Andrews v. McCain et al, No. 2:2017cv14665 - Document 18 (E.D. La. 2019)

Court Description: ORDER AND REASONS ADOPTING REPORT AND RECOMMENDATIONS 14 - IT IS ORDERED that Petitioner Charles Andrews's petition for issuance of a writ of habeas corpus under 28 U.S.C. § 2254 be and hereby is DISMISSED WITH PREJUDICE. Signed by Judge Susie Morgan.(bwn)
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Andrews v. McCain et al Doc. 18 U N ITED S TATES D ISTRICT COU RT EASTERN D ISTRICT OF LOU ISIAN A CH ARLES AN D REW S, Plain tiff CIVIL ACTION VERSU S N O. 17-14 6 6 5 W .S. SAN D Y MCCAIN , D e fe n d an t SECTION "E"( 4 ) ORD ER AN D REAS ON S Before the Court is a Report and Recom m endation issued by Chief Magistrate J udge Karen Wells Roby recom m ending Petitioner Charles Andrews’s petition for federal habeas corpus relief be dism issed with prejudice. 1 Petitioner objected to the m agistrate judge’s Report and Recom m endation. 2 For the reasons that follow, the Court AD OPTS the Report an d Recom m endation as its own, and hereby D EN IES Petitioner’s application for relief. BACKGROU N D Petitioner is an inm ate currently incarcerated in the Raym ond Laborde Correctional Center in Cottonport, Louisiana. 3 On April 15, 20 0 9, Petitioner was charged by Bill of Inform ation in Orleans Parish with attem pted first degree m urder. 4 Petitioner was tried before a jury on March 17 and 18, 20 10 , and found guilty as charged. 5 On May 14, 20 10 , the state trial court sentenced Petitioner to fifty years in prison without benefit of parole, probation, or suspension of sentence. 6 During the pen dency of Petitioner’s 1 R. Doc. 14. R. Doc. 15. 3 R. Doc. 1. 4 St. Rec. Vol. 1 of 5, Bill of Inform ation , 4/ 15/ 0 9. 5 St. Rec. Vol. 1 of 5, Trial Minutes, 3/ 17/ 10 ; Trial Minutes, 3/ 18/ 10 ; St. Rec. Vol. 4 of 5, Trial Transcript, 3/ 17-18/ 10 ; J ury Charge Transcript, 3/ 18/ 10 ; St. Rec. Vol. 3 of 5, J ury Verdict Form , 3/ 18/ 10 . 6 St. Rec. Vol. 1 of 5, Sentencing Minutes, 5/ 14/ 10 ; St. Rec. Vol. 4 of 5, Sentencin g Transcript, 5/ 14/ 10 . The 2 1 Dockets.Justia.com direct appeal, the trial court was ordered to rule on Petitioner’s m otion for post-verdict judgm ent of acquittal, which the trial court denied on October 22, 20 10 . 7 On February 16, 20 11, the Louisiana Fourth Circuit affirm ed the conviction, but rem anded the m atter for resentencing based on the trial court’s failure to tim ely rule on the motion for post-verdict judgm ent of acquittal. 8 The trial court com plied and on April 21, 20 11, resentenced Petitioner to fifty years in prison without benefit of parole, probation, or suspension of sentence. 9 On Septem ber 23, 20 11, the Louisiana Suprem e Court denied Petitioner’s writ application. 10 Petitioner did not file a writ application with the United States Suprem e Court. 11 On Septem ber 21, 20 12, Petitioner, through new counsel, filed an application for post-conviction relief with the state court asserting three in effective assistance of counsel grounds for relief. 12 The state trial court found one of the claim s of ineffective assistan ce of counsel to be barred from post-conviction review, citing La. Code Crim . P. art. 930 .3. 13 The trial court held evidentiary hearings on the rem ain ing two claim s. 14 On Novem ber 19, 20 15, the trial court denied relief on the rem aining claim s, finding them to be m eritless under Strickland v. W ashington, 466 U.S. 668 (1984). 15 On April 12, 20 16, the Louisiana record includes num erous references to a m ultiple bill and related hearings. The record, however, does not include a copy of the m ultiple bill or a m inute entry or order related to any resentencin g related to the m ultiple bill. 7 St. Rec. Vol. 4 of 5, Trial Court Order, 10 / 22/ 10 ; 4th Cir. Order, 20 10 -KA-10 20 , 9/ 17/ 10 ; St. Rec. Vol. 3 of 5, Motion for Post-Verdict J udgm ent of Acquittal, 4/ 6/ 10 . 8 State v. Andrew s, 61 So.3d 121, 121 (La. App. 4th Cir. 20 11); St. Rec. Vol. 4 of 5, 4th Cir. Opin ion, 20 10 KA-10 20 , 2/ 16/ 11. 9 St. Rec. Vol. 1 of 5, Sentencing Minutes, 4/ 21/ 11. 