Opinion
CIVIL ACTION NO. 01-1851 SECTION "K"(6)
April 24, 2002
Before this Court are petitioner's Objections to the Report and Recommendation issued by Magistrate Judge Moore on March 14, 2002. The Court has reviewed the report, petitioner's objections, and the applicable law and concurs with the findings of the Magistrate for the reasons contained herein.
Background
In his original complaint, petitioner raised a myriad of arguments challenging varying aspects of his prosecution, trial, and appeal. in his Report and Recommendation, Judge Moore addressed petitioner's complaint's in the following order: (1) complaints One, Two, Three and Five — addressing whether the facts and evidence supported the district attorney's prosecution of petitioner and the jury's guilty verdict as to the charge of purse snatching, (2) complaints Four and Eight — concerning improper remarks made by on the part of the prosecution, (3) complaints Six and Seven — claiming that the verdict at his trial was invalid, (4) the Eleventh complaint — addressing the alleged unconstitutional delay in sentencing petitioner as a multiple offender, (5) the Ninth complaint — concerning the trial court's admittance of "inadmissible evidence," (6) the Tenth complaint — arguing that his life sentence constitutes a violation of the Ex Post Facto Clause of the Constitution, and (7) the Twelfth and Thirteenth complaints of ineffective trial and appellate counsel.
This Court has considered the Petition under 28 U.S.C. § 2254 for Writ of Habeas Corpus by a Person in State Custody, the record, the applicable law, the Report and Recommendation of the United States Magistrate Judge, and plaintiffs Objections received on March 27, 2002 and has conducted a de novo review of those portions of the Report and Recommendations to which objections are made as required by 28 U.S.C. § 636(b)(1). Furthermore, this Court approves the Report and Recommendation of the United States Magistrate Judge and adopts it as its opinion in this matter.
In reviewing petitioner's objections to the Report and Recommendation, this Court will address the complaints in the same order employed Judge Moore's Report.
Analysis
Complaints One, Two, Three, and Five: Sufficient Evidence/Facts to Support the Prosecution of Petitioner or the Jury's Guilty Verdict
In his response to the Report and Recommendation, plaintiff conclusorily objects to Judge Moore's analysis concerning his fifth complaint — alleging there was insufficient evidence on which to convict petitioner. Petitioner offers neither any new argument to support the original complaint nor any evidence to establish that the Magistrate's finding was incorrect. Therefore, this Court will not conduct a de novo review as to petitioner's fifth complaint. Battle v. United States Parole Comm'n, 834 F.2d 419, 421 (5th Cir. 1987) (holding in part that a Court need not conduct a de novo review when objections are frivolous, conclusive, or general in nature).
Petitioner also asserts that the Magistrate did not address his claims one, two, and three — addressing the district attorney's alleged abuse of the legal process, misapplication of the law, and malicious prosecution of petitioner. Petitioner is incorrect because Judge Moore's analysis grouped claims one, two, three and five together in its "reluctant" finding that there were sufficient facts and evidence on which (1) the district attorney validly instituted suit against petitioner and (2) the jury found that petitioner was guilty.
This Court reasserts that petitioner's allegations of malicious prosecution and abuse of the legal process were correctly dismissed. In order to maintain a cause of action for "malicious prosecution," petitioner would have had to establish: (1) the commencement or continuance of an original criminal or civil judicial proceeding; (2) its legal causation by the present defendant in the original proceeding; (3) its bona fide termination in favor of the present plaintiff; (4) the absence of probable cause for such [a] proceeding; (5) the presence of malice therein; and (6) damage conforming to legal standards resulting to the plaintiff. Brimmer v. Copelands Enterprises, Inc., 609 So.2d 847 (4th Cir. 1992) (citing Jones v. Soileau, 448 So.2d 1268, 1271 (La. 1984)). Because petitioner's trial did not terminate in his favor and there has been no showing of malice on the part of the district attorney, the magistrate correctly determined that petitioner could not pursue complaints one or three.
Finally, the Magistrate was correct to dismiss petitioner's second complaint alleging "misapplication of the law" by the district attorney. A claim based on the misapplication of state law is not cognizable in a habeas proceeding unless the petitioner can establish that the error deprived him of a fair trial. Evans v. Thigpen, 809 F.2d 239 (5th Cir. 1987). In the case at bar, petitioner has not introduced any evidence contrary to the magistrate's finding that there was no misapplication of the law or that petitioner received a for trial.
