French v. Carter

• Decision Date: 16 August 2012
• Docket Number: Case No. CV410-141
• Parties: EUGENE FRENCH, Petitioner, v. ALAN CARTER, Respondent.
• Court: U.S. District Court — Southern District of Georgia

EUGENE FRENCH, Petitioner,

v.ALAN CARTER, Respondent.

Case No. CV410-141

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF GEORGIA SAVANNAH DIVISION

Dated: August 16, 2012

REPORT AND RECOMMENDATION

Convicted of sexually molesting his daughter ("BF") and one of her friends ("AS"), French v. State, 288 Ga. App. 775 (2007), Eugene French petitions this Court for 28 U.S.C. § 2254 habeas relief. Doc. 1.¹ In a prior Order the Court concluded that all but two of his claims must be denied and then directed further briefing. Doc. 59 at 56-71. Those two claims (Grounds 12 & 13) are: (1) that the state violated French's Confrontation Clause rights when it applied a state law evidentiary rule to prevent him from impeaching his daughter; and (2) that his trial andappellate counsel, Lorenzo C. Merritt, was ineffective in failing to perfect the trial record so that such claim could be heard on direct appeal (because of that omission, the state appellate court refused to hear it). Doc. 59 at 56-71. The Court ordered further briefing. Id. at 71. The briefs have arrived, so the case is ready to proceed.

I. STANDARD OF REVIEW

In § 2254 cases, state habeas court rulings on fully adjudicated issues must "be given the benefit of the doubt," Felkner v. Jackson, ___ U.S. ___, 131 S. Ct. 1305, 1307 (2011) (quotes and cite omitted), which means that this Court cannot disturb them unless they

(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 States² ; 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.

28 U.S.C. § 2254(d) (footnote added). This is a highly deferential, "difficult to meet" standard that petitioners must overcome. Harrington v. Richter, 562 U.S. ___, 131 S. Ct. 770, 786 (2011); Cullen v. Pinholster, ___ U.S. ___, 131 S. Ct. 1388, 1398 (2011). "[A] state prisoner must show that the state court's ruling on the claim being presented in federal court was so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement." Harrington, 131 S. Ct. at 786-87, quoted in Hill v. Humphrey, 662 F.3d 1335,1345 (11th Cir. 2011) (en banc). And "2254(d) applies even to summary state court opinions, as well as to opinions that do not cite Supreme Court precedent." Means v. Sec'y, Dep't of Corrs., 433 F. App'x 852, 853 (11th Cir. 2011) (citing Harrington, 131 S. Ct. at 784). So if part or all of a state court's decision is unaccompanied by any legal analysis or explanation, the petitioner must still show that there was no reasonable basis for the state court to deny relief. Johnson v. Sec'y, Dep't of Corrs., 643 F.3d 907, 930 n. 9 (11th Cir. 2011).³ This Court alsomust presume state court factual determinations to be correct; petitioners must rebut that presumption by clear and convincing evidence. 28 U.S.C. § 2254(e).

II. ANALYSIS

The Court explained in its prior order that the state trial judge erred under Georgia law by barring French from presenting evidence showing that BF had falsely accused him of kidnapping at a family get-together some years after the alleged molestation. Doc. 59 at 57-68. Grounds 12 and 13 ultimately turn on whether Merritt's failure to perfect the record at trial with evidence of the false allegation amounted to ineffective assistance of counsel. As respondent failed to brief the issue adequately, the Court ordered him to submit a follow-up brief discussing whether an evidentiary hearing was warranted "to adduce the evidence Merritt failedto proffer, and also [to] show why the state habeas judge's ruling is not "§ 2254(d)-unreasonable."

A. Need for a Hearing

In French's latest response, he attached several affidavits from family members who recounted the circumstances of BF's false kidnapping allegation. See doc. 70 at 8-11 (affidavits from Vera Yvonne French (mother), LaZundra Patterson (sister), Carmilla French (wife), and Antwon Francois French (son). He was unable to obtain a police report of the incident. But he had not attempted to do so until 2012, and by then any records had been destroyed. Id. at 12 (May 4, 2012 Georgia Open Records Act effort to obtain a "911 CAD Printout"; "no records were found (five (5) year retention").

The affidavits were dated June 26, July 3, and July 6, 2009, doc. 70 at 8-11, and evidently were prepared in anticipation of the state habeas hearing conducted on July 9, 2009. Habeas Tr. at 5. French insists that he

submitted four affidavits with [his] state habeas brief in support of [his] petition, of persons who were witnesses to the false allegations of kidnapping[,] and [he also says he included them with] his federal brief, and now re-submits them with [his latest] response.

