Mercadel v. Cain

• Citation: 179 F.3d 271
• Decision Date: 21 June 1999
• Docket Number: No. 98-30042,98-30042
• Parties: Peter MERCADEL, Petitioner-Appellant, v. Burl CAIN, Warden, Louisiana State Penitentiary; Richard P. Ieyoub, Attorney General, State of Louisiana, Respondents-Appellees.
• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)

Page 271

179 F.3d 271

Peter MERCADEL, Petitioner-Appellant, v. Burl CAIN, Warden, Louisiana State Penitentiary; Richard P.

Ieyoub, Attorney General, State of Louisiana,

Respondents-Appellees.

No. 98-30042.

United States Court of Appeals, Fifth Circuit.

June 21, 1999.

Peter Mercadel, Angola, LA, pro se.

Theresa A. Tamburo, Asst. Dist. Atty., New Orleans, LA, for Respondents-Appellees.

Appeal from the United States District Court for the Eastern District of Louisiana.

Before KING, Chief Judge, and REAVLEY and BENAVIDES, Circuit Judges.

PER CURIAM:

Peter Mercadel appeals the district court's denial of habeas relief on the merits of his claim that he was deprived of the effective assistance of counsel on direct appeal because his attorney filed only an errors-patent brief on his behalf. We conclude that Mercadel has failed to fairly present this claim to the Louisiana state courts, and therefore that he has failed to exhaust his state court remedies. We therefore vacate the district court's judgment and remand with instructions to dismiss Mercadel's habeas application without prejudice to allow him to exhaust his remedies in Louisiana state court.

I. FACTUAL AND PROCEDURAL HISTORY

In 1976, Peter Mercadel was convicted of second-degree murder in Louisiana state court and sentenced to life imprisonment. In 1977, Mercadel filed an application for a writ of habeas corpus in Louisiana criminal district court, arguing that his attorney's failure to file a timely appellate brief on his behalf violated his rights under the Fifth, Sixth and Fourteenth Amendments. The Louisiana Supreme Court apparently construed his habeas corpus application as a writ of mandamus and granted Mercadel an out-of-time appeal. On June 23, 1980, Mercadel's appellate counsel, Dwight Doskey, filed an appellate brief with the Louisiana Supreme Court on behalf of Mercadel. The appellate brief was, including the cover page, the table of contents, and the certification, only four pages long. After setting forth the statement of the case, the brief addressed only one issue:

ASSIGNMENT OF ISSUE No. 1

Defendant respectfully requests the Court to review the record for error patent on the face of the record. La. Constitution of 1974, Article 1, Section 19, State v. Martin, 329 So.2d 688 (La.1976). In accord with such a review, the defendant asks the Court to reverse his conviction and sentence.

On October 15, 1980, the Louisiana Supreme Court affirmed Mercadel's conviction without a formal opinion. See State v. Mercadel, 391 So.2d 1182 (La.1980).

On April 6, 1983, Mercadel filed another habeas petition in state court, alleging that the evidence was insufficient to support his conviction. After the Louisiana Supreme Court granted Mercadel's motion for a writ of mandamus and ordered the trial court to rule on the habeas petition, the state trial court denied Mercadel collateral relief in a one-page order. In total, the trial court ruled:

In his writ, petitioner contends that the evidence adduced at trial was insufficient to sustain a conviction.

This case was argued before the Supreme Court of Louisiana who affirmed said conviction on October 15, 1980 in case number 66,998.

Accordingly, the writ is denied.

In June 1994, Mercadel filed another application for post-conviction relief, this time in the Louisiana Supreme Court. ¹ In this application, Mercadel raised the issue before us today, i.e., whether he was denied the effective assistance of counsel on direct appeal. Two years later, on June 28, 1996, the Louisiana Supreme Court rejected this claim in a one-word order in which the court stated that his application was "[d]enied."

On May 23, 1997, Mercadel, proceeding pro se, filed an application for habeas relief in the United States District Court for the Eastern District of Louisiana. In his federal habeas application, he argued that he was constructively denied his Sixth Amendment right to the effective assistance of counsel on direct appeal. The district court denied the application; after noting that the Anti-Terrorism and Effective Death Penalty Act of 1996 (AEDPA) applied, the court ruled that the application was untimely under 28 U.S.C. § 2244(d), and, alternatively, that the Louisiana Supreme Court's resolution of the Sixth Amendment issue did not constitute an unreasonable application of clearly established federal law as determined by the Supreme Court under 28 U.S.C. § 2254(d)(1). A panel of this court granted Mercadel a certificate of appealability (COA) to appeal the issue of "whether Mercadel was constructively denied counsel when his appellate attorney filed only an 'errors-patent' brief on his behalf." ² This timely appeal followed.

