Doc v. Cain
| Decision Date | 14 October 2014 |
| Docket Number | CIVIL ACTION NO. 6:12-cv-2741 SECTION P |
| Parties | KEVIN NARCISSE LA. DOC #528337 v. BURL CAIN, WARDEN |
| Court | U.S. District Court — Western District of Louisiana |
Pro se petitioner Kevin Narcisse filed the instant petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254 on October 23, 2012. Petitioner is an inmate in the custody of the Louisiana Department of Corrections, incarcerated at the Louisiana State Penitentiary in Angola, Louisiana. Petitioner attacks his 2007 conviction for second degree murder, entered by the Sixteenth Judicial District Court for Iberia Parish, for which petitioner was sentenced to life imprisonment.
This matter has been referred to the undersigned in accordance with the provisions of 28 U.S.C. § 636 and the standing orders of the court. For the following reasons, it is recommended that this habeas corpus petition be DENIED AND DISMISSED WITH PREJUDICE.
Petitioner was convicted of the second degree murder of Robert West following a jury trial on August 17, 2007. He was sentenced to life imprisonment on September 19, 2007. The Third Circuit Court of Appeal summarized the facts surrounding the crime asfollows:
Robert West and three friends, Shawn Broussard, Jacobe Villery, and Vanity Archangel (West's fiancee), were driving around New Iberia in search of five dollars worth of marijuana. At the corner of Ann and Sam Streets, they encountered several people. When they pulled the car up to the curb, Brandon "B" Augustine approached the car, and Villery, who was familiar with Augustine from high school, told him they wanted to buy some marijuana. Augustine took five dollars from Villery, walked over to Defendant, Kevin Narcisse, and gave him the money. Defendant returned to the car and gave Villery a small bag of marijuana. An argument ensued between Defendant and the victim, Mr. West, who was a passenger in the car, over the quantity of marijuana. Mr. West got out of the car to confront Defendant but instead faced a gun. As he was attempting to flee, Defendant shot him six times, five times in the back and once in the back of his arm. The victim died as a result of the gunshot wounds. Defendant ran from the scene but eventually surrendered himself six weeks later.
State of Louisiana v. Kevin Narcisse, 996 So.2d 702, 2008 WL 4927372, *1 (La. App. 3rd Cir. 2008).
On November 19, 2008, the Louisiana Third Circuit Court of Appeals affirmed petitioner's conviction and sentence. State of Louisiana v. Kevin Narcisse, 996 So.2d 702, 2008 WL 4927372 (La. App. 3rd Cir. 2008). On direct appeal petitioner asserted the following assignments of error: (1) petitioner was subjected to an unduly suggestive and improperly conducted photographic line-up; (2) insufficiency of the evidence1; and (3) erroneous denial of petitioner's challenge for cause regarding juror Irving Thomas.2 TheThird Circuit did not reach the merits of petitioner's third claim because the claim was barred due to counsel's failure to contemporaneously object to the Court's ruling pursuant to La.C.Cr.P. article 800(A).
On October 16, 2009, the Louisiana Supreme Court denied petitioner's request for discretionary review. State of Louisiana v. Kevin Narcisse, 19 So.3d 471 (La. 2009).
Petitioner filed an Application for Post-Conviction relief on July 22, 2010. Petitioner raised the following claims: (1) prosecutorial misconduct for allowing perjured testimony to go uncorrected; (2) denial of a full and complete appeal because of an incomplete record; (3) improper comment by the trial judge during voir dire; (4) ineffective assistance of counsel because counsel (a) failed to properly investigate and discover the case, (b) failed to present an adequate defense, (c) failed to object and take supervisory writs on bias of ceratin jurors, (d) failed to object to demonstration of a bloody shirt to the jury, and (e) cumulative effect of these errors constituted ineffective assistance; and (5) police officers failed to obtain exculpatory evidence. .
