Doc v. Warden La. State Penitentiary, CIVIL ACTION NO. 6:14-cv-0840 SECTION P

CourtUnited States District Courts. 5th Circuit. United States District Courts. 5th Circuit. Western District of Louisiana
Writing for the CourtMAGISTRATE JUDGE HILL
Docket NumberCIVIL ACTION NO. 6:14-cv-0840 SECTION P
Decision Date29 June 2015




June 29, 2015




Pro se petitioner Moses Buchanan filed the instant petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254 on April 15, 2014. 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 September 26, 2007 conviction for armed robbery for which he was sentenced on April 4, 2008 to forty years imprisonment by the Twenty-Seventh Judicial District Court for St. Landry Parish, Louisiana.

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.


The facts surrounding the crime and trial testimony were summarized by the Third Circuit as follows:

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On the evening of August 26, 2006, a man entered Kiki's Drive-Thru Daiquiri Shop in Opelousas, Louisiana, holding his crotch, and requesting to use the restroom. Wanda Robin was working behind the bar and her son, Ryan Robin, her niece, Lindsey Johnson, and Justin Fontenot were sitting at the bar having drinks. The man was directed to the restroom and departed the bar soon thereafter. About fifteen to twenty minutes later, the man returned to the bar with a shotgun, pointed the gun at everyone, and yelled at them to get down. He then pointed the gun at Wanda and instructed her to open the register. After Wanda handed over the cash from the register, the robber instructed everyone not to move or they would die, and he fled the bar. Following a brief investigation, petitioner was arrested on August 29, 2006, and charged with armed robbery."

State v. Buchanan, 36 So.3d 1076, 1078 (La. App. 3rd Cir. 2010).

Following a two day jury trial, which began on September 25, 2007, the jury found petitioner guilty as charged. Three of the four eyewitnesses present during the robbery (Wanda Robin, Ryan Robin and Justin Fontenot) identified petitioner as the perpetrator from a pre-trial photo line-up. At trial, all three of these eyewitnesses also identified petitioner as the person who robbed the bar. The remaining eyewitness (Lindsey Johnson) testified that she was not able to identify the robber in the pre-trial photo line-up, but at trial she was certain of her identification of petitioner as the perpetrator of the crime. Id. at 1079. Three of the four eyewitnesses (Ryan Robin, Lindsey Johnson and Justin Fontenot) had two opportunities to view petitioner the night of the armed robbery, once when petitioner entered the bar prior to the offense asking to use the restroom and a second time when petitioner entered the bar fifteen to twenty minutes later to commit the armed robbery. Id. at 1080. There was also corroborating testimony from Richard Griffin who placed petitioner at the scene. Griffin identified petitioner in court as one of

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two persons he drove to the bar on the evening of the armed robbery. Id. at 1082.

On May 5, 2010, the Louisiana Third Circuit Court of Appeal affirmed petitioner's conviction and sentence. State v. Buchanan, 36 So.3d 1076 (La. App. 3rd Cir. 2010). The Third Circuit's opinion reveals that petitioner asserted the following assignments of error: (1) that there was insufficient evidence to support petitioner's conviction; (2) that the trial court erred in allowing the State to effectively use petitioner's decision to exercise his right to remain silent against him in an attempt to rehabilitate Officer Roylis Gallow; (3) that petitioner's right to confrontation was denied when statements of a confidential informant or cooperative individual (CI) as to petitioner's description and identity were admitted; (4) that it was error for the trial court to instruct the jury that an investigator need not reveal the identity of a CI and consequently deny petitioner the opportunity to cross-examine the CI at trial; and (5) that petitioner's sentence was excessive. The Third Circuit did not consider petitioner's second, third or fourth claims under La. C. Crim. P. art. 841(A) because counsel did not make a contemporaneous objection at trial. See Id. at 1082-1083. Petitioner did not seek further direct review in the Louisiana Supreme Court.

Petitioner filed an Application for State Post-Conviction relief on April 28, 2011, in which he raised ineffective assistance of counsel claims and a claim that the trial court erred when, over defense objection, the prosecutor was allegedly permitted to go outside the scope of direct on cross-examination. An evidentiary hearing was held on April 26, 2012, at the conclusion of which, the Application was denied. [rec. doc. 9-1, pgs. 69-71;

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rec. pg. 159-258].

Petitioner sought writs in the Louisiana Third Circuit Court of Appeal. The writ application was denied by the Third Circuit on May 20, 2013, the court finding "no error in the trial court's denial of [petitioner's] Application for Post-Conviction Relief . . . ." [rec. doc. 9, pg. 1, State v. Buchanan, 2012-KH-0841 (La. App. 3rd Cir. 2013)].

Petitioner sought writs in the Louisiana Supreme Court on June 11, 2013. [rec. doc. 9, pgs. 2-30]. The Louisiana Supreme Court denied writs without comment on March 21, 2014. State ex rel. Buchanan v. State, 2013-KH-1677, 135 So.3d 610 (La. 2013).

Petitioner signed the instant federal habeas corpus petition on April 14, 2014, and it was received and filed by the Clerk of this Court on April 15, 2014. Petitioner asserts the following claims for relief: (1) ineffective assistance of counsel because counsel (a) failed to object to Officer Gallow's testimony in which he referred to petitioner's alleged invocation of his right to counsel and post-arrest silence, allegedly prohibited by Doyle v. Ohio, 426 U.S. 610, 96 S.Ct. 2240, 49 L.Ed.2d 91 (1976), (b) failed to effectively handle issues associated with a confidential informant (CI), by not objecting to testimony regarding information received by police from a CI on confrontation clause grounds, failing to object to the trial court's instruction to the jury as to why the identity of a CI need not be disclosed, and failing to call the CI to testify at trial when the identity of the CI had allegedly been disclosed by the State during discovery, (c) failed to file pre-trial motions, or a motion to hire an investigator, (d) failed to impeach three of the State's

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witnesses (Richard Griffin, Kathy Victor and Jeremy Victor) by questioning them about alleged prior convictions, (e) failed to file a motion to suppress information provided by the CI to police and statements relating to petitioner's post-arrest silence, (f) failed to file a Motion in Limine excluding petitioner's post-arrest statement to police, and (g) labored under a conflict of interest - that counsel had previously represented the State's witness Richard Griffin; and (2) the trial court erred by overruling petitioner's objection that the State's questioning of Officer Gallow was outside the scope of the direct examination.

The State has filed an Answer [rec. docs. 15 and 16], to which petitioner filed a Reply. [rec. doc. 17]. This Report and Recommendation follows.

Standard of Review

This habeas petition was filed on April 15, 2014; therefore the standard of review is set forth in 28 U.S.C. § 2254(d), as amended in 1996 by the Antiterrorism and Effective Death Penalty Act (AEDPA). Knox v. Johnson, 224 F.3d 470, 476 (5th Cir. 2000); Orman v. Cain, 228 F.3d 616, 619 (5th Cir. 2000).1 AEDPA substantially restricts the scope of federal review of state criminal court proceedings in the interests of federalism, comity, and finality of judgments. Montoya v. Johnson, 226 F.3d 399, 403-04 (5th Cir. 2000)

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citing Teague v. Lane, 489 U.S. 288, 306, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989) and Williams v. Taylor, 529 U.S. 362, 120 S.Ct. 1495, 1516, 146 L.Ed.2d 389 (2000)2 (noting that AEDPA "placed a new restriction on the power of federal courts to grant writs of habeas corpus to state prisoners").

Title 28 U.S.C. § 2254(d) as amended, states as follows:

(d) An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim -

(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or

(2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.

Under the deferential scheme of...

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