Loiseau v. Clarke, No. 3:2012cv00580 - Document 24 (E.D. Va. 2013)
Court Description: MEMORANDUM OPINION. Signed by District Judge Robert E. Payne on 7/25/13. Copy sent: Yes(tdai, )
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Loiseau v. Clarke Doc. 24 IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF VIRGINIA Richmond Division MICHAEL LOISEAU, Petitioner, v. Civil Action No. HAROLD W. 3:12CV580 CLARKE, Respondent. MEMORANDUM OPINION Michael brings Loiseau, petition this Virginia pursuant challenging his Petition") Spotsylvania dismiss, a County prisoner to 28 U.S.C. convictions ("Circuit proceeding in Court'7) . § 2254 the pro (§ se, 2254 Circuit Court Respondent moves of to inter alia, on the ground that the one-year statute of limitations governing Petition. Loiseau federal has habeas responded. petitions The bars matter the is § 2254 ripe for disposition. I. A. PROCEDURAL HISTORY State Proceedings Loiseau pled guilty during a jury trial to drug kingpin and racketeering charges. On March 10, 2010, the Circuit Court entered final judgment and sentenced Loiseau to life plus twenty years with Loiseau, all Nos. 10, 2010). but twenty years suspended. CR09-110 and CR09-669, at 1-5 Commonwealth (Va. Cir. v. Ct. Mar. Loiseau filed no appeal. Dockets.Justia.com On March 6, 2012, Loiseau filed a petition for a writ of habeas corpus in the Supreme Court of Virginia raising several claims of ineffective assistance of Habeas Corpus 1, of counsel. Loiseau v. Dir. of the 120378 {Va. filed Mar. 6, 2012). Court of Virginia Loiseau v. Dir. dismissed Petition for Writ Dep't of Corr., No. On August 2, 2012, the Supreme Loiseau's petition on of the Dep't of Corr., No. 120378 the merits. (Va. Aug. 2, 2012) . B. Federal On August 6, this Court. Habeas Petition 2012,1 Loiseau filed his § 2254 Petition in In his § 2254 Petition, Loiseau argues that trial counsel rendered ineffective assistance by: Claim One: Failing to object to new evidence during trial (Mem. Supp. § 2254 Pet. (ECF No. 3) 7); Claim Two: Failing to ''follow the strategy to recross examine" a witness (id. at 8);2 Claim Three: Failing to object to the Commonwealth's "editing of a recorded drug transaction" Claim Four: (id. Abandoning his at 9); client at trial (id. at 10) ; Claim Five: Failing to investigate the grand jury (id. at 11); and, 1 The Court deems the § 2254 Petition filed on the date that Loiseau swears that he placed the petition in the prison mailing system. See Houston v. Lack, 487 U.S. 266, 276 (1988). The Court corrects the capitalization in the quotations from Loiseau's submissions. Claim Six: Failing motion to (id. II. A. argue a probable cause at 13) . ANALYSIS Statute Of Limitations Respondent contends that the federal statute of limitations bars Loiseau's Effective claim. Death Section Penalty Act 101 of ("AEDPA") the Antiterrorism amended 28 U.S.C. and § 2244 to establish a one-year period of limitation for the filing of a petition for pursuant to U.S.C. 1. a writ the § 2244(d) of habeas judgment of a corpus state by a person court. in custody Specifically, now reads: A 1-year period of limitation shall apply to an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State court. The limitation period shall run from the latest of- (A) the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review; (B) the date on which the impediment to filing an application created by State action or in laws violation of the of the United Constitution States is removed, if the applicant was prevented from filing by such State action; (C) the date on which the constitutional right asserted was initially recognized by the Supreme Court, if the right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review; (D) or the date on which the factual predicate of the claim or claims presented could 28 have been discovered through exercise of due diligence. 2. The time during which a the properly filed application for State post-conviction or other collateral review with respect to the pertinent judgment or claim is pending shall not be counted toward any period of limitation under this subsection. 28 U.S.C. § 2244(d). B. Commencement And Running Of The Statute Of Limitations Loiseau's judgment became final on Friday, the last day Virginia. ("[T]he to Hill file v. one-year an appeal Braxton, 277 limitation April with the Court F.3d 701, 704 period begins 9, 2010, of Appeals (4th Cir. running when of 2002) direct review of the state conviction is completed or when the time for seeking direct review § 2244(d)(1)(A))); Va. has expired Sup. Ct. R. . . 