Doc. 70 at 1-2. There is some support for his assertion, since at the start of the state habeas hearing he sought to introduce "a few affidavits." Habeas Tr. at 5. He did not then identify them, however, and he never says whether the affidavits he has submitted here are the same affidavits referenced during the state hearing. Assuming that they are the same documents, the respondent successfully objected to their introduction at the state habeas hearing on timeliness and confrontation grounds. Id. at 5-8. French had failed to serve them on the state prior to the hearing, and none of the affiants were present at the hearing to be available for cross-examination. Id. Moreover, this Court has been unable to locate these affidavits in any prior filings on its docket. In other words, French failed to perfect the record before the state habeas court in much the way that he faults Merritt for failing to perfect it at trial.

During state habeas proceedings, "the prisoner must be diligent in developing the record and presenting, if possible, all claims of constitutional error. If the prisoner fails to do so, himself or herself contributing to the absence of a full and fair adjudication in state court, § 2254(e)(2) prohibits an evidentiary hearing to develop the relevant claims in federal court, unless the statute's other stringent requirements aremet." Williams v. Taylor, 529 U.S. 420, 437 (2000). Those "stringent requirements," that the claim be based on a new rule of law or on facts undiscovered despite due diligence, are not implicated here. 28 U.S.C. § 2254(e)(2)(A)(i)&(ii). A prisoner might still win a hearing, however, where "the facts underlying the claim [are] sufficient to establish by clear and convincing evidence that but for constitutional error, no reasonable factfinder would have found the applicant guilty of the underlying offense." 28 U.S.C. § 2254(e)(2)(B). While the state trial court erred in this case by excluding some evidence relevant to the question of BF's credibility, it simply is not the sort of "smoking gun" evidence establishing clearly and convincingly that no juror could convict French of molesting his victims. Cf. United States v. Frederick, 683 F.3d 913, 915 (8th Cir. 2012) (trial court's limitation on sexual abuse defendant's cross-examination of his victims regarding their prior allegedly false accusations of sexual abuse against bus driver and school teacher did not violate his Confrontation Clause rights; evidence was too attenuated to provide more than minimal probative value, as evidence was inconclusive as to falsity of prior accusations). Since none of the § 2254(e)(2) exceptions apply, French's new evidence, "has no bearing on § 2254(d)(1)review." Cullen v. Pinholster, ___ U.S. ___, 131 S. Ct. 1388, 1400 (2011). In other words, French "must overcome the limitation of § 2254(d)(1) on the record that was before the state court." Id. He has not done so.

B. Grounds 12 and 13

Respondent contends that the state habeas judge properly found Ground 12 to be procedurally defaulted. Doc. 64 at 2. Citing Coleman v. Thompson, 501 U.S. 722, 750 (1991) (a state prisoner who defaults on his federal claims in state court because of a state procedural rule is barred from federal habeas relief unless the prisoner can show cause and prejudice), the state says this Court should defer to the French court, which refused merits review on direct appeal "because Petitioner did not perfect the record with a sufficient proffer of the excluded evidence, [so] he would not be heard to complain on appeal that the trial court erred in granting the state's motion in limine." Id. While it is true that "Petitioner did not perfect the record" and thus defaulted the issue, this Court's last Order explained: (a) Merritt allegedly authored that failure; (b) French rests his IAC claim against Merritt on that very basis; and (c)IAC can supply cause to overcome such default.⁴ The state did not address those points in its initial brief or in its response to the Court's prior order. Doc. 64 at 1-2 (state's response).⁵ It is of no moment, however, since Merritt's ineffectiveness on the same issue underscores Ground 13, in which French faults him for failing to round up and perfect the record with the missing evidence.

Respondent nevertheless asks the Court to defer to the state habeas court's ruling that French's IAC claim has no merit. Id. at 2-8. For simplicity's sake, the Court will put § 2254(d)(1) deference to the side for now.⁶ Instead, it will consider French's IAC claim on the merits to determine whether Merritt rendered deficient performance by failing to perfect the record.

Ineffective assistance of counsel claims, even when reviewed de novo, are subject to a standard that packs its own internal layer of deference. Strickland v. Washington, 466 U.S. 668 (1984). "[A] defendant must show both deficient performance by counsel and prejudice. . . ." Knowles v. Mirzayance, 556 U.S. 111, 122 (2009). Thus, French must show that his lawyer's representation fell below an objective standard of reasonableness, St...