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Griffin v. State

United States District Court, E.D. Louisiana

April 25, 2019

SEAN GRIFFIN
v.
STATE OF LOUISIANA

         SECTION “M” (5)

          REPORT AND RECOMMENDATION

          MICHAEL B. NORTH UNITED STATES MAGISTRATE JUDGE

         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 WITH PREJUDICE.

         I. Procedural History

         Petitioner, Sean Griffin, is a convicted inmate currently incarcerated at the Louisiana State Penitentiary in Angola, Louisiana. On December 29, 2011, Griffin was charged by bill of indictment with second-degree murder in violation of La. Rev. Stat. § 14:30.[1]and felon in possession of a firearm in violation of La. Rev. Stat. §14:95.1.1 On May 9, 2013, a jury found him guilty as charged.[2] Griffin filed a pro se motion to appeal on May 19, 2013, which was the state trial court granted on May 17, 2013.[3]

         Defense counsel filed a motion for new trial and a motion for post-verdict judgment of acquittal on June 21, 2013.[4] On June 24, 2013, the trial court denied the motions and Griffin was sentenced to life in prison at hard labor without the benefit of probation, parole or suspension of sentence as to count one and seven years and six months as to count two to be served concurrently.[5]

         On his first direct appeal, on May 12, 2014, the Louisiana Fifth Circuit found the trial court was divested of jurisdiction upon granting Griffin's motion to appeal and therefore it was without jurisdiction to rule of Griffin's subsequently filed motions or to sentence him, and remanded the case for the trial court to rule on petitioner's post-trial motions and, if denied, to re-sentence Griffin.[6] On April 14, 2014, the trial court denied petitioner's motion for new trial and for post-verdict judgment of acquittal and re-sentenced Griffin to the same sentences.[7]

         On the second direct appeal, Griffin, through counsel, asserted that: (1) the trial court erred by failing to quash the indictment because the La. Rev. Stat. § 14:95.1 was unconstitutional; (2) the evidence was insufficient to support his conviction; and (3) the trial court erred in failing to grant the defense's challenges for cause to Allen Dyess.[8] In Griffin's pro se brief, he assigned 14 errors that overlapped and included multiple issues.[9] Griffin claimed: (1) the trial court erred in denying his pro se pretrial motions as untimely and his counsel was ineffective in failing to file a motion to recuse the trial judge and additional pretrial motions; (2) the trial court abused its discretion and denied him the right to effectively cross-examine Detective Zanotelli during the suppression hearing; (3) ineffective assistance of counsel for failing to object to the trial court's limitation of Detective Zanotelli's cross-examination; (4) the trial court erred in denying the defense's challenge for cause relating to juror Holley; (5) the trial court erred in granting the State's challenge for cause related to Julian; (6) the trial court erred in allowing Pereira to remain on the jury and in limiting defense counsel's examination of the prospective jurors; (7) ineffective assistance of counsel relating to jury selection; (8) ineffective assistance of counsel in failing to investigate the case, refusing to re-urge the motion to quash grand jury indictment, failing to file necessary motions, withdrawing other motions, and allowing the State to introduce unlawfully obtained evidence; (9) the prosecutor made prejudicial remarks during voir dire and confused the prospective jurors regarding the case and law concerning justifiable homicide: (10) defense counsel was ineffective in failing to object to the prosecution's remarks; (11) the trial court made inappropriate comments during voir dire in the presence of the venire; (12) the prosecutor made prejudicial remarks during voir dire and defense counsel was ineffective in failing to request that the venire be dismissed; (13) the trial court restricted defense counsel's examination of prospective jurors regarding justifiable homicide and the consideration of retreat; and (14) the trial court made biased remarks during a bench conference.[10]

         On December 16, 2014, the Louisiana Fifth Circuit Court of Appeal affirmed Griffin's convictions and sentences.[11] On November 20, 2015, the Louisiana Supreme Court denied his application for a writ of certiorari.[12]

         On January 16, 2017, Griffin filed an application for post-conviction relief with the state district court.[13] In that application, he asserted: (1) the trial court erred in failing to instruct the jury on the law pertaining to self-defense/justifiable homicide; (2) ineffective assistance of appellate counsel for failing to raise a claim that petitioner was denied the right to full and fair voir dire examination of prospective jurors; and (3) the prosecutor committed misconduct in repeatedly vouching for the credibility of state witnesses in closing arguments and improperly attacking the credibility of petitioner. On April 4, 2017, the state district court found that claims one and three were procedurally barred under La. Code Crim. P. arts. 930.4(B) and (C) because they were not raised in the proceedings leading up to the convictions or on appeal and found the second claim meritless.[14]