10 State v. Andrew s, 69 So.3d 1156 (La. 20 11); St. Rec. Vol. 5 of 5, La. S. Ct. Order, 20 11-KO-0 458, 9/ 23/ 11; La. S. Ct. Writ Application , 11-KO-0 458, 3/ 4/ 11; St. Rec. Vol. 4 of 5, La. S. Ct. Letter, 20 11-KO-458, 3/ 4/ 11. 11 R. Doc. 14 at 4. 12 St. Rec. Vol. 3 of 5, Application for Post-Conviction Relief, 9/ 21/ 12. 13 St. Rec. Vol. 3 of 5, Trial Court Ruling, 3/ 19/ 13; State’s Objections, 2/ 28/ 13; St. Rec. Vol. 1 of 5, Minute Entry, 3/ 19/ 13. 14 St. Rec. Vol. 1 of 5, Minute Entry, 11/ 8/ 13; Minute Entry, 8/ 22/ 14; St. Rec. Vol. 2 of 5, State’s Opposition, 9/ 19/ 14; Hearin g Transcript, 11/ 8/ 13; Hearing Transcript, 8/ 22/ 14. 15 St. Rec. Vol. 2 of 5, Trial Court Ruling, 11/ 19/ 15; St. Rec. Vol. 1 of 5, Minute Entry, 11/ 19/ 15. 2 Fourth Circuit denied Petitioner’s writ application. 16 The Louisiana Suprem e Court also denied Petitioner’s subsequent writ application on October 27, 20 17, pursuant to Strickland. 17 On Decem ber 5, 20 17, Petitioner, through counsel, filed the instant federal petition for habeas corpus relief in which he asserts he was denied effective assistance of counsel because his pretrial counsel 18 failed to file a m otion to suppress eviden ce, nam ely the m ail seized from Petitioner’s girlfriend’s form er residen ce without a warrant or consent. 19 The State filed a response in opposition to Petitioner’s federal petition. 20 The State concedes the tim eliness of the petition 21 and asserts Petitioner’s claim is without m erit. 22 AN ALYSIS I. Sta n d ard o f Re vie w In reviewing the m agistrate judge’s Report and Recom m endations, the Court m ust conduct a de novo review of any of the m agistrate judge’s conclusions to which a party has specifically objected. 23 As to the portions of the report that are not objected to, the Court needs only review those portions to determ ine whether they are clearly erroneous or contrary to law. 24 16 St. Rec. Vol. 5 of 5, 4th Cir. Order, 20 16-K-0 0 55, 4/ 12/ 16; 4th Cir. Writ Application , 20 16-K-0 0 55, 1/ 14/ 16. 17 State v. Andrew s, 228 So.3d 20 1 (La. 20 17); St. Rec. Vol. 5 of 5, La. S. Ct. Order, 20 16-KP-0 876, 10 / 27/ 16; La. S. Ct. Writ Application , 16-KP-876, 5/ 10 / 16. 18 Petitioner’s pretrial counsel withdrew before trial. R. Doc. 14 at 13. Petitioner is currently represented by other counsel. 19 R. Doc. 1 at 6. 20 R. Doc. 12. 21 The State concedes tim elin ess and outlin es the efforts Petitioner m ade to exhaust state court review of his claim . R. Doc. 12. As Chief Magistrate J udge Roby found, “[t]he record does not reflect that [Petitioner’s] claim is in procedural default.” R. Doc. 14 at 6. Accordingly, the Court will proceed to substantive review of Petitioner’s claim . 22 R. Doc. 12. 23 See 28 U.S.C. § 636(b)(1) (“[A] judge of the court shall m ake a de novo determ in ation of those portions of the report or specified proposed findings or recom m endations to which an objection is m ade.”). 24 Id. 3 Under the Anti-Terrorism and Effective Death Penalty Act of 1996 (“AEDPA”), a state court's purely factual determ inations are presum ed to be correct and a federal court will give deference to the state court's decision unless it “was based on an unreasonable determ ination of the facts in light of the evidence presented in the State court proceeding.”25 A federal court m ust defer to the decision of the state court on the m erits of a pure question of law or a m ixed question of law and fact unless that decision “was contrary to, or involved an unreasonable application of, clearly established Federal law, as determ in ed by the Suprem e Court of the United States.”26 A state court's decision is contrary to clearly established federal law if: “(1) the state court applies a rule that contradicts the governing law announced in Suprem e Court cases, or (2) the state court decides a case differently than the Suprem e Court did on a set of m aterially indistinguishable facts.”27 The AEDPA requires that a federal court “accord the state trial court substantial deference.”28 II. In e ffe ctive As s is tan ce o f Co u n s e l In Strickland v. W ashington, the Suprem e Court established a two-pronged test for evaluating claim s of ineffective assistance of counsel. Specifically, a petitioner seeking relief m ust dem onstrate both: (1) counsel's perform ance was deficient an d (2) the deficient perform ance prejudiced his defense. 