The trial court denied petitioner's fifth claim on October 11, 2010 and denied the remainder of petitioner's claims on October 14, 2010. In so doing, the Court adopted the State's argument on all claims3 and assigned additional reasons for denial of petitioner'sineffective assistance of counsel claims. [rec. doc. 1-3, pg. 38; 39-41]. The Trial court therefore apparently did not reach the merits of petitioner's first, third or fifth claims for relief; the State's Answer reveals that petitioner's first claim (prosecutorial misconduct for allowing perjured testimony to go uncorrected) was barred due to counsel's failure to contemporaneously object to the alleged perjured testimony as required under La.C.Cr.P. art. 841(A) and additionally barred under La.C.Cr.P. art. 930.4 because petitioner inexcusably failed to raise the claim in the proceedings leading to conviction and failed to pursue the claim on direct appeal [rec. doc. 9, pg. 67and 69], and that petitioner's third and fifth claims (improper comment by the trial judge during voir dire and police officers failed to obtain exculpatory evidence) were barred under La.C.Cr.P. art. 930.4 because petitioner inexcusably failed to raise the claims in the proceedings leading to conviction and failed to pursue the claims on direct appeal [rec. doc. 9, pg. 67; rec. doc. 1-3, pg. 36]. The State also, however, alternatively addressed the merits. [see Id.; see also rec. doc. 9, pg. 69-70 - rec. doc. 9-1, pg. 1-5; rec. doc. 1-3, pg. 36-37].
On December 2, 2011, the Louisiana Third Circuit Court of Appeal denied writs finding "[t]he trial court did not err in denying Relator's application for post-conviction relief." State v. Narcisse, 10-KH-1391 (La. App. 3 Cir. 2011); [rec. doc. 1-3, pg. 38]. On September 12, 2012, the Louisiana Supreme Court denied writs without comment. State of Louisiana ex rel. Kevin Narcisse v. State of Louisiana, 2011-KH-2831, 98 So.3d 809 (La. 2012); [rec. doc. 1-3, pg. 34].
Petitioner filed his federal habeas corpus petition on October 22, 2012. Petitioner asserts the same claims he asserted on direct appeal and in the state post-conviction proceedings. These claims are as follows: (1) petitioner was subjected to an unduly suggestive and improperly conducted photographic line-up; (2) insufficiency of the evidence4; (3) erroneous denial of petitioner's challenge for cause regarding juror Irving Thomas; (4) prosecutorial misconduct for allowing perjured testimony to go uncorrected; (5) denial of a full and complete appeal because of an incomplete record; (6) improper comment by the trial judge during voir dire; (7) ineffective assistance of counsel because counsel (a) failed to properly investigate and discover the case, (b) failed to present an adequate defense, (c) failed to object and take supervisory writs on bias of ceratin jurors, (d) failed to object to demonstration of a bloody shirt to the jury, and (e) cumulative effect of these errors constituted ineffective assistance; and (8) police officers failed to obtain exculpatory evidence.
Noting that it appeared that petitioner's Third, Fourth, Sixth and Eighth claims were barred by the doctrine of procedural default, the undersigned took no sua sponte action and, instead, instructed the State to address the procedural default doctrine in its Response to the Petition. Petitioner was also provided an opportunity after the State's responsive pleadings to file a Reply. [rec. doc. 10].
The State has filed an Answer [rec. doc. 18, re-filed including a table of contents as rec. doc. 21] and, thereafter, filed the State court record.5 [rec. doc. 26]. Petitioner filed no Reply. This Report and Recommendation follows.
The State argues that petitioner's Third, Fourth, Sixth and Eighth claims are procedurally defaulted. Given the above procedural history and the undersigned's review of the entire state court record, the State's position is well taken.
The scope of federal habeas review is limited by the intertwined doctrines of procedural default and exhaustion. Procedural default exists where (1) a state court clearly and expressly bases its dismissal of a claim on a state procedural rule, and that procedural rule provides an independent and adequate ground for the dismissal, ("traditional" procedural default), or (2) the petitioner fails to properly exhaust all available state remedies, and the state court to which he would be required to petition would now find the claims procedurally barred, ("technical" procedural default). In either instance, the petitioner is deemed to have forfeited his federal habeas claim. Bledsue v. Johnson, 188 F.3d 250, 254-55 (5th Cir. 1999) citing Coleman v. Thompson, 501 U.S. 722, 735 n. 1, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1986) and O'Sullivan v. Boerckel, 526 U.S. 838, 119 S.Ct. 1728, 144 L.Ed.2d 1 (1999).
The record is clear that the following claims are traditionally procedurally defaulted because the state courts relied on one or more procedural rules to deny relief:
Thus, these claims are subject to dismissal with prejudice because they are procedurally barred.
The "traditional" procedural default doctrine applies to bar federal habeas corpus review when a state court declines to address a prisoner's federal claims because the prisoner failed to follow a state procedural rule. Coleman, 501 U.S. at 750, 111...
To continue reading
Request your trial