         On May 9, 2017, Griffin filed an application for writ with the Louisiana Fifth Circuit Court of Appeal.[15] The Louisiana Fifth Circuit denied Griffin's writ application on the merits on May 17, 2017. [16] On June 13, 2017, Griffin filed a writ application with the Louisiana Supreme Court.[17] On October 8, 2018, the Louisiana Supreme Court denied Griffin's petition for writ of certiorari finding that petitioner showed no lower court error.[18]

         On October 22, 2018, Griffin filed the instant application for habeas corpus relief.[19] In that application, Griffin claims (1) the trial court erred in failing to instruct the jury on the law of self-defense; (2) he was denied effective assistance of appellate counsel; and (3) prosecutorial misconduct.

         The State concedes that Griffin's petition is not successive and that the federal application is timely. It claims that Griffin's claims one and three are procedurally barred. It contends that claim two should be dismissed on the merits.[20]

         II. Facts

         The following facts were established at trial and summarized by the Louisiana Fifth Circuit Court of Appeal:

On August 28, 2011, Frederick Williams was living in an apartment located at 251 Barry Street, and the Kingfish Lounge2 was located in front of his residence. At about 12:30 A.M., Mr. Williams and Tiffany Noel were talking outside of Mr. Williams' residence when defendant3 walked up and asked Ms. Noel about Mr. Crayton's whereabouts.4 Ms. Noel turned around and attempted to walk away. Defendant grabbed Ms. Noel's shirt, pulled her hair, and “smacked” her. Ms. Noel fell down and defendant “smacked her a few more times.” Mr. Williams picked Ms. Noel up.
2A surveillance video was recovered from the Kingfish Lounge which showed the murder of Mr. Crayton.
3Mr. Williams referred to the person who walked up as “Jigger, ” who Mr. Williams identified in court as defendant.
4Tiffany Noel was Mr. Crayton's girlfriend. Ms. Noel died prior to trial.
Although Mr. Crayton was not present when the argument began, he subsequently ran out of a truck in the parking lot and began fighting with defendant. While Mr. Crayton and defendant were “tussling, ” Mr. Williams heard defendant state, “I'm going to kill you.” Defendant and Mr. Crayton were wrestling with a gun, when Mr. Crayton knocked the gun out of defendant's hand and into the parking lot. Defendant, Mr. Crayton, and Mr. Williams ran towards the gun. Mr. Williams and Mr. Crayton did not attempt to pick up the gun. Defendant picked up the gun, shot Mr. Crayton and fled.[21]

         III. Procedural Default (Claims 1 and 3)

         In Claim One, Griffin alleges that he was denied to the rights to due process of law, a fair trial, and to present a defense when the trial court failed to instruct the jury on the law pertaining to self-defense/justifiable homicide. In Claim Three, Griffin argues prosecutorial misconduct based on the prosecution vouching for the credibility of state witnesses and improperly attacking Griffin's credibility during closing arguments.

         Griffin raised these claims in his application for post-conviction relief. In addressing these clams, the state district court found that these claims were known to Griffin at the time of his direct appeal, but he failed to raise them. The Louisiana Fifth Circuit found no abuse of discretion in finding that Griffin was procedurally barred from raising the claims. In the last reasoned opinion, the Louisiana Supreme Court found that Griffin failed to show no lower court error.

         Generally, a federal court will not review a question of federal law decided by a state court if the decision of that state court rests on a state ground that is both independent of the federal claim and adequate to support that judgment. Coleman v. Thompson, 501 U.S. 722, 731-32 (1991); Glover v. Cain, 128 F.3d 900, 902 (5th Cir. 1997); Amos v. Scott, 61 F.3d 333, 338 (5th Cir. 1995) (citing Harris v. Reed, 489 U.S. 255, 260, 262 (1989)). This “independent and adequate state law” doctrine applies to both substantive and procedural grounds and to federal review of claims that are raised on either direct or habeas review. Amos, 61 F.3d at 338.

         Procedural default does not bar federal-court review of a federal claim in a habeas petition unless the last state court to render a judgment in the case has clearly and expressly indicated that its judgment is independent of federal law and rests on a state procedural bar. Harris, 489 U.S. at 263; Glover, 128 F.3d at 902. If a state court applies a procedural bar, but goes on to alternatively address the merits of the federal claim, the claim is still barred from federal review. See Harris v. Reed, 489 U.S. at 264 n. 10 (“[A] state court need not fear reaching the merits of a federal claim in an alternative holding. By its very definition, the adequate and independent state ground doctrine requires the federal court to honor a state holding that is a sufficient basis for the state court's judgment, even when the state court also relies on federal law. ... In this way, a state court may reach a federal question without sacrificing its interests in finality, federalism, and comity.”) (citations omitted); see also Fisher v. Texas, 169 F.3d 295, 300 (5th Cir. 1999).

