Malcolm James Simon La. Doc v. Cain, CIVIL ACTION NO. 6:13-cv-0784 SECTION P
| Court | United States District Courts. 5th Circuit. United States District Courts. 5th Circuit. Western District of Louisiana |
| Writing for the Court | MAGISTRATE JUDGE HILL |
| Parties | MALCOLM JAMES SIMON LA. DOC # 532876 v. NATHAN CAIN, WARDEN |
| Docket Number | CIVIL ACTION NO. 6:13-cv-0784 SECTION P |
| Decision Date | 13 November 2014 |
MALCOLM JAMES SIMON LA. DOC # 532876
v.
NATHAN CAIN, WARDEN
CIVIL ACTION NO. 6:13-cv-0784 SECTION P
UNITED STATES DISTRICT COURT WESTERN DISTRICT OF LOUISIANA
November 13, 2014
JUDGE DOHERTY
MAGISTRATE JUDGE HILL
REPORT AND RECOMMENDATION
Pro se petitioner Malcolm James Simon filed the instant petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254 on April 12, 2013. Petitioner is an inmate in the custody of the Louisiana Department of Public Safety and Corrections. He is incarcerated at the Avoyelles Correctional Center in Cottonport, Louisiana. Petitioner attacks his 2008 manslaughter conviction entered by the Fifteenth Judicial District Court for Lafayette Parish, for which he was sentenced to thirty 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.
The Lafayette Parish Grand Jury indicted petitioner on the charge of second degree murder for the September 22, 2007 shooting of Michael Onezine. On September 9, 2008, petitioner was found guilty of the responsive verdict of manslaughter. On December 16, 2008, petitioner was sentenced to serve thirty (30) years imprisonment.
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Court-appointed appellate counsel directly appealed petitioner's conviction and sentence to the Louisiana Third Circuit Court of Appeal arguing four assignments of error: (1) insufficiency of the evidence; (2) trial court erred in denying a motion for mistrial when the State attempted to introduce evidence of petitioner's prior bad acts; (3) the trial court erred in denying a motion for mistrial based upon the prosecutor's failure to timely provide transcripts of the interviews of witness; and (4) excessiveness of sentence. Petitioner filed a pro se supplemental brief on direct appeal arguing four additional assignments of error: (1) trial court erred when it denied petitioner's motion to suppress his confession; (2) insufficiency of the evidence; (3) prejudicial admission of circumstantial evidence (a spent and unspent cartridge and picture of a mailbox where the spent cartridge was found); and (4) trial court failed to articulate a factual basis to support the sentence imposed. On December 9, 2009, the Louisiana Third Circuit Court of Appeal affirmed petitioner's conviction and sentence in an unpublished opinion. State of Louisiana v. Malcolm James Simon, 2009 WL 4653743, 25 So.2d 255 (La. App. 3 Cir. 12/9/2009) (Table) [rec. doc. 22-1, pg. 1-31].
On December 30, 2009, petitioner sought a writ of certiorari in the Louisiana Supreme Court. He asserted the following claims for relief: (1) trial court erred in denying petitioner's motion to suppress his confession; (2) insufficiency of the evidence; (3) prejudicial admission of circumstantial evidence (a spent and unspent cartridge and picture of a mailbox where the spent cartridge was found); (4) trial court erred in denying
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a motion for mistrial based on the prosecutor's failure to timely provide transcripts of witness interviews; (5) trial court erred in denying a motion for mistrial when the State attempted to introduce evidence of prior bad acts; and (6) excessiveness of sentence. On September 3, 2010, the Louisiana Supreme Court denied writs without comment. State of Louisiana v. Malcolm James Simon, 44 So.3d 696 (La. 9/3/2010).
On January 25, 2011, petitioner filed a pro se application for post-conviction relief in the District Court. Petitioner raised three claims for relief: (1) the prosecutor violated petitioner's due process rights by untimely disclosing interviews of new witnesses; (2) the prosecutor allowed perjured testimony to go uncorrected; and, (3) ineffective assistance of trial counsel including claims that counsel was ineffective because counsel (a) failed to introduce a police report for the victim's prior attempted murder of petitioner, (b) failed to tell petitioner that his co-defendant had made a statement against him, (c) failed to interview witnesses, (d) failed to obtain an expert to testify about petitioner's state of mind given the victim's prior attempt on his life, (e) failed to properly file a Motion for Speedy Trial, and (f) failed to object to jury charges. [rec. doc. 22-4, pg. 5-31].
On June 27, 2011, the District Judge, noting the State's objections to the application "on the grounds that the issues raised are repetitive, because they were addressed by the court of appeal, or they would have been addressed but for petitioner's inexcusable failure to pursue them on appeal. . . " denied relief pursuant to La. C.Cr.P. art. 930.4(A) and (C). [rec. doc. 1-14, pg. 3].
