repetitive. Brumfield countered that the application was filed timely within two years from the date his conviction and sentence became final (i.e. 30 days after the September 2011 resentencing). On May 1, 2013, the district court held a hearing and denied the State's procedural objections.[24] The district court did not rule on the merits of the claims raised by Brumfield. The district court granted the State's motion to stay the proceedings and gave the State time to seek writs on the procedural issue. On June 3, 2013, the State filed a supervisory writ application with the Louisiana Fourth Circuit. The court of appeal found no abuse of discretion in the trial court's ruling and denied the writ.[25] On November 14, 2014, the Louisiana Supreme Court granted the State's related supervisory writ application in part and denied it in part.[26] The Court determined that “the appellate court erred to the extent that it upheld the trial court's denial of the state's procedural objections as to the count of armed robbery carrying respondent's habitual offender sentence.” The Court held:

The post-conviction time limitations period did not begin to run anew when the district court vacated the habitual offender sentence originally imposed in 1999 and resentenced respondent in 2012 to the same term. As noted in our prior decision, respondent's window of opportunity for collaterally attacking the one armed robbery conviction supporting the habitual offender sentence had fully closed by the time respondent filed his first application in 2008 asserting a conflict-of-interest “based on facts known to him at the time he entered his guilty pleas, ” and not “otherwise fall[ing] within any of the exceptions to the time limit enumerated in art. 930.8.” That window did not reopen when the trial court corrected its error in 1999 by finally imposing sentence on the remaining counts in 2011, without objection by the state, and thereby gave respondent an opportunity to collaterally attack those convictions.

Brumfield, 152 So.3d at 871. Thus, the Court granted the State's writ to the extent it ruled that Brumfield's claim related to the armed robbery conviction supporting the habitual-offender adjudication and the sentence was time-barred. The writ was denied in all other respects.

         On April 8, 2016, Brumfield, represented by Graham Bosworth and Autumn Town, filed a motion to supplement his 2000 application for post-conviction relief with the state district court.[27] Brumfield argued that his motion to withdraw his guilty plea based on ineffective assistance and a conflict of counsel had been timely filed in 2000, but was never ruled upon, and he sought to supplement that post-conviction motion. He raised a claim of ineffective assistance due to conflicted counsel and a supplemental claim that he was denied due process. The State opposed the application on procedural grounds. The trial court, Jerome Winsberg, Judge Pro Tempore presiding, held a ...

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