Complaints Four and Eight: Improper Remarks on the Part of the Prosecution
In his response to the Report and Recommendation, petitioner conclusorily "objects to the Magistrate Judge's legal conclusions" concerning his fourth and eight complaints — alleging that two improper comments by the prosecutor should have resulted in a mistrial. However, petitioner does not provide any new evidence or argument in support of his position. This Court can not conduct a de novo review of the entire record when a petitioner provides only a conclusory objection to the magistrate's findings. Therefore, petitioner's objections as to his fourth and eighth complaints must be dismissed. Battle v. United States Parole Comm'n, 834 F.2d 419, 421 (5th Cir. 1987) (holding in part that a Court need not conduct a de novo review when objections are frivolous, conclusive, or general in nature).
Complaints Six and Seven: Invalid Verdict
Similarly, the Court will not conduct a de novo review of petitioner's sixth and seventh complaints, contending that the verdict at his trial was invalid, because petitioner has summarily "objected" to the magistrate's findings. Petitioner has again provided no argument as to why the magistrate's finding was in error. Therefore, petitioner's objections to the magistrate's findings as to complaints six and seven should be dismissed. Battle v. United States Parole Comm'n, 834 F.2d 419, 421 (5th Cir. 1987) (holding in part that a Court need not conduct a de novo review when objections are frivolous, conclusive, or general in nature).
Complaint Eleven: Unconstitutional Delay in Sentencing Petitioner as Multiple Offender
Again, the Court will not conduct a de novo review of petitioner's eleventh complaint — arguing that there was an unconstitutional delay in his sentencing as a multiple offender — because petitioner has submitted only a conclusory objection to the magistrate's findings. Petitioner has provided no argument as to why the magistrate's finding was in error. Therefore, petitioner's objections to the magistrate's findings as to his eleventh complaint should be dismissed. Battle v. United States Parole Comm'n, 834 F.2d 419, 421 (5th Cir. 1987) (holding in part that a Court need not conduct a de novo review when objections are frivolous, conclusive, or general in nature).
Complaint Nine: Trial Court's Admittance of Inadmissible Evidence
The Court will likewise refrain from conducting a de novo review of petitioner's ninth complaint — arguing that the trial court allowed "inadmissable evidence" to be presented at trial — because petitioner has submitted only a conclusory objection to the magistrate's findings. Petitioner has provided no argument as to why the magistrate's finding was in error and his objection should be dismissed. Battle v. United States Parole Comm'n, 834 F.2d 419, 421 (5th Cir. 1987) (holding in part that a Court need not conduct a de novo review when objections are frivolous, conclusive, or general in nature).
Complaint 10: Life Sentence Constituted Violation of Ex Post Facto Clause of Constitution
In his objection to the magistrate's resolution of his tenth complaint, plaintiff has presented no new argument which would cause this Court to overrule the Magistrate's findings. Petitioner originally complained that he was sentenced as a multiple offender under the 1996 sentencing guidelines rather than the 1993 guidelines that were in effect at the time he allegedly committed the purse snatching. Under the 1993 Guidelines, La R.S. 15:529.1(A)(3)(b), it was possible for petitioner to receive a life sentence, but it was not mandatory. However, under the 1996 Guidelines, La R.S. 15:529.1(A)(1)(c)(ii), it would have been mandatory for petitioner to receive a life sentence upon his committing a fourth felony offense. Because the trial court referenced "Revised Statute 15:529.1" while sentencing petitioner, petitioner assumed that the judge employed the 1996 "revised" version of La R.S. 15:529.1(A)(3)(b).
However, this Court concurs with the findings of the magistrate that: (1) the trial court's language during sentencing should not be interpreted to mean that it applied the 1996 Guidelines, (2) under the 1993 Guidelines, the trial court had the discretion to sentence petitioner to life, and (3) the judge exercised his discretion in sentencing petitioner to life and gave his reasons for imposing such a sentence. Because petitioner's objection provides no further evidence or argument for this Court to consider, petitioner's tenth complaint should be dismissed.
Complaints 12 and 13: Ineffective Assistance of Counsel
Pre-Trial Stages
Petitioner raises only one "new objection" concerning the effectiveness of his trial counsel during the pre-trial stages. Specifically, petitioner argues that the Magistrate Judge:
[F]ailed to address the issue concerning one of those motions — "Motion to Have Defendant's Clothing Transferred to the Court's Evidence Room" which rest upon a forged signature. Petitioner presented exhibit substantiating this fact, yet it was not addressed. Has defense counsel inspected this motion he could have requested that it be denied based on its criminal intent.
