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Coleman v. Warden David Wade Correctional Center

United States District Court, W.D. Louisiana, Shreveport Division

May 29, 2019

JEREMY COLEMAN #508707
v.
WARDEN DAVID WADE CORRECTIONAL CENTER

          WALTER JUDGE

          REPORT AND RECOMMENDATION

          Mark L. Hornsby U.S. Magistrate Judge

         Introduction

         Jerome and Keisha Avery agreed to sell a large amount of marijuana that they delivered to a home in the Cedar Grove neighborhood in Shreveport. Jeremy Coleman (“Petitioner”) and two other men were waiting at the house to rob them of the marijuana. Jerome escaped the robbery with his life, but Keisha was shot seven times with two different firearms. She died from the injuries, which included one shot through her head. Petitioner admitted that he participated in the robbery but denied that he possessed a weapon.

         Petitioner was charged with second-degree murder, which carries a mandatory sentence of natural life imprisonment. Attorney Kammi Whatley was appointed to represent Petitioner. After three days of jury selection, Ms. Whatley negotiated a plea agreement that called for Petitioner to plead guilty to manslaughter (which carries a maximum 40-year sentence) and plead guilty to being a second felony offender (which increased the sentencing exposure to a range of 20 to 80 years), with an agreed sentence of 50 years without benefit of probation or suspension of sentence. The sentence did not prohibit parole, so Petitioner could potentially be released in much less than 50 years with the benefit of good time and parole. The State also agreed to dismiss another felony charge that was pending against Petitioner. Petitioner entered the guilty plea and received the agreed 50-year sentence.

         Petitioner later retained attorney Alex Washington to file a post-conviction application and assert claims that Ms. Whatley rendered ineffective assistance of counsel (“IAC”). Washington filed some proceedings in state court, though not in accordance with Petitioner's instructions, and eventually withdrew from the case. Petitioner completed the state court proceedings pro se and then filed this federal petition.

         Petitioner's federal petition anticipated that he faced timeliness and procedural bar issues, so he first argued that attorney Washington provided IAC in the post-conviction proceedings so that, under Martinez v. Ryan, 132 S.Ct. 1309 (2012) and Trevino v. Thaler, 133 S.Ct. 1911 (2013), Washington's IAC in the state habeas proceedings excused Petitioner's failure to properly present his underlying IAC claims against trial attorney Whatley.

         This court originally denied the habeas petition on the grounds that the IAC claims regarding Whatley's performance were unexhausted; Petitioner raised them for the first time in a filing with the Supreme Court of Louisiana. The Fifth Circuit reversed and remanded. It held that Petitioner's IAC claims against Whatley are procedurally defaulted, but Petitioner can benefit from the Martinez/Trevino exception to the procedural default rule if he can show that he has a substantial IAC claim against Whatley and he received IAC from Washington during the state post-conviction process. The case was remanded to this court to “conduct proceedings as needed” and decide whether Petitioner had satisfied the remaining two requirements to show cause for his procedural default under Martinez/Trevino. Coleman v. Goodwin, 833 F.3d 537 (5th Cir. 2016).

         This court ordered (Doc. 19) the State to respond to the petition, and it filed a copy of the state court record and a memorandum in response to the petition. Petitioner was afforded time to file a reply, but he did not. He did enroll counsel to represent him. For the reasons that follow, it is recommended that the federal habeas petition be denied on the merits.

         Petitioner's Claims

         Petitioner argues that Whatley committed IAC because she: (1) failed to move for a continuance or withdraw; (2) failed to contact two alibi witnesses and investigate the case before advising him to plead guilty; (3) failed to move to suppress Petitioner's confession, and failed to advise Petitioner, before the guilty plea, that the motion to suppress would be meritorious; (4) failed to advise Petitioner that he would be presumed innocent and that the State had the burden to prove his guilt at trial; and (5) advised Petitioner that, if he refused the plea offer, he would be convicted and sentenced to life imprisonment.

         Petitioner's Burden

         A. IAC by Washington during State Habeas

         Petitioner argues that attorney Washington committed IAC by not properly pursuing the post-conviction process. Those claims need to be analyzed only to determine whether Petitioner has demonstrated cause under Martinez to excuse his procedural defaults and allow the presentation of his IAC claims against Whatley on the merits. The court need not address whether Washington committed IAC that constitutes cause if the underlying claims against Whatley fail on the merits. King v. Davis, 883 F.3d 577, 585 (5th Cir. 2018) (electing to ignore the procedural bar and cut to the “core of the case, ” the merits of the underlying IAC claims); Glover v. Hargett, 56 F.3d 682, 684 n.1 (5th Cir. 1995); Rubens v. Cain, 2016 WL 8739197 n. 43 (E.D. La. 2016). After review of the record, the undersigned has determined that a direct review of the merits affords a more efficient means of resolving this petition.

         B. De Novo Standard Applies

         When a claim has been “adjudicated on the merits in state court, ” the federal court shall not grant habeas relief unless the state court's adjudication of the claim was contrary to or involved an unreasonable application of clearly established federal law as determined by the Supreme Court or was based on an unreasonable determination of the facts. 28 USC § 2254(d). But Petitioner's claims were not adjudicated on the merits in state court.

         The claims presented in this federal petition were raised in state court only in the application to the Supreme Court of Louisiana. The Fifth Circuit held on the earlier appeal that the Supreme Court's denial was “on procedural grounds rather than on the merits.” Coleman, 833 F.3d at 541. For claims that are not adjudicated on the merits in the state court, the federal court applies a de novo standard when assessing the claims. King, 883 F.3d at 585-86; Hoffman v. Cain, 752 F.3d 430, 438 (5th Cir. 2014).

         C. IAC in a ...


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