5A:6(a) . ." 28 (requiring notice of appeal to be filed thirty days after entry of final The U.S.C. limitation period began to run on April 10, judgment). 2010, and 696 days elapsed before Loiseau filed his state petition for a writ of habeas corpus on Tuesday, March 6, 2012. See 28 U.S.C. § 2244(d)(2).3 3 The Court notes that the Circuit Court entered an Amended Conviction/Sentencing Order on July clerical error in the March 10, 26, 2010, that 2010 final judgment. assuming arguendo that this amended order serves as final judgment, Loiseau's § 2254 Petition corrected a Even the date of remains untimely. Loiseau's conviction would have become final on August 25, 2010, and his time to file his § 2254 Petition would have expired on August 25, 2011. C. Statutory Tolling Though Loiseau filed a petition for a writ of habeas corpus in the Supreme statute of Court of limitations Virginia on March expired on April 6, 10, 2012, the AEDPA nearly Thus, year before Loiseau filed his state petition. 2011, one because the limitation period had expired, statutory tolling fails to apply. Deville v. Johnson, (E.D. Va. Jan. 1256, 1259 limitation equitable 12, (11th demonstrates No. 1:09cv72(CMH/TRJ) , 2010 WL 148148, 2010) Cir. 2000)). entitlement period (citing the 28 v. Moore, Accordingly, to either a under tolling, Webster of 199 unless F.3d Loiseau belated commencement of the U.S.C. statute at *2 § 2244(d)(1)(B)-(D) limitations bars his or § 2254 Petition. Neither Loiseau nor the record suggests any plausible basis equitable for tolling or a belated MOTIONS commencement of the TO AMEND limitation period. III. On February 15, 2013 and May 31, 2013, Loiseau Motions for Leave to Amend his § 2254 Petition. 22.) Loiseau seeks to add two claims that (ECF Nos. the U.S. 83 (1963). While the Court believes the 19, Commonwealth suppressed material evidence in violation of Brady v. 373 filed Maryland, statute of limitations bars Loiseau's new claims just as it bars his § 2254 Petition, see Ingram v. 2011 WL 1792460, Buckingham Corr. at *1 (E.D. Va. May 5, Ctr., No. 3:09CV831, 2011) (citing United States v. of the Pittman, evident 209 F.3d 314, lack of merit 317 of (4th Cir. 2000)), because the Brady claims, the Court addresses the merits of Loiseau's new claims. Brady and conviction its and progeny order a "require [ new ] trial a if court it to vacate finds that prosecution suppressed materially exculpatory evidence." States v. obtain King, relief existence of 628 F.3d 693, under Brady evidence 701 a (4th Cir. litigant favorable to must the the government suppressed the evidence; the suppression was material." 323 F.3d 286, 299 evidence is (4th Cir. material probability'" of a (2) show the that demonstrate that 2003)). Under the Brady analysis, if different it generates result 2008) United likely (3) In order to identify accused; and United (citing Monroe v. Angelone, Moseley v. Branker, (1985)). "(1) the Id. been disclosed. (quoting 2011). a States v. at a trial "'reasonable had 550 F.3d 312, Bagley, 473 the 318 evidence (4th Cir. U.S. 667, 682 "'The question is not whether the defendant would more than evidence, not have received a different verdict with the but whether in its absence he received a fair trial, understood as confidence.'" a Id. trial resulting in a verdict (quoting Kyles v. Whitley, worthy 514 U.S. 419, of 434 (1995)). Here, Loiseau pled racketeering charges, Commonwealth presented guilty to the drug kingpin and in the midst of a jury trial, after the numerous witnesses and evidence. The Court recognizes that in the context of a guilty plea, Brady may have no applicability. 263, 285 (4th Cir. See United States v. Moussaoui, 2010) (explaining however, is a trial right. fairness of a trial verdict innocent Assuming person would be that the . . . and exists and to minimize found guilty") 591 F.3d "Brady right, to preserve the the chance that (citing an cases).4 arguendo Brady applies in the context of his guilty plea, Loiseau still fails to demonstrate the materiality of the evidence supporting his Brady claims.5 In Moussaoui, Loiseau also fails to the United States Court of Appeals for the Fourth Circuit explained that when a defendant enters a guilty plea, Brady's concerns in preventing the conviction of an innocent defendant "are almost completely eliminated because his guilt is admitted." 