29 A petitioner bears the burden of proof on such a claim and “m ust dem onstrate, by a preponderance of the evidence, that his counsel was ineffective.”30 “[A] court m ust indulge a strong presum ption that counsel's conduct 25 28 U.S.C. § 2254(d)(2) Id. § 2254(d)(1). 27 W illiam s v. Tay lor, 529 U.S. 362, 40 5– 0 6 (20 0 0 ). 28 Brum field v. Cain , 135 S. Ct. 2269 (20 15). 29 Strickland v. W ashington, 466 U.S. 668 , 697 (1984). 30 Jernigan v. Collins, 980 F.2d 292, 296 (5th Cir. 1993); see also Clark v. Johnson, 227 F.3d 273, 284 (5th Cir. 20 0 0 ). 26 4 falls within the wide range of reasonable professional assistance; that is, the defen dant m ust overcom e the presum ption that, under the circum stances, the challenged action “m ight be considered sound trial strategy.”31 To prevail on the deficiency prong of the Strickland test, a petitioner m ust dem onstrate that coun sel's conduct fails to m eet the constitutional m inim um guaranteed by the Sixth Am endm ent. 32 “Counsel's perform ance is deficient if it falls below an objective standard of reasonableness.”33 Analysis of counsel's perform ance m ust consider the reasonablen ess of counsel's actions in light of all the circum stances. 34 “[I]t is necessary to ‘judge . . . counsel's challenged conduct on the facts of the particular case, viewed as of the tim e of counsel's conduct.’”35 A petitioner m ust overcom e a strong presum ption that the conduct of his counsel falls within a wide range of reasonable representation. 36 To prevail on the prejudice prong of the Strickland test, a petitioner “m ust show that there is a reason able probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.”37 In this context, a reasonable probability is “a probability sufficient to underm in e confidence in the outcom e.”38 In m aking a determ ination as to whether prejudice occurred, courts m ust review the record to determ ine “the relative role that the alleged trial errors played in the total context of [the] trial.”39 If a court finds that a petitioner has m ade an insufficient showing as to either 31 Strickland, 466 U.S. at 689. See Sty ron v . Johnson, 262 F.3d 438, 450 (5th Cir. 20 0 1). 33 Little v. Johnson, 162 F.3d 855, 860 (5th Cir. 1998). 34 See Strickland, 466 U.S. at 689. 35 Lockhart v. Fretw ell, 50 6 U.S. 364, 371 (1993) (quoting Strickland, 466 U.S. at 690 ). 36 See Crockett v. McCotter, 796 F.2d 787, 791 (5th Cir. 1986); Mattheson v. King, 751 F.2d 1432, 1441 (5th Cir. 1985). 37 Strickland, 466 U.S. at 694. 38 Id. 39 Crockett, 796 F.2d at 793. 32 5 of the two prongs of inquiry, i.e., deficient perform ance or actual prejudice, it m ay dispose of the ineffective assistance claim without addressing the other prong. 40 The Suprem e Court has clarified that, in applying Strickland on habeas review, “[t]he question is whether an attorney’s representation am ounted to incom peten ce under ‘prevailing professional norm s,’ not whether it deviated from best practices or m ost com m on custom .”41 Accordingly, a high level of deference is owed to a state court’s findings under Strickland in light of AEDPA standards of review: “[t]he standards created by Strickland and §2254(d) are both highly deferential, and when the two apply in tandem , review is doubly so.”42 Because scrutiny of counsel’s perform ance under § 2254(d) is “doubly deferential,”43 federal courts m ust take a “highly deferential” look at counsel’s perform ance under the Strickland standard through the “deferential lens of § 2254(d).”44 Petitioner asserts he received ineffective assistance of counsel during his state court trial, arguing as follows: A m otion to supress [sic] evidence was never filed by trial counsel. Trial counsel failed to preserve a significant issue by not objecting to evidence being produced. In this case, a New Orleans police officer conducted a search, without consent or a warrant, of occupied non-abandoned property, where the defendant resided, of a residence in J efferson Parish (which was outside of the Orleans parish officer’s jurisdiction, and seized U.S. Mail, which is a crim e on its own. This is ineffective assistance as the police officer had no legal right to enter the property, and had trial counsel been effective this issue would have been litigated and led to a different outcom e. 45,46 Petitioner previously asserted these argum ents in his state court application for post- 40 Strickland, 466 U.S. at 697. v. Richter, 562 U.S. 86, 10 3 (20 11). 