Parker v. Cain, Civil Action No. 05-399.

• Decision Date: 09 August 2006
• Docket Number: Civil Action No. 05-399.
• Parties: Kentrell PARKER v. Burl CAIN, Warden.
• Court: U.S. District Court — Eastern District of Louisiana

445 F.Supp.2d 685

Kentrell PARKER v. Burl CAIN, Warden.

Civil Action No. 05-399.

United States District Court, E.D. Louisiana.

August 9, 2006.

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

Kentrell Parker, Angola, LA, pro se.

Battle Bell, IV, District Attorney's Office, New Orleans, LA, for Burl Cain.

ORDER

DUVAL, District Judge.

The Court, after considering the complaint, the record, the applicable law, the Report and Recommendation of the United States Magistrate Judge and plaintiff's frivolous objections filed on August 7, 2006, hereby approves the Report and Recommendation of the United States Magistrate Judge and adopts it as its opinion in this matter.

Petitioner filed "Objection to the Magistrate's Report and Recommendation" in which plaintiff alluded to the facts and findings "in globo" without any reasons or legal argument. As such, his objections are meritless and need not be considered by the Court. Nettles v. Wainwright, 677 F.2d 404, 410 n. 8 (5th Cir. 1982), overruled on other grounds Douglass v. United Serv. Automobile Assoc., 79 F.3d 1415 (5th Cir.1996). Indeed, the failure to pinpoint those portions of the magistrate judge's Report that the district court must specifically consider bars the party from a de novo determination by the district judge of an issue covered in the report. In addition, the Court finds the Magistrate Judge's Report and Recommendation neither to be manifestly unjust nor plainly erroneous. Accordingly,

IT IS ORDERED that the federal petition of Kentrell Parker for habeas corpus relief is DISMISSED WITH PREJDICE.

REPORT AND RECOMMENDATION

SALLY SHUSHAN, United States Magistrate Judge.

This matter was referred to this United States Magistrate Judge for the purpose of conducting a hearing, including an evidentiary hearing, if necessary, and submission of proposed findings of fact and recommendations for disposition pursuant to 28 U.S.C. § 636(b)(1)(B) and (C) and, as applicable, Rule 8(b) of the Rules Governing Section 2254 Cases in the United States District Courts. Upon review of the record, the Court has determined that this matter can be disposed of without an evidentiary hearing. See 28 U.S.C. § 2254(e)(2).¹ Therefore, for all of the following reasons, IT IS RECOMMENDED that the petition be DISMISSED WITH PREJUDICE.

Petitioner, Kentrell Parker, is a state prisoner incarcerated at the Louisiana State Penitentiary, Angola, Louisiana. On November 18, 1999, he was convicted of second degree murder in violation of La. Rev.Stat.Ann. § 14:30.1.² On December 2, 1999, he was sentenced to a term of life imprisonment, without benefit of parole, probation, or suspension of sentence, with credit for time served.³ On March 28, 2001, the Louisiana Fourth Circuit Court of Appeal affirmed his conviction and sentence.⁴ He then filed with the Louisiana Supreme Court a petition for a writ of certiorari⁵ which was denied on March 28, 2002.⁶

On or about March 12, 2003, petitioner filed with the state district court an application Tor post-conviction relief⁷ which was denied on July 17, 2003.⁸ He next filed with the Louisiana Fourth Circuit Court of Appeal an application for writs of certiorari and prohibition⁹ which was denied on the merits on October 24, 2003.¹⁰ He then filed with the Louisiana Supreme Court an application for writs of certiorari and/or review¹¹ which was denied on January 7, 2005.¹²

On or about January 14, 2005, petitioner filed this federal application for habeas corpus relief.¹³ In support of his application, he raises the following claims:

1. Louisiana's statutory scheme setting forth responsive verdicts for second degree murder is unconstitutional;

2. La.C.Cr.P. art. 413(C) is unconstitutional, and petitioner's constitutional rights were violated due to racial discrimination in the selection of the grand jury foreperson;

3. La.Rev.Stat.Ann. § 14:30.1 is unconstitutional;

4. There was insufficient evidence to support petitioner's conviction;

5. The trial court erred in denying the defense motion for a mistrial;

6. The trial court erred in evidentiary rulings; and

7. Petitioner received ineffective assistance of counsel¹⁴

The state concedes that petitioner's federal application was timely filed¹⁵ and does not argue that he failed to exhaust his state court remedies.

