Gene Mitchell Olivier La. Doc v. Prince
| Decision Date | 19 November 2015 |
| Docket Number | CIVIL ACTION NO. 6:13-cv-0112 SECTION P |
| Parties | GENE MITCHELL OLIVIER LA. DOC #526717 v. WARDEN HOWARD PRINCE |
| Court | U.S. District Court — Western District of Louisiana |
Before the court is a petition for writ of habeas corpus filed pursuant to 28 U.S.C. § 2254 on January 16, 2013 by pro se petitioner Gene Mitchell Olivier.1 Petitioner is an inmate in the custody of the Louisiana Department of Corrections incarcerated at the Elayn Hunt Correctional Center in St. Gabriel, Louisiana. Petitioner attacks his 2007 convictions for aggravated second degree battery and aggravated assault of a peace officer with a firearm entered by the Sixteenth Judicial District Court for St. Martin Parish, Louisiana, for which petitioner was sentenced to consecutive sentences totaling twenty-five years 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 charged with three counts of attempted first degree murder. The charges stemmed from an October 25, 2006 incident wherein petitioner shot two St. Martin Parish Sheriff's Office deputies with a shotgun, Deputy Larry Wiltz and Deputy Larry Landry, and fired the weapon at Deputy Waverson Guidry, who was seeking cover. Deputies Wiltz and Guidry had been called to investigate a gun complaint and Deputy Landry responded to the scene after Deputy Wiltz had been shot.
On August 8, 2007, petitioner pled guilty to two counts of aggravated second degree battery and one count of aggravated assault on a peace officer with a firearm. On November 15, 2007, petitioner was sentenced to serve consecutive sentences totaling twenty-five years imprisonment, ten years for each of the aggravated second degree battery convictions and five years for the aggravated assault on a peace officer with a firearm conviction.
On December 30, 2008, the Louisiana Third Circuit Court of Appeal affirmed petitioner's convictions and sentences. State v. Gene Mitchell Olivier, 2008-520, 2008 WL 5423936 (La. App. 3rd Cir. 2008). The Third Circuit's unpublished opinion reveals that petitioner argued that his sentences wereunconstitutionally excessive.2 Petitioner's request for rehearing was denied on February 11, 2009. [rec. doc. 33-1, pg. 82]. On November 20, 2009, petitioner's request for review in the Louisiana Supreme Court was denied without comment. State v. Gene Mitchell Olivier, 2009-0528, 25 So.3d 786 (La. 2009). Petitioner did not seek further direct review in the United States Supreme Court.
On March 5, 2010, petitioner filed a Motion to Correct an Illegal Sentence in the trial court arguing that under Louisiana law, his sentence was improperly imposed to run consecutively rather than concurrently. [rec. docs. 18, pg. 26-34; 33-1, pg. 114-121]. That motion was denied by the trial court on March 16, 2010. [rec. docs. 18, pg. 35; 33-1, pg. 122]. Petitioner's request for writs in the Third Circuit was denied on November 4, 2010. State v. Olivier, No. KH 10 - 00631 (La. App. 3rd Cir. 2010). [rec. docs. 18, pg. 51; 33-1, pg. 126].3 The Third Circuit found no error in the trial court's denial, that the claim was repetitive under Louisiana Code of Criminal Procedure article 930.4(A) and that the sentences imposed were not illegal citing State v. Moore, 640 So.2d 561 (La. App. 3rd Cir.1994), writ denied, 651 So.2d 858 (La. 1995) and State v. Gedric, 741 So.2d 849 (La. App. 3rd Cir. 1999), writ denied, 751 So.2d 239 (La. 1999).
On March 7, 2011, petitioner filed an application for post-conviction relief in the trial court. He asserted the following claims for relief: (1) that his guilty plea was invalid because the trial court failed to impose sentences in accordance with his Plea Agreement mandating that he be sentenced to 11 years or a minimum of 5 years with rehabilitation; (2) ineffective assistance of counsel because counsel (a) mislead petitioner to plead guilty, informing petitioner that there was a plea agreement as to the sentence which would be imposed, and failing to object to the trial court's failure to adhere to the sentence contained in his Plea Agreement, (b) allowed petitioner to plead guilty in violation of his rights against double jeopardy, and (c) failed to investigate the facts demonstrating a lack of evidence to support the charges; (3) that the trial judge should have recused himself; and (4) the cumulative effect of these errors denied petitioner his equal protection and due process rights. [rec. docs. 18, pg. 56-68; 33-1, pg. 135-156]. The trial court denied this Application on March 30, 2011, noting amongst other reasons, that at his plea hearing petitioner "indicated that he was entering the plea agreement willingly and voluntarily and that no threats or promises other than the plea agreement had been made to him" and that "[a] valid guilty plea operates as awaiver of all non-jurisdictional defects in proceedings that take place prior to the entry of the plea" and that "ineffective assistance of counsel is a non-jurisdictional defect." [Id. at pg. 55 (citations omitted); rec. doc. 33-1, pg. 132].
