United States District Court, W.D. Louisiana, Shreveport Division
REPORT AND RECOMMENDATION
L. Hornsby U.S. Magistrate Judge
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.
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
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.
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.
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).
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
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.
IAC by Washington during State Habeas
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.
De Novo Standard Applies
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.
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).
IAC in a ...