42 Id. at 10 5 (internal quotations m arks and citations om itted). 43 Cullen v. Pinholster, 563 U.S. 170 , 190 (20 11) (quotin g Know les v. Mirzay ance, 556 U.S. 111, 112 (20 0 9)). 44 Id. (citing Strickland, 466 U.S. at 689, and quotin g Kn ow les, 556 U.S. at 121 n .2). 45 R. Doc. 1 at 6. 46 The m agistrate judge notes the item was not itself “m ail” but a notice the U.S. Postal Service had attem pted to deliver m ail to Petitioner. R. Doc. 14 at 14-15. 41 Harrington 6 conviction relief. For the sake of clarity, the Court sum m arizes the pertinent state court pretrial proceedings concerning the m ail receipt. On J uly 9, 20 0 9, at the hearing held before Petitioner’s trial, the following occurred: 1) The investigating officer testified 47: a. after the victim was released from the hospital, he showed them the house where he m et Petitioner 48 ; b. the officers learned from the landlord that the tenants had recently m oved out, and the electricity was turned off, and the house appeared abandoned 49 ; c. the lessee had been Geralyn McGee, who owned the cell phone the victim used to call Petitioner 50 ; d. the officers also saw a m ail delivery notice from the postal service stuck to the door and addressed to Charles Andrews, which they did not seize right away, but rather at a later tim e while the residence was still unoccupied. 51 2) Petitioner’s pretrial counsel questioned the investigating officer about the house and the m ail delivery notice that was retrieved, how he obtained the address of the residence, and the identity of the person who owned the cell phone num ber used to link the house to Petitioner 52 ; 3) At the conclusion of the hearing, the trial court held that no m otion to suppress 47 Sim ilar testim ony was given by the officer during trial. St. Rec. Vol. 4 of 5, Trial Transcript, p. 50 -52, 3/ 1718/ 10 . 48 St. Rec. Vol. 4 of 5, Hearin g Transcript, p. 7, 7/ 9/ 0 9. 49 St. Rec. Vol. 4 of 5, Hearin g Transcript, pp. 8 , 9, 7/ 9/ 0 9. 50 St. Rec. Vol. 4 of 5, Hearin g Transcript, pp. 7, 9, 7/ 9/ 0 9. 51 St. Rec. Vol. 4 of 5, Hearin g Transcript, pp. 8 , 20 , 7/ 9/ 0 9. 52 St. Rec. Vol. 4 of 5, Hearin g Transcript, pp. 20 -23, 7/ 9/ 0 9. 7 evidence would lie. 53 After the evidentiary hearings, the trial court held the following: 1) When police arrived at the address obtained through inform ation provided by the victim , the residence appeared abandoned and the electricity was disconnected; 2) The landlord confirm ed to police that the ten ant, Petitioner’s girlfriend, had previously m oved out; 3) Petitioner had no right of privacy at his girlfriend’s form er residence, especially considering that neither the girlfriend nor Petitioner lived at the residence when the police seized the m ail receipt; 4) The m ail receipt was found in plain view and there were no grounds shown for its suppression; 5) Petitioner failed to prove that his counsel acted deficiently or that the outcome of the trial would have been different had counsel filed a m otion to suppress, as required under Strickland. 54 Following this, the Louisiana Suprem e Court also found that Petitioner failed to m eet his burden of proof under Strickland. 55 On post-conviction review, Petitioner challenged his pretrial counsel’s perform ance for not filing a m otion to suppress. At the post-conviction evidentiary hearing, the following occurred: 1) Petitioner’s pretrial counsel was questioned about the pretrial hearing and the questions he asked during that hearing to the investigating officer, with specific focus on the abandoned residence and the m ail delivery notice. 