Objections to Report and Recommendation, p. 5.
However, the Report indicates that the Magistrate considered petitioner's complaint. Specifically, the Magistrate reasoned as follows:
Petitioner also suggests that the signature of Orleans Parish Criminal District Court Judge Calvin Johnson on one of the pre-trial motions concerning the safeguarding of petitioner's clothing, was "Forged." Whether or not the pertinent signature us that of Judge Johnson is clearly a question of fact. By rejecting petitioner's forgery argument in his state post-conviction application Judge Johnson made the factual determination that the pertinent signature was, in fact, his. Under the provisions of 28 U.S.C. § 2254 (e), in adjudicating a state prisoner's habeas corpus petition, "a determination of a factual issue made by a State court shall be presumed to be correct.
Report and Recommendation. p. 23, n. 30.
Because petitioner has given this Court no reason to disagree with the Magistrate's analysis, this Court concurs with the conclusions in the Report and Recommendation as to the dismissal of plaintiffs ineffective assistance of counsel claim during the pre-trial stages of the trial.
Trial Stages
Petitioner originally complained that his trial counsel was ineffective because he did not request that the jury be charged regarding the elements of the lesser crime of "theft." In his Report, the Magistrate agreed that (1) under Louisiana law, the trial court should have instructed the jury as to the elements of "theft" and (2) petitioner's trial counsel was deficient when he failed to request such an instruction. However, the Magistrate concluded that counsel's deficient conduct was not prejudicial to petitioner because:
Regardless of whether petitioner Ward was convicted of the felony of theft or the felony of purse snatching, he would have been subject to the same sentencing provisions. LSA-R.S. 15:529.1, as it existed in 1993, provided, in pertinent part, that upon adjudication as a fourth felony offender, regardless of the nature of the felony, the offender was subject to a sentence of not "less than twenty years and not more than his natural life." Given petitioner's excessive criminal history, it is not reasonably probable that a re-trial, resulting in a guilty verdict of felony theft, would result in a different outcome, i.e., something other than the imposition of a life sentence.
Report and Recommendation. p. 27.
Petitioner reasons in his Objections to the Report and Recommendation that failure to instruct the jury as to the lesser included offense of "theft" was prejudicial because:
(1) petitioner would not be subjected to a conviction under the violent statute LSA 14:213; (2) petitioner would not have been subjected to a life sentence; and (3) petitioner would have been eligible for the newly enacted law 403 House Bill 239 which requires non-violent conviction offenders the benefit of applying through the "Risk Review Panel" for clemency.
Objections to Report and Recommendation, p. 7.
The Court has reviewed petitioner's Objection and the relevant law and concludes that petitioner's new argument does not establish any prejudice by the failure of his attorney to request a jury charge as to the lesser included offense of "theft." La R.S. 15:574 provides a mechanism by which certain inmates who are imprisoned as habitual offenders can apply for parole status if certain qualifications are met. Had petitioner been found guilty of theft (and not purse snatching), he may have been able for the benefits conferred by the statute. However, the Act became effective in June 2001 and specifies that it has prospective effect only. Because petitioner was sentenced years before the enactment of La R.S. 15:574, it does not apply to petitioner's case. Therefore, petitioner has not proved that he suffered any prejudice from his trial counsel's deficient conduct in failing to request a jury instruction as to "theft."
Post-Trial Objections
While plaintiff "objects" to the Magistrate's conclusions concerning his counsel's post-trial representation, petitioner has offered no new evidence or argument to support his position. Therefore, the Court concurs with the well-reasoned conclusion of the Magistrate that petitioner was not prejudiced by any actions of his post-trial counsel and petitioner's objections to the magistrate's findings as to his post-trial representation should be dismissed. Battle v. United States Parole Comm'n, 834 F.2d 419, 421 (5th Cir. 1987) (holding in part that a Court need not conduct a de novo review when objections are frivolous, conclusive, or general in nature).
Accordingly,
IT IS ORDERED that the petition of Louis Ward for issuance of a writ of habeas corpus under 28 U.S.C. § 2254, is hereby DENIED WITH PREJUDICE.