         The state courts relied upon the provisions of Louisiana Code of Criminal Procedure articles 930.4(B) and (C), which provide independent and adequate state-law grounds to bar federal review of these claims. See Parks v. Cain, Civ. Action No. 12-0297, 2014 WL 505329, at *8 (E.D. La. Feb. 6, 2014) (Feldman, J.); Lewis v. Cain, Civil Action No. 09-3240, 2010 WL 4363546, at *9 (E.D. La. Aug. 19, 2010) (Chasez, MJ.), report and recommendation adopted, 2010 WL 4340795 (E.D. La. Oct. 21, 2010) (Feldman, J.); Hurd v. Cain, Civ. Action No. 09-3112, 2009 WL 3063354, at *7 (E.D. La. Sept. 23, 2009) (Lemmon, J.); Simmons v. Cain, Civ. Action No. 06-2130, 2008 WL 2185422, at *6 (E.D. La. May 20, 2008) (Berrigan, J.) (finding Article 930.4(B) and (C) independent and adequate to bar trial errors raised on post-conviction that were not raised at trial or on appeal); Monroe v. Cain, Civ. Action No. 05-0929, 2006 WL 5507856, at *8 (E.D. La. Oct. 17, 2006) (finding Article 930.4(B) and (C) independent and adequate to bar prosecutorial misconduct claims and others not raised at trial or on appeal), adopted as modified on other grounds by Monroe v. Cain, 05-0929, 2008 WL 818968, at *1 (E.D. La. Mar. 24, 2008) (Berrigan, J.). Here, the state-court ruling was based on Louisiana law setting forth the requirements for preservation and presentation of claims on post-conviction review. The ruling was independent of federal law and relied strictly on state procedural requirements.

         Moreover, the statutory grounds cited above qualify as an “adequate” procedural ground because the state rule is “firmly established and regularly followed.” Walker v. Martin, 562 U.S. 307, 316 (2011) (quoting Beard v. Kindler, 558 U.S. 53, 60 (2009)); see also Glover v. Cain, 128 F.3d at 902 (to be considered “adequate, ” the state procedural rule must be strictly or regularly followed and evenhandedly applied to the majority of similar cases). State procedural rules enjoy a presumption of adequacy when the state court expressly relies upon them in deciding not to review a claim, and the burden is on the petitioner to demonstrate otherwise. Glover, 128 F.3d at 902; Hughes v. Johnson, 191 F.3d 607, 614 (5th Cir. 1999). The state courts' reasons for dismissal of Griffin's claims were therefore independent of federal law and adequate to bar review of his claims in this Court.

         In order to overcome the procedural-default doctrine, Griffin must demonstrate “cause” for the default and prejudice resulting from the default, or show that the federal court's failure to review the defaulted claim will result in a fundamental miscarriage of justice. Amos v. Scott, 61 F.3d at 339 (citations omitted). To establish cause for a procedural default, a petitioner must demonstrate that some objective factor external to the defense impeded his efforts to comply with the state's procedural rule. Murray v. Carrier, 477 U.S. 478, 488 (1986). The mere fact that petitioner or his counsel failed to recognize the factual or legal basis for a claim, or failed to raise the claim despite recognizing it, does not constitute cause for a procedural default. Id. at 486.

         Griffin claims that the records were not timely sent on appeal to pursue Claim One.[22] The record shows that the Louisiana Fifth Circuit ordered the record to be supplemented to include the jury instructions.[23] Also, Griffin's pro se motion to supplement the record to include the complete transcripts of opening, closing and rebuttal arguments was granted.[24] According to Louisiana Fifth Circuit, the record was supplemented on August 27, 2014, and the jury instructions had been previously made part of the record during the first appeal.[25] Thereafter, on October 1, 2014, Griffin filed his pro se brief assigning 14 enumerated errors including a multitude of issues, but did not raise the jury instruction issue.[26] Given that the records Griffin needed to raise Claim One were available to him well in advance of the filing of his supplemental brief, he has not demonstrated cause for his procedural default of this claim.