591 F.3d at 285 (citations omitted). But see United States v. Fisher, 711 F.3d 460, 462 (4th Cir. 2013) (finding an "officer's affirmative misrepresentation, which informed the defendant's decision to plead guilty and tinged the entire proceeding, rendered defendant's plea involuntary and violated his due process rights"). 5 In Kyles, the Supreme Court explained that in Bagley, "it adopted the same formulation for assessing materiality as it had for gauging prejudice in Strickland [v. Washington, 466 U.S. 688, 694 (1984)] confirming that 'a showing of materiality does not require demonstration by a preponderance that disclosure of the suppressed evidence would have resulted ultimately in the defendant's acquittal.'" Tice v. Johnson, 647 F.3d 87, 110-11 (4th Cir. 2011) (quoting Kyles, 514 U.S. at 434). In the context of a guilty plea, the Supreme Court modified the prejudice aspect of Strickland to require a showing that "there is a reasonable probability that, but for counsel's errors, [the defendant] would not have pleaded guilty and would have insisted on going to trial." Hill v. Lockhart, 474 U.S. 52, 59 (1985). Following the Supreme Court's reasoning in Kyles and Bagley, because Loiseau first proceeded to trial and then pled guilty during trial to the kingpin and racketeering charges, to demonstrate "materiality" of the evidence, Loiseau must show that, but for the Government's failure to disclose the evidence, a reasonable probability exists that Loiseau would have not pled demonstrate the materiality of the evidence in the trial context. A. Loiseau's First Motion For Leave To Amend In his first Brady claim, Loiseau argues that he requested and received "relat[ing] contained to the (Mot. Amend. as on November the drugs" for testing from the was material physical connection to convict." (Id.) of the of analysis plastic of bags Forensic that Science. Loiseau interprets these results DNA" the between a certificate Department [Loiseau's] evidence to DNA 2012, (ECF No. 19) 3.)6 "negative used 20, and defense your suggests because petitioner Respondent it and explains that "[t]he showed the that no evidence Loiseau's allegation that "the test results were negative for his DNA" is a "gross mischaracterization (Resp't's Obj . to certificate bag." the (Id.) Mot. states As materiality of Amend "that no the (ECF DNA the No. 21) evidence discussed below, of certificate evidence was Loiseau in 8.) of analysis". Instead, obtained from the the fails to demonstrate light of the extensive evidence of his guilt. Loiseau pled guilty to the drug kingpin charges pursuant to section charges, guilty, 18.2-248(HI) pursuant but to continued of the Virginia sections with 18.2-514 his trial. Code, & 515 As and racketeering of the Virginia discussed below, Loiseau makes no such showing. 6 The Court employs the pagination assigned to both of Loiseau's Motions to Amend by the CM/ECF docketing system. 8 Code, after the Commonwealth presented numerous evidence demonstrating Loiseau's guilt. Ex. 2, Plea Agreement, Virginia Code, states, at 14-16.) witnesses and (Br. Supp. Mot. Dismiss Section 18.2-248 (HI) of the in part: Any person who was the principal or one several principal administrators, organizers leaders of a continuing criminal enterprise shall of or be guilty of a felony if . . . the person engaged in the enterprise to manufacture, sell, give, distribute or possess with the intent to manufacture, sell, give or distribute [between five and less than ten kilograms of a mixture or substance containing detectable amounts of cocaine] during any 12-month period of its existence Va. Code Ann. Section . . . ." § 18.2-248(HI)(2) 18.2-514 (2008). of the Virginia Code provides, in part, that: It shall be unlawful for an enterprise, or for any person who occupies a position of organizer, supervisor, or manager of an enterprise, to receive any proceeds known to have been derived directly from racketeering activity and to use or invest an aggregate of $10,000 or more of such proceeds in the acquisition of any title to, or any right, interest, or equity in, real property, or in the establishment or operation of any enterprise. . . . [or] to directly acquire or maintain any interest in or control of any enterprise or real property through racketeering activities. Va. Code. Ann. § 