Baggs v. Terrell, CIVIL ACTION NO. 09-6808 SECTION "S"(4)

• Court: United States District Courts. 5th Circuit. United States District Court (Eastern District of Louisiana)
• Writing for the Court: KAREN WELLS ROBY UNITED STATES MAGISTRATE JUDGE
• Parties: KURT BAGGS v. TERRY TERRELL, WARDEN ALLEN CORRECTIONAL CENTER
• Decision Date: 15 December 2014
• Docket Number: CIVIL ACTION NO. 09-6808 SECTION "S"(4)

KURT BAGGS
v.
TERRY TERRELL, WARDEN ALLEN CORRECTIONAL CENTER

CIVIL ACTION NO. 09-6808 SECTION "S"(4)

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF LOUISIANA

December 15, 2014

REPORT AND RECOMMENDATION

This matter was referred to a United States Magistrate Judge to conduct hearings, including an evidentiary hearing if necessary, and to submit proposed findings and recommendations pursuant to 28 U.S.C. § 636(b)(1)(B) and (C), and as applicable, Rule 8(b) of the Rules Governing Section 2254 Cases. Upon review of the entire record, the Court has determined that this matter can be disposed of without an evidentiary hearing. See 28 U.S.C. § 2254(e)(2).¹

I. Current Status of the Case

On August 31, 2012, the undersigned Magistrate Judge issued a Report and Recommendation in which it was recommended that the federal habeas corpus petition (Rec. Doc. No. 1) and first amended petition (Rec. Doc. No. 20) filed by counsel for the petitioner, Kurt Baggs ("Baggs"), be dismissed without prejudice as presenting mixed claims which were not all exhausted in the state court unless Baggs dismissed the unexhausted claims as addressed in the original Report.² On review of Baggs's objections, and the State's response thereto, on September 24, 2012, the District Judge adopted the Report and Recommendation and ordered that Baggs's unexhausted claims be

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dismissed without prejudice and that the three remaining exhausted claims presented in Baggs's amended complaint be referred to the magistrate judge for further consideration.³

Baggs eventually filed a second amended complaint on February 4, 2014, raising only the three exhausted claims as allowed by the District Judge.⁴ Upon receipt of additional briefing and records from the State, the matter is before the Court for review.⁵

II. State Factual and Procedural Background

Baggs is a convicted inmate incarcerated in the Allen Correctional Center in Kinder, Louisiana.⁶ Baggs through retained counsel filed this federal petition for habeas corpus challenging two convictions in St. Tammany Parish for fourth offense driving while intoxicated in Case Nos. 403896 and 425694.

In Case No. 403896, Baggs was charged by bill of information on November 2, 2005, with a fourth offense driving while intoxicated which occurred on September 19, 2005.⁷ He was later charged on February 17, 2007, in Case No. 425694 with another fourth offense driving while intoxicated which occurred on January 14, 2007, just three days after his release on bond in the older case.⁸ Baggs entered pleas of not guilty in both cases.⁹

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He later withdrew the plea in Case No. 403896 and entered a plea of not guilty and not guilty by reason of insanity.¹⁰ The Trial Court held a lunacy hearing on August 20, 2007, in connection with both cases to determine Baggs's competence to proceed and assist with his defense.¹¹ Based on the stipulated reports of the lunacy commission doctors, the court found that Baggs was not competent at that time to proceed in either case and ordered that he be held for further treatment and evaluation for ninety (90) days.¹²

Thereafter, on December 4, 2007, the court held a review hearing of both cases at which time it ordered that Baggs be re-evaluated by the lunacy commission doctors.¹³ At the lunacy review hearing held February 1, 2008, the parties stipulated to the panel doctors' reports, and the court found Baggs competent to proceed with trial.¹⁴

After several months of proceedings on other pretrial motions, on October 13, 2008, Baggs withdrew his former pleas and entered pleas of guilty in both cases.¹⁵ After waiver of legal delays, he was sentenced that day to serve consecutive sentences of ten (10) years in prison at hard labor in each case and without benefit of parole, probation or suspension of sentence.¹⁶

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Baggs's convictions became final 30 days later, on November 12, 2008, because he did not seek reconsideration of the sentence or file an appeal. La. Code Crim. P. art. 914;¹⁷ Butler v. Cain, 533 F.3d 314, 317 (5th Cir. 2008) ("'[A] conviction becomes final when the time for seeking further direct review in the state court expires.'") (quoting Roberts v. Cockrell, 319 F.3d 690, 694 (5th Cir. 2003)).