         Griffin appears to attribute the procedural default of Claim Three to trial counsel's ineffective assistance. Ineffective assistance of counsel may in some circumstances serve as cause to overcome a procedural bar. See Murray, 477 U.S. at 489 “(where an ineffective assistance claim has independently been presented to state courts, it may be used to establish cause for a procedural default).” However, as will be discussed later in this report, Griffin's claim of ineffective assistance of counsel is without merit and does not constitute cause for his default of Claim Three.[27] Romero v. Collins, 961 F.2d 1181, 1183 (5th Cir. 1992); Bella v. Cain, Civ. Action No. 12-2323, 2015 WL 1311216, at *16 (E.D. La. Mar. 23, 2015); Arita v. Cain, Civ. Action No. 11-636, 2011 WL 4738666, at *11 (E.D. La. Aug. 25, 2011), adopted, 2011 WL 4738658 (E.D. La. Oct. 6, 2011), aff'd, 500 Fed.Appx. 352 (5th Cir. 2012).

         The Court's review of the record does not support a finding that any factor external to the defense prevented Griffin from raising the claims in a procedurally proper manner. Nor does the record reflect any action or inaction on the part of the State which prevented him from doing so. “Absent a showing of cause, it is not necessary for the court to consider whether there is actual prejudice.” Martin v. Maxey, 98 F.3d 844, 849 (5th Cir. 1996).

         A petitioner may avoid procedural bar only if a fundamental miscarriage of justice will occur if the merits of his claim are not reviewed. Hogue, 131 F.3d at 497 (citing Sawyer v. Whitley, 505 U.S. 333, 339 (1992)). To establish a fundamental miscarriage of justice, petitioner must provide this court with evidence that would support a “colorable showing of factual innocence.” Kuhlmann v. Wilson, 477 U.S. 436, 454 (1986); accord Murray v. Carrier, 477 U.S. 478, 496 (1986); Glover, 128 F.3d at 902. To satisfy this standard, a petitioner must “make a persuasive showing that he is actually innocent of the charges against him. Essentially, the petitioner must show that, as a factual matter, he did not commit the crime for which he was convicted.” Finley v. Johnson, 243 F.3d 215, 220 (5th Cir. 2001) (citations omitted). To show factual innocence, petitioner must establish a fair probability that, considering all of the evidence now available, the trier of fact would have entertained a reasonable doubt as to the defendant's guilt. Campos v. Johnson, 958 F.Supp. 1180, 1195 (W.D. Tex. 1997) (footnote omitted); see Nobles, 127 F.3d at 423 n. 33 (actual-innocence factor requires a showing by clear and convincing evidence that, “but for constitutional error, no reasonable factfinder would have found the applicant guilty of the underlying offense.”).

         Griffin points to no new evidence that would show his actual innocence of the crimes for which he was convicted. While he claims that the Dr. Garcia's testimony supported a claim of self-defense, his claims were presented to the jury and resolved against him. Thus, Griffin has failed to overcome the procedural bar to Claims One and Three, and the foregoing claims should be dismissed with prejudice as procedurally barred.

         IV. Standards of Review on the Merits

         Title 28 U.S.C. § 2254(d)(1) and (2), as amended by The Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), provides the applicable standards of review for pure questions of fact, pure questions of law, and mixed questions of both. A state court's purely factual determinations are presumed to be correct and a federal court 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.” 28 U.S.C. § 2254(d)(2); see also 28 U.S.C. § 2254(e)(1) (“In a proceeding instituted by an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State court, a determination of a factual issue made by a State court shall be presumed to be correct. The applicant shall have the burden of rebutting the presumption of correctness by clear and convincing evidence.”). With respect to a state court's determination of pure questions of law or mixed questions of law and fact, a federal court must defer to the decision on the merits of such a claim unless that decision “was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States.” 28 U.S.C. § 2254(d)(1).

         The “ ‘contrary to' and ‘unreasonable application' clauses [of § 2254(d)(1) ] have independent meaning.” Bell v. Cone, 535 U.S. 685, 694 (2002). A state-court decision is “contrary to” clearly established precedent if the state court applies a rule that contradicts the governing law set forth in the United States Supreme Court's cases or if the state court confronts a set of facts that are materially indistinguishable from a decision of the United States Supreme Court and nevertheless arrives at a result different from United States Supreme Court precedent. Williams v. Taylor, 529 U.S. 362, 405-06 (2000); Wooten v. Thaler, 598 F.3d 215, 218 (5th Cir.), cert. denied, 131 S.Ct. 294 (2010). An “unreasonable application” of [United States Supreme Court] precedent occurs when a state ...


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