Dennis v. Louisiana, CIVIL ACTION NO. 14-2780 SECTION "S"(2)

• Decision Date: 25 June 2015
• Docket Number: CIVIL ACTION NO. 14-2780 SECTION "S"(2)
• Parties: CHADWICK DENNIS v. STATE OF LOUISIANA
• Court: U.S. District Court — Eastern District of Louisiana

CHADWICK DENNIS v. STATE OF LOUISIANA

CIVIL ACTION NO. 14-2780 SECTION "S"(2)

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF LOUISIANA

June 25, 2015

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 for disposition 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, I have determined that a federal evidentiary hearing is unnecessary. See 28 U.S.C. § 2254(e)(2).¹ For the following reasons, I recommend that the instant petition for habeas corpus relief be DISMISSED WITH PREJUDICE.

I. FACTUAL AND PROCEDURAL BACKGROUND

The petitioner, Chadwick Dennis, is incarcerated in the David Wade Correctional Center in Homer, Louisiana.² On December 1, 1998, Dennis was charged by bill of information in Jefferson Parish with one count of aggravated battery.³ The Louisiana Fifth Circuit Court of Appeal summarized the facts determined at trial as follows:

This case involves a shooting that occurred on August 12, 1998. The shooting took place on Walker Neal Avenue in River Ridge. The shooting was precipitated by an argument between Sean Fisher and Antonio Fenderson. This argument concerned Tabitha Phillips, Fenderson's girlfriend, and Fisher's next door neighbor.

On August 12, Fenderson went to Fisher's to talk to him. While Fenderson was at the Fisher house, an argument erupted between Fenderson, Fisher and Fisher's mother. At this point, Fenderson returned to Phillips' house. Fisher also left after the initial argument and went to his grandmother's house.

Later that night Fisher returned home with his brother-in-law. When he arrived, Fenderson and Defendant were standing outside. Defendant asked which of the two men was Sean, and Fisher stated that he was Sean. When Fisher told Defendant who he was, Defendant shot him. After shooting Fisher, Defendant fled the scene. Fisher later identified Defendant's picture in a photographic lineup, and Defendant was arrested.

State v. Dennis, 777 So.2d 569, 570-71 (La. App. 5th Cir. 2000); State Record Volume 1 of 6, Louisiana Fifth Circuit Opinion, 00-KA-182, pp. 1-2, December 13, 2000.

Dennis was tried before a jury on April 21, 1999, and was found guilty as charged.⁴ The state trial court denied Dennis's motion for a new trial on June 28, 1999.⁵ The court sentenced Dennis on November 12, 1999, to serve ten years in prison at hard labor.⁶

The State later filed a multiple offender bill on February 7, 2000.⁷ At a hearing on July 27, 2000, the court adjudicated Dennis a multiple offender and resentenced him to serve life in prison without benefit of parole, probation or suspension of sentence.⁸ Dennis did not appeal the multiple offender proceedings or sentence.

On direct appeal to the Louisiana Fifth Circuit, Dennis's counsel asserted three errors:⁹ (1) The trial court allowed the State to present an officer's recollection of Dennis's oral statement which differed from the statement disclosed to the defense. (2) The evidence was insufficient to support the conviction. (3) The jury convicted him under a statute that was unconstitutionally broad in scope. The court affirmed theconviction on December 13, 2000, finding the claims meritless.¹⁰ However, the court remanded the matter for the trial court to advise Dennis of the delays for seeking post-conviction relief.

The Louisiana Supreme Court denied Dennis's subsequent writ application without stated reasons on November 21, 2001.¹¹ His conviction and sentence became final ninety (90) days later, on February 19, 2002, when he did not file a writ application with the United States Supreme Court. Ott v. Johnson, 192 F.3d 510, 513 (5th Cir. 1999) (period for filing for certiorari with the United States Supreme Court is considered in the finality determination under 28 U.S.C. § 2244(d)(1)(A)), cert. denied, 529 U.S. 1099 (2000); U.S. Sup. Ct. Rule 13(1).

Almost one year later, on February 11, 2003, Dennis signed and submitted an application for post-conviction relief to the state trial court in which he asserted the following grounds for relief:¹² (1) Counsel denied him the right to testify. (2) The state trial court improperly found that he was a multiple offender. (3) He was denied effective assistance of counsel when counsel abandoned the alibi defense. (4) The state trial court failed to advise him of the right to remain silent at the multiple offender arraignment. (5)Counsel provided ineffective assistance during the multiple offender proceedings. The state trial court denied relief on March 10, 2003, finding no merit in the claims.¹³

The Louisiana Fifth Circuit denied Dennis's related writ application on May 5, 2003, finding no error in the trial court's ruling.¹⁴ The Louisiana Supreme Court also denied Dennis's writ application without stated reasons on May 7, 2004.¹⁵

Nine months later, on February 21, 2005, Dennis submitted a motion to the state trial court to correct an illegal sentence because he was not provided a jury during the multiple offender proceedings.¹⁶ On March 3, 2005, the state trial court determined that Dennis's arguments should have been brought in a properly filed application for post-conviction relief and denied the motion without prejudice.¹⁷ Dennis did not seek review of this ruling.