On May 30, 2012, the Louisiana Third Circuit Court of Appeal denied petitioner's request for writs as follows:
Relator failed to prove there was a plea agreement as to the sentences he would receive or that he was lead to believe he would receive a specific sentence. La. Code Crim. P. art. 930.2. There was no double jeopardy violation, as each count Relator pled guilty to involved a different victim. Relator failed to allege that but for counsel's deficiencies, he would not have pled guilty, consequently, failing to meet his burden of proof under Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052 (1984). Further, Relator did not prove he first filed a motion to recuse in the trial court or present proof of the claim alleged. Uniform Rules - Courts of Appeal, Rule 1-3; La. Code Crim. P. art. 930.2
[rec. docs. 18, pg. 53; 33-1, pg. 204, State v. Olivier, KH 11-00640 (La. App. 3rd Cir. 5/30/12)]. On November 2, 2012, the Louisiana Supreme Court denied writs without comment. State ex rel. Gene M. Olivier, 2012-KH-1361, 99 So.3d 664 (La. 2012).
Petitioner signed the instant petition on January 11, 2013 and the petition was filed by the Clerk of this Court on January 16, 2013. In his original and supplemental petitions and memorandums in support thereof, petitioner asserts the following claims for relief: (1) that his sentences are unconstitutional,disproportionate, excessive and constitute double jeopardy (because the sentences should have been run concurrently); (2) that he received ineffective assistance of trial counsel because counsel failed to pursue an insanity defense; (3) that his guilty plea was involuntary, unintelligent, and unknowingly entered due to ineffective assistance of counsel because counsel (a) failed to advise petitioner that he would have been exonerated from criminal liability on grounds of insanity, and (b) advised petitioner that he would receive no more than an 11 years sentence in exchange for his guilty plea. Petitioner additionally argues that he was denied post-conviction counsel, thereby constituting cause for any procedurally defaulted ineffective assistance of counsel claims pursuant to Martinez v. Ryan, 132 S.Ct. 1309 (2010) and that he received ineffective assistance of appellate counsel because counsel failed to raise ineffective assistance of counsel claims on direct appeal. [See rec. docs. 1, 4, 5 and 15]. The Court does not construe petitioner's pleadings as asserting substantive claims for relief with respect to these latter two arguments, but rather as merely providing an excuse for the procedural default of his substantive claims.
The State has filed an Answer and Memorandum in Opposition to federal habeas corpus relief, to which petitioner filed a Reply. [rec. docs. 28 and 31]. This Report and Recommendation follows.
The State argues that petitioner's first and second claims for relief, that his sentences are unconstitutional, disproportionate, excessive and constitute double jeopardy (because the sentences should have been run concurrently) and that he received ineffective assistance of trial counsel because counsel failed to pursue an insanity defense, are time-barred by the one year limitation period set forth in 28 U.S.C. § 2244. More specifically, the State argues that petitioner should have raised these claims within one year of the decision of the Louisiana Supreme Court on direct appeal, and one year of his sentencing, respectively. That argument is not well taken.
The one year limitation imposed by § 2244(d) begins to run "from the latest of" four triggering specified dates. 28 U.S.C. § 2244(d)(1). That limitations period is tolled, however, while "a properly filed application for State post-conviction or other collateral review with respect to the pertinent judgment or claim is pending." 28 U.S.C. § 2244(d)(2). An application for post-conviction or other collateral review includes any "form of review that is not part of the direct appeal process." Wall v. Kholi, 562 U.S. 545, 131 S.Ct. 1278 (2011). The pertinent judgment refers to the state court judgment authorizing the prisoner'sconfinement. See Magwood v. Patterson, 561 U.S. 320, 333-335, 130 S.Ct. 2788, 2797-2799 (2010) citing 28 U.S.C. § 2254(b)(1).
Petitioner's judgment of conviction did not become final until February 20, 2010, after the delay for filing a writ of certiorari in the United States Supreme Court on direct appeal, that is, ninety days after the Louisiana Supreme Court denied further direct review on November 20, 2009. See Supreme Court Rule 13; Ott v. Johnson, 192 F.3d 510 (5th Cir. 1999); Roberts v. Cockrell, 319 F.3d 690, 694 ...
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