Higginbotham v. State

• Decision Date: 18 March 2016
• Docket Number: No. 14–30753.,14–30753.
• Citation: 817 F.3d 217
• Parties: Bobby D. HIGGINBOTHAM, Petitioner–Appellant v. State of LOUISIANA, Respondent–Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

817 F.3d 217

Bobby D. HIGGINBOTHAM, Petitioner–Appellant

v.State of LOUISIANA, Respondent–Appellee.

No. 14–30753.

United States Court of Appeals, Fifth Circuit.

March 18, 2016.

Bobby D. Higginbotham, Waterproof, LA, pro se.

Molly Frances McEacharn, District Attorney's Office, Tallulah, LA, Linda Kincaid Watson, Esq., District Attorney's Office, Saint Joseph, LA, for Respondent–Appellee.

Before KING, JOLLY, and PRADO, Circuit Judges.

PER CURIAM:

Petitioner–Appellant Bobby Higginbotham was convicted by a jury of malfeasance in office and felony theft in Louisiana state court. Higginbotham petitions this court for federal habeas relief pursuant to 28 U.S.C. § 2254, contending that he was denied meaningful appellate review because of an incomplete trial transcript and that he was denied his right to counsel at trial. The state appellate court held that there was no error on either point. Because Higginbotham fails to show that the state court's decision was contrary to clearly established law or based on an unreasonable determination of the facts, we AFFIRM the judgment of the district court denying the § 2254 petition.

I. FACTUAL AND PROCEDURAL BACKGROUND

Petitioner–Appellant Bobby Higginbotham was charged with one count of public contract fraud, one count of malfeasance in office, and one count of felony theft, arising out of actions taken by Higginbotham during his tenure as mayor of Waterproof, Louisiana.¹ Louisiana v. Higginbotham, 122 So.3d 1, 5 (La.Ct.App.2012). Early in the state court proceedings, the state trial court disqualified Higginbotham's original counsel based on a conflict of interest. Higginbotham told the court that another attorney would represent him, but that attorney withdrew as counsel before the scheduled trial date of October 26, 2009.² Higginbotham thereafter "sought numerous continuances of the case relating to his purported unsuccessful efforts to obtain counsel." Id. at 6. The court ultimately continued the trial to March 29, 2010, and ordered Higginbotham to appear on February 24, 2010, "with enrolled counsel or inform the court at that time if [he] intend[ed] to represent himself."

At the February status conference, Higginbotham refused to answer whether he intended to enroll counsel, and the trial court appointed a public defender to assist, but not to formally represent, Higginbotham. The week before trial, the prosecution provided its discovery materials to Higginbotham. Higginbotham filed a continuance motion, arguing that he had insufficient time to review the discovery materials before the trial date. On the day that the trial was set to begin, the court conducted a hearing where Higginbotham indicated that he intended to retain an attorney and would need the trial continued for an additional 60 days. The court denied the motion, however, noting that a defendant could not manipulate the proceedings to cause further delay. Higginbotham thereafter filed an emergency application for a supervisory writ with the state appellate court on the continuance issue. Once trial began, Higginbotham represented himself during voir dire and during the majority of the trial, with an attorney from the Public Defender's Office assisting Higginbotham as standby counsel.³

On April 1, 2010, the state appellate court stayed the trial proceedings, and on April 8, 2010, granted Higginbotham's writ application, granting a recess to allow Higginbotham to review the discovery materials and prepare a defense. During the recess, Higginbotham retained counsel and discovered that the testimony of two prosecution witnesses was not recorded. Higginbotham moved for a mistrial, and the trial court denied that motion. Higginbotham sought another writ with the state appellate court, and the higher court granted Higginbotham's writ application in part, declaring a mistrial with respect to only the public contract fraud count. The state trial court granted the partial mistrial accordingly, and trial on the remaining charges resumed on May 19, 2010.

The jury unanimously convicted Higginbotham of the remaining two charges: malfeasance in office and felony theft. He was sentenced to five years of hard labor, two years suspended, for malfeasance and seven years hard labor, three years suspended, for felony theft. His convictions and sentence were initially reversed by the state appellate court, but were affirmed on rehearing. Higginbotham, 122 So.3d at 17, 34. The Louisiana Supreme Court denied his application for a writ of certiorari. Louisiana v. Higginbotham, 116 So.3d 658 (La.2013) (mem.).