II. DISCUSSION

A. Adjudication on the Merits

Mercadel filed his habeas application after April 24, 1996, and it is therefore subject to AEDPA. See Lindh v. Murphy, 521 U.S. 320, 336, 117 S.Ct. 2059, 138 L.Ed.2d 481 (1997). Under AEDPA, we may not grant collateral relief

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.

28 U.S.C. § 2254(d). The first question we must consider is whether the Louisiana Supreme Court's one-word denial of Mercadel's June 1994 motion for post-conviction relief is an adjudication on the merits to which we must defer under AEDPA.

In this circuit, the question of whether a state court's decision is an adjudication on the merits turns on "the court's disposition of the case--whether substantive or procedural." Green v. Johnson, 116 F.3d 1115, 1121 (5th Cir.1997) (discussing whether state court's decision constituted a resolution on the merits, the pre-AEDPA equivalent of an adjudication on the merits); see Fisher v. Texas, 169 F.3d 295, 299-300 (5th Cir.1999) (applying Green to adjudication on the merits analysis). Under the test outlined in Green, we determine whether a state court's disposition of a petitioner's claim is on the merits by considering:

(1) what the state courts have done in similar cases; (2) whether the history of the case suggests that the state court was aware of any ground for not adjudicating the case on the merits; and (3) whether the state courts' opinions suggest reliance upon procedural grounds rather than a determination on the merits.

116 F.3d at 1121.

Consideration of these factors leads us to conclude that the Louisiana Supreme Court's denial of relief on Mercadel was on procedural grounds, and therefore not on the merits. The third Green factor does not come into play in this case; the Louisiana Supreme Court's one-word rejection of Mercadel's petition is silent as to the reason for the denial of relief. However, our thorough review of the record convinces us that the first and second Green factors weigh heavily in favor of our treating the state court denial as a procedural decision. Mercadel addressed his July 1994 habeas application to the Louisiana Supreme Court, rather than "the district court for the parish in which the petitioner was convicted." ³ LA.CODE CRIM. PROC. ANN. art. 926(A) ("An application for post conviction relief shall be by written petition addressed to the district court for the parish in which the petitioner was convicted."). Obviously, the Louisiana Supreme Court lacks original jurisdiction to hear the merits of state prisoners' habeas petitions; its normal role is, of course, to review the decisions made by Louisiana state courts that are granted original jurisdiction to hear such claims. Thus, the history of the case suggests that the Louisiana Supreme Court was aware of a ground for not adjudicating the case on the merits; article 926(E) of the Louisiana Code of Criminal Procedure provides that "[i]nexcusable failure of the petitioner to comply" with the filing requirements "may be a basis for dismissal of his application."

Further, the first Green factor, "what the state courts have done in similar cases," Green, 116 F.3d at 1121, suggests strongly that the Louisiana Supreme Court did not adjudicate the merits of Mercadel's Sixth Amendment claim. The Louisiana Supreme Court has consistently refused to consider the merits of state court prisoners' habeas petitions originally filed in its court. See, e.g., State v. Shoemaker, 558 So.2d 597, 597 (La.1990) (stating that habeas petition was "[n]ot considered" because petitioner "has not petitioned the juvenile and district courts for the relief he now seeks," and advising that petitioner should "present his claims to the appropriate lower courts") (citing LA.CODE CRIM. PROC. ANN. art. 926); State ex rel. Lay v. First Circuit Court of Appeal, 541 So.2d 853, 853-54 (La.1989) (denying relief to habeas petitioner because "[t]here is no indication that relator applied for and has been denied post conviction relief in the district court. Relator should file his application in the court below...."); State v. Bob, 541 So.2d 863, 863 (La.1989) (stating that habeas relief was "[d]enied" because petitioner "must first seek relief from trial court by application for post-conviction relief...."); State v. Washington, 533 So.2d 5, 5-6 (La.1988) (same); State v. Miller, 508 So.2d 815, 815 (La.1987) (same). Thus, if the Louisiana Supreme Court was aware of the fact that the filing was improper, it appears that it would have dismissed the petition pursuant to Louisiana Code of Criminal Procedure art. 926(E) as a matter of course.

In sum, we conclude that the AEDPA deference scheme outlined in 28 U.S.C. § 2254(d) does not apply to Mercadel's application. The obvious procedural defect in Mercadel's filing of his petition in the Louisiana Supreme Court instead of the district court, coupled with the Louisiana Supreme Court's consistent practice of denying such improperly-filed petitions without considering the merits of...