Standard of Review

The Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA") comprehensively overhauled federal habeas corpus legislation, including 28 U.S.C. § 2254. Amended subsections 2254(d)(1) and (2) contain revised standards of review for questions of fact, questions of law, and mixed questions of law and fact. Provided that the state court adjudicated the claim on the merits, pure questions of law and mixed questions of law and fact are reviewed under § 2254(d)(1) and questions of fact are reviewed under § 2254(d)(2). Hill v. Johnson, 210 F.3d 481, 485 (5th Cir. 2000).

As to questions of law and mixed questions of law and fact, a federal court must defer to the state court's decision unless it "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)(1): The United States Supreme Court has noted:

§ 2254(d)(1)'s "contrary to" and "unreasonable application" clauses have independent meaning. A federal habeas court may issue the writ under the "contrary to" clause if the state court applies a rule different from the governing law set forth in our cases, or if it decides a case differently than we have done on a set of materially indistinguishable facts. The court may grant relief under the "unreasonable application" clause if the state court correctly identifies the governing legal principle from our decisions but unreasonably applies it to the facts of the particular case. The focus of the latter inquiry is on whether the state court's application of clearly established federal law is objectively unreasonable, and we stressed in Williams[ v. Taylor, 529 U.S. 362, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000)] that an unreasonable application is different from an incorrect one.

Bell v. Cone, 535 U.S. 685, 694, 122 S.Ct. 1843, 152 L.Ed.2d 914 (2002) (citations omitted).

As to questions of fact, factual findings are presumed to be correct and a federal court will give deference to the state court's decision unless it "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)(2); see also Hill, 210 F.3d at 485; 28 U.S.C. § 2254(e)(1).

Facts

On direct appeal, the Louisiana Fourth Circuit Court of Appeal summarized the facts of this case as follows:

Ms. Adrienne Bernard, the victim's mother, testified that her daughter had four children, ranging in age from two to ten years old. Ms. Bernard denied that her daughter kept guns in her house and that she used or sold drugs. Ms. Bernard further stated that her daughter supported her children through various jobs.

Officer Bruce Cranstoun testified that on March 15, 1999, at approximately 3:30 p.m., a woman flagged him down as he drove on Martin Luther King Blvd., and told him there had been a shooting in apartment 4-C of the Melpomene Housing Development. As he approached the apartment building, he saw several people and three children standing outside the entrance. He entered the apartment, and found a woman's body on the floor. He checked for vital signs, notified the police dispatcher of the homicide, and then checked to be sure that no one else was in the apartment. Thereafter, he secured the scene, and awaited the arrival of the coroner and homicide detectives.

Dr. James Traylor, who testified as an expert in forensic pathology, performed the autopsy on the victim's body on March 16, 1999. He opined that a "single perforating tight contact gunshot wound to the left neck" killed the victim. He explained that because the victim suffered a "perforating", or through and through wound, no bullet was recovered from the victim's body. Dr. Traylor classified the wound as "tight contact" because he detected a gun muzzle imprint on the victim's neck.

Officer Terrie Clark, an NOPD 911 operator, testified that all 911 calls are recorded and that she received the defendant's call reporting the shooting at 9:09 a.m. on March 15, 1999. The defendant identified himself by name, and told her that his girlfriend had been shot by two men he saw running from the apartment. The defendant gave her an incorrect address as the scene of the shooting. [FN] [FN] In his 911 call, the defendant told the operator the scene of the shooting was 2319 Martin Luther King Blvd., apartment 4C, which was incorrect. The defendant placed the call from a pay phone across the street from the housing development and then left the area. Consequently, there was no one to direct the officers to the correct location, which was 2339 Martin Luther King Blvd., which is across the breezeway from 2319. When the police arrived at 2319, apartment 4C, the resident turned them away because there had been no shooting at that location. It was not until later that afternoon when Officer Cranstoun was flagged down by a resident of the housing development around 3:30 p.m. that the police located the victim's body. By that time, family members had placed a 911 call giving the operator the correct address.

The tape of the 911 call was played for the jury. In the call the defendant identified himself, and told the operator that he found his girlfriend, shot in the neck, at her apartment. He further stated that he saw two men running from the apartment through the project.

NOPD homicide detective John Deshotel investigated the murder of Kawana Bernard at 2339 Martin Luther King Blvd., apartment 4C. The apartment door was partially open and the victim's body was on the floor near the front door. The body displayed a left head wound with an exit wound at the back of the head. He...