Dennis submitted a second motion on May 16, 2005, seeking to vacate and correct his sentence on the same grounds.¹⁸ The state trial court denied the motion as meritless on May 23, 2005.¹⁹ Dennis did not seek further review of this order.

More than one year later, on August 28, 2006, Dennis signed and submitted another motion to the state trial court seeking to correct his sentence based on the 2006 revision to La. Rev. Stat. § 15:308, which required retroactive application of more lenient sentencing provisions passed in 2001 and which were not applied to his multiple offender sentence.²⁰ The state trial court denied the motion without stated reasons on September 7, 2006.²¹ Dennis did not seek review of this ruling.

Almost one year later, on August 10, 2007, Dennis signed and submitted an application for post-conviction relief to the state trial court in which he asserted the following grounds for relief: (1) The State failed to present competent evidence of his prior convictions during the multiple offender proceedings. (2) He was denied effective assistance of counsel during the multiple offender proceeding when counsel failed to move for a continuance for time to investigate.

On September 6, 2007, the state trial court denied the application because Dennis failed to complete all parts of the required form petition, the petition was successive under La. Code Crim. P. art. 930.4, the petition was untimely pursuant to La. Code Crim. P. art. 930.8 and the asserted grounds were not cognizable on post-conviction review pursuant to La. Code Crim. P. art. 930.3, State ex rel. Melinie v. State, 665 So.2d 1172 (La. 1996), and State v. Hebreard, 708 So.2d 1291 (La. App. 4th Cir. 1998).²²

The Louisiana Fifth Circuit denied Dennis's related writ application on November 28, 2007.²³ The appellate court agreed with the trial court's denial of the application as seeking improper post-conviction review under La. Code Crim. P. art. 930.4(C) and noted that Dennis withdrew the appeal filed after the multiple bill proceedings. Dennis did not seek further review of this ruling.

Almost two years later, on September 4, 2009, Dennis signed and submitted a writ application to the Louisiana Supreme Court seeking reconsideration of his prior pro se post-conviction writ application in the Louisiana Fifth Circuit pursuant to State v. Cordero, 993 So.2d 203 (La. 2008).²⁴ Per the Cordero procedures, the writ application was transferred to the Louisiana Fifth Circuit on December 18, 2009, where it wasdocketed for reconsideration under Case No. 09-WR-1121.²⁵ On July 15, 2011, the Louisiana Fifth Circuit granted reconsideration in accordance with Cordero and denied relief finding no error in its prior ruling on Dennis's 2003 writ application.²⁶ Dennis did not seek review of this ruling.

Almost two years later, on April 15, 2013, Dennis signed and submitted a motion to the state trial court seeking to amend his sentence to comply with the retroactive application of La. Rev. Stat. § 15:308 which had been amended in 2012.²⁷ The state trial court denied the motion because the court did not have jurisdiction to commute a final life sentence, a power instead left to Louisiana's executive branch, citing State v. Dick, 951 So. 2d 124 (La. 2007).²⁸

The Louisiana Fifth Circuit denied Dennis's related writ application on the same grounds in its reasoned order issued on July 29, 2013.²⁹ The Louisiana Supreme Courtalso denied Dennis's subsequent writ application without stated reasons on May 16, 2014.³⁰

II. PRIOR AND CURRENT FEDERAL HABEAS PETITIONS

On September 1, 2004, Dennis filed a federal habeas corpus petition in this court, asserting that his counsel provided ineffective assistance when he refused to allow him to testify at trial, abandoned the alibi defense and did not challenge the evidence during the multiple offender proceedings.³¹ The United States Magistrate Judge then assigned to that case recommended that Dennis's petition be denied with prejudice as time-barred on July 29, 2005.³² The District Judge subsequently approved and adopted the report and recommendation, denied and dismissed Dennis's habeas corpus petition on November 14, 2005.³³ Dennis did not appeal that ruling.

On December 5, 2014,³⁴ Dennis executed this second petition for federal habeas corpus relief in this court, asserting four grounds for relief:³⁵ (1) The Louisiana Legislature did not give or intend to give sentencing power to the executive branch when it enacted La. Rev. Stat. § 15:308. (2) The Louisiana Fifth Circuit erred in denying petitioner's...