56 2) Petitioner’s pretrial counsel testified: a. his m ain focus at the tim e was on the suppression of the identification m ade by 53 St. Rec. Vol. 4 of 5, Hearin g Transcript, p. 37, 7/ 9/ 0 9. St. Rec. Vol. 2 of 5, Trial Court Ruling, 11/ 19/ 15; St. Rec. Vol. 1 of 5, Minute Entry, 11/ 19/ 15. 55 State v. Andrew s, 228 So.3d 20 1 (La. 20 17); St. Rec. Vol. 5 of 5, La. S. Ct. Order, 20 16-KP-0 876, 10 / 27/ 16; La. S. Ct. Writ Application , 16-KP-876, 5/ 10 / 16. 56 St. Rec. Vol. 2 of 5, Hearin g Transcript, 11/ 8/ 13. 54 8 the victim , which was done before the m ail notice was seized 57; b. he recalled having overall concerns with the investigation and developm ent of Petitioner as a suspect, but nothing in particular with the m ail notice 58 ; c. the record showed the detective did speak with the owner of the property and Petitioner and his girlfriend no longer lived in the residence when the detective was on the property 59 ; d. he enrolled in the case after pretrial m otions had concluded and did not file any further pretrial m otions. 60 After the post-conviction evidentiary hearings, the trial court held Petitioner failed to establish he had any privacy rights at the abandoned residence or in the m ail delivery notice stuck in the door of the abandoned residence and, as a result, Petitioner’s pretrial counsel had no grounds to challenge the taking of that m ail notice in a m otion to suppress. 61 Petitioner has failed to dem onstrate the state courts’ decision was contrary to or an unreasonable application of Strickland. Applying the Strickland standards, the record dem onstrates Petitioner’s pretrial counsel m ade a strategic decision to push forward on the m otion to suppress the identification m ade by the victim and, after hearing the testim ony of the officer at the pretrial hearing, m ade a sound, strategic choice to argue the m otion to suppress the identification and not to pursue a m otion to suppress the m ail delivery notice. Even if Petitioner’s pretrial counsel thought he should have filed m ore m otions in retrospect, Strickland requires courts to judge counsel's challenged conduct “viewed as of the tim e of counsel's conduct.’”62 As Petitioner’s pretrial counsel testified, the pretrial testim ony by the 57 St. Rec. Vol. 2 of 5, Hearin g Transcript, 8/ 22/ 14. Id. 59 Id. 60 Id. 61 St. Rec. Vol. 2 of 5, Trial Court Ruling, 11/ 19/ 15. 62 Lockhart, 50 6 U.S. at 371 (quoting Strickland, 466 U.S. at 690 ). 58 9 detective revealed nothing that would have called for suppression of the m ail delivery notice taken from the em pty residence. 63 Chief Magistrate J udge Roby found, and this Court agrees: “[a]s determ ined by the state courts, the record discloses no basis for [Petitioner’s] counsel to have filed a m otion to suppress in this case.”64 Because counsel is not ineffective for failing to “‘m ake futile m otions or objections,’”65 Petitioner is unable to overcom e a strong presum ption that the conduct of his pretrial counsel falls within a wide range of reasonable representation. 66 Petitioner has failed to establish the state courts’ denial of relief on this issue was contrary to or an unreasonable application of Strickland, and accordingly Petitioner is not entitled to relief on this issue. The Court, having considered the record, the applicable law, relevant filings, and the m agistrate judge’s Report and Recom m endation finds the m agistrate judge’s findings of fact and conclusions of law are correct and hereby approves the United States Magistrate J udge’s Report and Recom m endation and AD OPTS it as its opinion in this m atter. 67 CON CLU SION IT IS ORD ERED that Petitioner Charles Andrews’s petition for issuance of a writ of habeas corpus under 28 U.S.C. § 2254 be and hereby is D ISMISSED W ITH PREJU D ICE. N e w Orle a n s , Lo u is ian a, th is 12 th d ay o f Au gu s t, 2 0 19 . _____________________ _______ SU SIE MORGAN U N ITED S TATES D ISTRICT JU D GE 63 St. Rec. Vol. 2 of 5, Hearin g Transcript, 8/ 22/ 14. R. Doc. 14 at 15. 65 Johnson v. Cockrell, 30 6 F.3d 249, 255 (5th Cir. 20 0 2) (quoting Koch v. Puckett, 90 7 F.2d 524, 527 (5th Cir. 1990 )). 66 See Crockett, 796 F.2d at 791; Mattheson, 751 F.2d at 1441. 67 R. Doc. 14. 64 10