18.2-514(A)-(B) (2008).7 7 In exchange for his guilty plea, the Commonwealth agreed to amend the Indictment alleging a violation of Va. Code Ann. § 18.2-248 (H2) to a violation of Va. Code Ann. § 18.2-248 (HI) , which carries a lesser term of imprisonment. (Br. Supp. Mot. Dismiss. Ex. 2, Plea Agreement, at 14). Section 18.2-248(H2) carries a term of life imprisonment "with no suspension in whole or in part," unless the defendant provides substantial cooperation which permits the court to lower the sentence to a In his Plea Agreement, Loiseau agreed that the Commonwealth possessed extensive evidence, "which [Loiseau] stipulate[d] can all be proven by the Commonwealth," demonstrating that Loiseau engaged in the importation and sale of cocaine as the principal organizer for a period between January 1, 2008. The (Br. Supp. Mot. Stipulation agents' of Dismiss Ex. 2, Facts investigation organized and led provided had the over a twelve-month period. Plea Agreement, that yielded importation 2008 and December 31, many officers' evidence and at 1-12). that distribution and Loiseau of cocaine (Id. at 2.) Officers set up a controlled buy of cocaine from Loiseau on December 1, 2008. between (Id.) Laurence The Gaines, and confidential informant, the phone call, set up the (Id. ) At Gaines, ounces logistics the meeting who of was subsequently asked Washington of the site (Id. cocaine (Id. at a car 3.) owned buy, by for he a During wanted to and the two that officers Loiseau, From witness call and at 2-3.) whether purchase for the drug a phone Loiseau, a full kilogram of cocaine, operating cocaine. recorded Jamil Washington. Loiseau buy a half kilogram or officers night. arrested with two interviews, the Commonwealth learned that Loiseau obtained cocaine from Atlanta, and learned about Loiseau's efforts to hide cocaine and nearly forty-year mandatory minimum. Va. Code Ann. § 18.2-248(H2) (5). 18.2-248(HI), instead, carries a term of life Section imprisonment with a mandatory minimum sentence of twenty-years. Va. Code Ann. § 18.2-248 (HI) (5) . Without the benefit guilty plea, Loiseau faced a sentence of life in prison. 10 of his $200,000 on the night of Gaines's and Loiseau's arrest. (Id. at 3-5.) The Commonwealth also possessed extensive evidence through at least six witnesses that Loiseau began to distribute drugs in 2007 and that Loiseau used those six cocaine distribution. Specifically, that he in drugs 2007 from others. and 2008 Loiseau (Id. and at 5-6.) of cocaine in 2007. Washington served as witnesses to further Gaines would have testified a "middle man" distributed drugs to who obtained Washington In (Id. at 6.) would 2008, a and Gaines observed Loiseau with a kilogram have testified that he obtained kilograms of cocaine from Loiseau during 2007 and 2008. 6-7.) his kilogram of cocaine cost ten (Id. at $28,000. (Id. ) Washington bought cocaine to redistribute to other drug dealers and Loiseau observed knew of this Loiseau with (Id.) arrangement. two one-kilogram Washington once "bricks" and observed Loiseau with one kilogram quantities of cocaine on at least five occasions. (Id. Danyelle Atlanta (Id. at 9.) would have testified that she drove to Simpson also drove to New York for Loiseau. (Id. Loiseau would "take a bag she had packed and repack it her separately, at 9.) Simpson for Loiseau between five to ten times after May 2008. at 8.) with 7-8.) out of the room." ahead of her, (Id. at 8.) Loiseau and warned her of police radar. drove (Id. Loiseau paid Simpson $2500 for each trip in addition to 11 paying for her hotel, gas, and rental car. (Id.) A few days after Loiseau's arrest, police found a duffle bag in Simpson's house containing Loiseau. $146,240 that Simpson stated belonged (Id. at 3-4.) Tana Williams would have testified that she drove Atlanta for Loiseau at least three times in 2007 and 2008. at 9.) to Loiseau gave Williams bags of money to transport, to (Id. and Loiseau would meet her in an Atlanta hotel to pick up the money. (Id.) Donald and Ronald Williams would have testified that they drove to Atlanta with money they received from Loiseau and would bring packages 10-11.) On package $5000 of one cocaine trip, from Atlanta, to bring back back to Ronald and on five Virginia drove another kilograms a ten trip of for Loiseau. to (Id. fifteen-pound Loiseau paid Ronald cocaine. (Id. at 11.) Donald Wilson would testify that he began "to run