Eleven months later, on October 13, 2009, Baggs's counsel filed an application for postconviction relief under both case numbers requesting an evidentiary hearing and asserting that trial counsel was ineffective for failing to obtain Baggs's medical and psychiatric records for the sanity commission to review and for counseling Baggs to plead guilty.¹⁸ His counsel did not present any supporting arguments for this claim and instead argued that the record required further development and a hearing before the claims could be briefed. Counsel also indicated that the state application was filed to interrupt the federal habeas limitations period. The record does not reflect that counsel filed a supplement to the application or other support for the claim itself. The next day, however, Baggs's counsel did file the instant federal habeas corpus petition as will be further discussed later in this report.

On November 20, 2009, the state trial court denied relief finding that Baggs failed to meet his burden of proof regarding the ineffective assistance of counsel claim, and in its review, found no basis in the record to support the claim under the standards set forth in Strickland v. Washington, 466 U.S. 668 (1984), and related state law. The court also outlined the procedural protections

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afforded to Baggs during the plea proceedings and found the plea to have been constitutionally entered.¹⁹ Notice of the judgment was sent to counsel by the clerk of that court on December 3, 2009.²⁰ Baggs did not seek further review of this ruling in the higher state courts.

Over two months later, on February 23, 2010, counsel filed a motion with the Trial Court seeking to have the November 20, 2009 judgment re-issued alleging that the defense had not received a copy of the order.²¹ The Trial Court granted the request.²² In spite of this, Baggs still did not pursue further review of the Trial Court's November 20, 2009 ruling.

Instead, six weeks later, Baggs through counsel returned to the Trial Court to file a motion seeking to re-open the sanity commission and to allow him to withdraw the plea.²³ Baggs argued that the sanity commission made its recommendation of competency to the Trial Court without having received and reviewed Baggs's prior psychiatric records. Baggs also claimed that he was on psychotropic medication on the day of his guilty plea which altered his ability to enter a knowing and voluntary plea. He further argued that the Trial Court was unable to fully investigate and evaluate his competence without having the records or having had those records reviewed by the sanity commission doctors. As a result, Baggs claimed that his due process right not to be tried while legally incompetent, as recognized in Pate v. Robinson, 383 U.S. 375 (1966) and related state law, was violated.

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On June 30, 2010, the Trial Court ordered that the motion to re-open be construed as an application for post-conviction relief, including a request to withdraw the guilty plea, and ordered a response from the State.²⁴ The State thereafter filed procedural objections to the application, which were overruled by the court and the matter was set for hearing.²⁵

The Trial Court held the hearing on September 23, 2010, to address the issues raised by Baggs.²⁶ After receipt of post-hearing memoranda,²⁷ on December 14, 2010, the Trial Court denied the motion to re-open finding no legal basis to set aside the pleas.²⁸ In support of its decision, the court referenced and adopted the reasons addressing the validity of the guilty pleas set forth in its October 13, 2009 order denying Baggs's prior post-conviction application and the reasons outlined by the State in its post-hearing memorandum filed October 12, 2010.²⁹ In that memorandum, the State argued that Baggs could not meet his burden of proof under La. Code Crim. P. art. 930.2 because the sanity commission doctors, whose testimony also was received at the post-conviction hearing, could not testify to Baggs's mental capacity on the exact date of his plea in 2008, and the law did not require that he be re-evaluated before the plea.³⁰

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On January 6, 2011, Baggs's counsel filed a motion to convert the already resolved motion to re-open/application for post-conviction relief into a request for an out-of-time appeal of the underlying convictions.³¹ The Trial Court denied the motion without comment on January, 14, 2011.³²

After several extensions of time,³³ on February 25, 2011, Baggs through counsel filed a timely writ application with the Louisiana First Circuit seeking review of the Trial Court's denial of post-conviction relief asserting two grounds for relief:³⁴ (1) the Trial Court erred in finding no legal basis to set aside the pleas where Baggs provided a preponderance of evidence that he was not competent when he waived his rights and entered the plea; and (2) the Trial Court erred in failing to find a Pate violation where there was sufficient doubt as to Baggs's mental competence. In a supplemental brief, Baggs added that the Trial Court erred when it considered the hearsay notes of the prison psychiatrist, Dr. Higgins, in its denial of post-conviction relief.³⁵ The Louisiana First Circuit denied the application on May 9, 2011, without stated reasons.³⁶

Baggs through counsel also filed a writ application with the Louisiana Supreme Court on June 8, 2011, raising the same three arguments:³⁷ (1) the Trial Court erred in finding no legal basis

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to set aside the pleas where he provided a preponderance of evidence that he was not competent when he waived his rights and entered the plea; (2) the Trial Court erred in failing to find a Pate violation where there was sufficient doubt as to his mental competence; and (3) the Trial Court erred in considering the...