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On July 26, 2011, petitioner sought review in the Third Circuit Court of Appeal. On June 26, 2012 the Third Circuit denied writs as follows:
"There was no error in the trial court's ruling as to Relator's Claim One. The issue was fully litigated on appeal. La.Code Crim.P. art. 930.4(A). As for Claim Two, Relator failed to meet his burden of proof. La.Code Crim.P. art. 930.2. Finally, in claim Three, Relator asserted ineffective assistance of counsel. However, he offered no proof in support of his claim and failed to prove that, even if counsel's performance was deficient, he was prejudiced by the deficiency. He failed to demonstrate that there was a reasonable probability that but for counsel's unprofessional errors, the result of the proceeding would have been different. Strickland v. Washington, 466 U.S. 688, 104 S.Ct. 2052 (1984); State v. Fuller, 454 So.2d 119 (La. 1984)"
State of Louisiana v. Malcolm James Simon, No. KH 11-00934 (La. App. 3rd Cir. 2012) (unpublished). [Doc. 1-12, pg. 3].
On July 26, 2007, petitioner applied to the Louisiana Supreme Court for writs. Petitioner directed the Louisiana Supreme Court to refer to attached exhibits, namely the application for post-conviction relief filed in the District Court, the writ application filed in the Third Circuit, and the judgments of both courts. He argued that the trial court erred in ruling that petitioner's application for post-conviction relief was repetitive, and that the trial court erred in denying petitioner an evidentiary hearing. [rec. doc. 22-3, pg. 1-10]. On September 16, 2012, the Louisiana Supreme Court denied writs without comment. State of Louisiana ex rel. Malcolm James Simon v. State of Louisiana, 102 So.3d 34 (La. 11/16/2102).
Petitioner filed the instant petition on April 12, 2013. Petitioner presents seven claims for relief, three of which petitioner alleges were raised in his post-conviction
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application and four of which petitioner alleges were argued on direct appeal: (1) late disclosure of witness interviews violated petitioner's Constitutional rights; (2) State allowed perjured testimony to go uncorrected; and (3) ineffective assistance of trial counsel because counsel (a) failed to introduce a police report for the victim's prior attempted murder of petitioner, (b) failed to tell petitioner that his co-defendant had made a statement against him, (c) failed to interview witnesses, (d) failed to obtain an expert to testify about petitioner's state of mind given the victim's prior attempt on his life, (e) failed to properly file a Motion for Speedy Trial, and (f) failed to object to jury charges; (4) insufficiency of evidence; (5) trial court erred in denying petitioner's motion to suppress evidence of his confession; (6) trial court erred in denying a motion for mistrial when the State attempted to introduce evidence of prior bad acts; and (7 ) excessiveness of sentence.
Noting that it appeared that petitioner had not properly exhausted available state court remedies, and thereby technically defaulted on those claims allegedly raised on post-conviction proceedings (Claims (1) through (3) herein because petitioner did not identify and argue each claim in his writ application to the Louisiana Supreme Court rather than merely referring to briefs filed in the lower courts), and that Claim 1 might be procedurally barred because both the trial court and Louisiana Third Circuit Court of Appeal found the claim barred by application of La. Code Crim.P. art. 930.4(A), the undersigned instructed the State to address these issues in its Response to the Petition.1
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Petitioner was also provided an opportunity after the State's responsive pleadings to file a Reply. [rec. doc. 8].
The State has filed an Answer and Memorandum in Opposition to Habeas Corpus Relief [rec. docs. 16 and 17] and, thereafter, the State court record was filed into this record. [rec. docs. 20, 21 and 22]. Petitioner then filed a Reply. [rec. doc. 25]. This Report and Recommendation follows.
I. Procedural Default
The State argues that petitioner's claims were not properly exhausted in the Louisiana state courts. Given the above procedural history and the undersigned's review of the entire state court record, with respect to petitioner's First, Second and Third claims, the State's position is well taken.2
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It is well settled that a petitioner seeking federal habeas corpus relief cannot collaterally attack his state court conviction in federal court until he has exhausted available state remedies. 28 U.S.C. § 2254(b)(1)(A); Rose v. Lundy, 455 U.S. 509, 102 S.Ct. 1198, 71 L.Ed.2d 379 (1982); Minor v. Lucas, 697 F.2d 697 (5th Cir. 1983); Mercadel v. Cain, 179 F.3d 271, 275 (5th Cir. 1999); Fisher v. Texas, 169 F.3d 295, 302 (5th Cir. 1999); Whitehead v. Johnson, 157 F.3d 384,387 (5th Cir. 1998). In order to satisfy the exhaustion requirement, the petitioner must have "fairly presented" the substance of each of his claims to the state courts in a procedurally proper manner. Wilder v. Cockrell, 274 F.3d 255, 259 (5th Cir. 2001). Moreover, each claim must be presented to the state's highest court, even when review by that court is discretionary. O'Sullivan v....
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