narcotics" for Loiseau in 2004. fifteen (Id^ at 11-12.) trips to Atlanta In 2007, to obtain cocaine Donald made ten to for Loiseau. (Id.) On each trip Donald obtained between three and six kilograms of cocaine. (Id.) Donald made each trip at Loiseau's direction, drove packages of money from Loiseau to Atlanta, Virginia with packages of cocaine. of the cutting (Id.) Donald also purchased large quantities (Id.) Loiseau paid Donald in cocaine and cash. 12 agent, and returned to Inositol, for (Id.) Loiseau. In light of the Commonwealth's extensive evidence of Loiseau's guilt of organizing a cocaine distribution enterprise that ran for at least one year, Loiseau fails to demonstrate the materiality of the Commonwealth's nondisclosure of the certificate of analysis of the bag of drugs from the December 1, 2008 controlled buy. Moreover, the fact that the bag of drugs tested negative for Loiseau's DNA is not convincing evidence of Loiseau's innocence as the organizer of the large-scale cocaine distribution enterprise. Furthermore, but for the reasonable Loiseau provides nondisclosure probability of exists no persuasive argument that, the that certificate Loiseau of would analysis, have a insisted on not pleading guilty, and on proceeding with the jury trial. Thus, Loiseau evidence. No. 19) B. In fails Loiseau's to demonstrate first Motion the for materiality Leave to of Amend the (ECF will be denied as futile. Loiseau's Second Motion For Leave To Amend Loiseau's second Motion for Leave to Amend, Loiseau argues that in May of 2013 he received an affidavit from Edward Mack "who was questioned in connection to the charges that were ultimately brought against [Loiseau] . . . wherein Edward Mack made recorded by a Amend. statement that (ECF No. 22) 43.) was the detective." (Mot. Loiseau vaguely argues that based upon this affidavit, "the Commonwealth suppressed evidence by failing to make the statement obtained by Detective Doyle an official 13 part of the Loiseau's record." motion, (Id.) Edward In Mack the states affidavit that he attached told Detective Doyle that he had no knowledge that Loiseau sold drugs, any involvement informed the football. The with Loiseau's detective (Io\ Court he dealing met denied activities, Loiseau and playing flag at 7. ) fails Commonwealth's that drug to to discern case against the role Loiseau. of Edward Mack Loiseau's in the Plea Agreement contains no mention of Edward Mack in the Stipulation of Facts. Loiseau also provides no pertinent background information about Mack in support demonstrate Doyle of that played a his the Brady absence material claim. of part Thus, Mack's in Loiseau statement Loiseau's to does not Detective decision to plead guilty. Moreover, for the same reasons as stated above, Loiseau fails to demonstrate that Mack's statement to Detective Doyle is material in light of Loiseau's guilty plea, his admission of guilt to the charges, and the overwhelming evidence of Loiseau's guilt. Thus, Accordingly No. 22) Loiseau's Loiseau's second second Motion Brady for claim Leave lacks to merit. Amend (ECF will be denied as futile. IV. For (ECF No. the 5) foregoing will be CONCLUSION reasons, granted. Respondent's Loiseau's 14 Motion Motions to for Dismiss Leave to Amend (ECF § 2254 No. 19, Petition 22) will will be be denied denied, as and futile. the Loiseau's action will be dismissed. An appeal may not be taken from the final order in a § 2254 proceeding unless a judge issues a certificate of appealability ("COA"). 28 U.S.C. § 2253(c) (1) (A) . A COA will not issue unless a prisoner makes "a substantial showing of the denial of a constitutional right." 28 U.S.C. § 2253(c)(2). A petitioner satisfies this requirement only when "reasonable jurists could debate whether (or, should have been issues presented resolved were proceed further.'" (quoting Barefoot v. Loiseau fails to for that matter, in a agree that) different ^adequate to manner deserve meet 463 U.S. this 880, standard. or that encouragement Slack v. McDaniel, 529 U.S. Estelle, the petition the to 473, 484 (2000) 893 & n.4 (1983)). A certificate of appealability will therefore be denied. The Clerk of the Court is directed to send a copy of this Memorandum Opinion to Loiseau and counsel for Respondent. /s/ Robert E. j/tUt Payne Senior United States District Judge Richmond, Virginia Date:U. L> t/"2013 15
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