Higginbotham then filed the instant application pursuant to 28 U.S.C. § 2254.⁴ The magistrate judge issued a report and recommendation, recommending the district court deny Higginbotham's § 2254 petition. The district court adopted the magistrate judge's report and recommendation, denied Higginbotham's § 2254 petition, and denied Higginbotham's initial request for a certificate of appealability. Ultimately, Higginbotham was granted a certificate of appealability on two issues: (1) whether he was denied meaningful appellate review because of the missing trial transcripts and (2) whether he was denied the right to counsel during trial.

II. STANDARD OF REVIEW

"We review the district court's findings of fact for clear error and review its conclusions of law de novo, applying the same standard of review to the state court's decision as the district court." Ortiz v. Quarterman, 504 F.3d 492, 496 (5th Cir.2007). Pursuant to the Antiterrorism and Effective Death Penalty Act (AEDPA), Higginbotham is not entitled to federal habeas relief unless the state court's adjudication of his 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.

28 U.S.C. § 2254(d)(1)-(2).

"The question under AEDPA is not whether a federal court believes the state court's determination was incorrect but whether that determination was unreasonable—a substantially higher threshold."

Schriro v. Landrigan, 550 U.S. 465, 473, 127 S.Ct. 1933, 167 L.Ed.2d 836 (2007).⁵ "A state court's determination that a claim lacks merit precludes federal habeas relief so long as ‘fairminded jurists could disagree’ on the correctness of the state court's decision." Harrington v. Richter, 562 U.S. 86, 101, 131 S.Ct. 770, 178 L.Ed.2d 624 (2011) (quoting Yarborough v. Alvarado, 541 U.S. 652, 664, 124 S.Ct. 2140, 158 L.Ed.2d 938 (2004) ). Accordingly, "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." Id. at 103, 131 S.Ct. 770.

III. INCOMPLETE TRIAL TRANSCRIPT

Higginbotham first contends that missing portions of the trial transcript violated his right to due process because he lacked the opportunity for meaningful appellate review of two claims: (1) that evidence from his dismissed count was used to prove his guilt on the other counts and (2) that he was denied a peremptory strike. "The right of an accused in a criminal trial to due process is, in essence, the right to a fair opportunity to defend against the State's accusations." Chambers v. Mississippi, 410 U.S. 284, 294, 93 S.Ct. 1038, 35 L.Ed.2d 297 (1973). Accordingly, "if a State has created appellate courts as ‘an integral part of the ... system for finally adjudicating the guilt or innocence of a defendant,’ the procedures used in deciding appeals must comport with the demands of the Due Process and Equal Protection Clauses of the Constitution." Evitts v. Lucey, 469 U.S. 387, 393, 105 S.Ct. 830, 83 L.Ed.2d 821 (1985) (alteration in original) (citation omitted) (quoting Griffin v. Illinois, 351 U.S. 12, 18, 76 S.Ct. 585, 100 L.Ed. 891 (1956) ). However, "a complete verbatim transcript" is not always required to ensure that a defendant's right to meaningful appellate review is satisfied. See Moore v. Wainwright, 633 F.2d 406, 408 (5th Cir.1980) ("[T]he state is not obligated to automatically supply a complete verbatim transcript."). Accordingly, the record is "adequate for full appellate review" so long as it contains the portions necessary to address the alleged errors below. Schwander v. Blackburn, 750 F.2d 494, 497–98 (5th Cir.1985) (quoting State v. Francis, 345 So.2d 1120, 1125 (La.1977) ). Moreover, claims based on incomplete transcripts must show that "the absence of such a transcript prejudiced [the defendant's] appeal." Mullen v. Blackburn, 808 F.2d 1143, 1146 (5th Cir.1987).⁶

Higginbotham fails to show that the missing portions of the transcript prejudiced his appeal as to either claim. First, there was no prejudice as to the "other crimes" evidence because the state appellate court held that the evidence was admissible under the Louisiana rules of evidence and therefore "[t]here was no abuse of the trial court's discretion." Higginbotham, 122 So.3d at 23 ; see also Fairman v. Anderson, 188 F.3d 635, 641 (5th Cir.1999) ("[L]egal conclusions that are explicitly grounded in state law may not be reviewed on federal habeas."). Moreover, the state appellate court held that "[t]he evidence of defendant's guilt of the remaining two counts was overwhelming and the guilty verdicts were surely unattributable to any error." Higginbotham, 122 So.3d at 22. Higginbotham has not shown that this holding was based on an "unreasonable determination of the facts." 28 U.S.C. § 2254(d)(2).

Second, as to Higginbotham's claim that he was denied a peremptory strike, the state appellate court concluded that, as a matter of fact, the parts of the record that were not missing did "not show that the trial court's count of peremptory challenges [used by Higginbotham] [wa]s...