Shaw v. LeBlanc

• Decision Date: 03 March 2020
• Docket Number: CASE NO. 3:19-CV-00681 SEC P
• Parties: TIMOTHY L SHAW #380943 v. JAMES LEBLANC
• Court: U.S. District Court — Western District of Louisiana

TIMOTHY L SHAW #380943 v. JAMES LEBLANC

CASE NO. 3:19-CV-00681 SEC P

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF LOUISIANA MONROE DIVISION

March 3, 2020

JUDGE TERRY A. DOUGHTY

MAG. JUDGE KAREN L. HAYES

REPORT AND RECOMMENDATION

Pro se petitioner Timothy L. Shaw, an inmate incarcerated at the Louisiana State Penitentiary in Angola, filed the instant petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254 on May 29, 2019. [doc. # 1]. Shaw challenges his sentence imposed in the Fourth Judicial District Court, Ouachita Parish. This matter has been referred to the undersigned for review, report, and recommendation in accordance with the provisions of 28 U.S.C. § 636 and the standing orders of the Court.

Because Shaw cannot show he is in custody in violation of the Constitution, laws, or treaties of the United States, or that the state courts' decisions were: (1) contrary to or involved an unreasonable application of clearly established law or (2) based on an unreasonable determination of the facts in light of the evidence presented, Shaw's Petition should be DENIED and DISMISSED WITH PREJUDICE.

Background

The facts and procedural history were summarized by the Louisiana Second Circuit Court of Appeal as follows:

On August 21, 1993, Defendant, age 17; Charles Sumler, age 15; and Levelle Tolliver, an adult; were playing dice with a group of individuals, including Patrick W. Johnson, on the front porch of a home in Monroe. When the game ended in the early morning hours, Johnson took his money and began to leave. As he left the porch and moved toward his vehicle, Defendant and Sumler blocked his path. Both of them pointed guns at Johnson and began pulling the triggers. When the guns did not fire, Tolliver approached Johnson, told him to give up his money and then shot him in the back of the head. Johnson died several hours later. Defendant and Sumler later admitted that they had planned to rob Johnson after the game.

Defendant, Sumler and Tolliver were all charged with second degree murder, in violation of La. R.S. 14:30.1. Tolliver's case was severed from the other two, who were tried together. Following a jury trial, Defendant and Sumler were found guilty as charged. The sentencing court imposed the mandatory sentence of life imprisonment, without benefit of probation, parole or suspension of sentence. Both appealed their conviction and sentence. In a joint opinion, this court found there was sufficient evidence to establish that they had participated in the armed robbery that resulted in Johnson's death, as required to support the convictions for second degree murder. Their convictions and sentences were affirmed. See State v. Shaw, 27,892 (La.App. 2 Cir. 4/3/96), 672 So.2d 237; and State v. Sumler, 27,893 (La.App. 2 Cir. 4/3/96), 672 So.2d 237.

Defendant subsequently filed two motions to correct illegal sentence based on Miller v. Alabama, 567 U.S. 460, 132 S.Ct. 2455, 183 L.Ed.2d 407 (2012) ("Miller"), which held that a mandatory sentencing scheme that denies parole eligibility for those convicted of a homicide committed while the offender was a juvenile violates the Eighth Amendment's prohibition against cruel and unusual punishment. The first motion, filed September 27, 2012, was denied on October 8, 2012, for lack of evidence that Defendant was a juvenile offender. The second motion, filed on October 25, 2012, was denied on April 1, 2013, on the ground that Miller was not retroactive.

In March 2016, the trial court ordered that counsel be appointed to represent Defendant and ordered that his presentence investigation ("PSI") report be forwarded to the court for review.

On March 24, 2016, Defendant filed a pro se motion to correct an illegal sentence, based on the ruling in Montgomery v. Louisiana, — U.S. —, 136 S.Ct. 718, 193 L.Ed.2d 599 (2016) ("Montgomery"), which held that Miller announced a new substantive constitutional rule that was retroactive on state collateral review of defendants whose convictions and sentences were final prior to the decision in Miller. Defendant claimed that a resentence of life with parole was not sufficient under Miller and Montgomery and, instead, that he was entitled to be resentenced to the penalty for the next lesser-included offense of manslaughter.

On July 29, 2016, Defendant's attorney filed separate motions seeking funds to hire an investigator and an expert psychologist or psychiatrist in preparation for the Miller hearing on his motions to correct an illegal sentence and to amend his sentence to manslaughter. Additionally, he filed a motion to disclose any information regarding aggravating and mitigating circumstances.

On August 8, 2016, Defendant filed a memorandum in support of a motion to amend his sentence to manslaughter and argued that the trial court had authority to vacate the jury'sverdict and enter a judgment that he was guilty of the lesser and included offense of manslaughter in violation of La. R.S. 14:31. He also argued that a resentence to life with parole eligibility would not comply with Miller or Montgomery because he would still have to serve an additional 12 years before being eligible for parole consideration; and, thus, it would not be a meaningful opportunity for parole.

On August 9, 2016, Defendant appeared with counsel for the court to consider the issue of parole eligibility. The trial court noted that it had presided over the trial, was familiar with the facts and circumstances of Defendant's case and that he had not been the shooter, but had been a principal in Johnson's homicide. It stated Defendant was still guilty of second degree murder because he planned with Tolliver to rob Johnson, then put a gun to Johnson's head and pulled the trigger before Tolliver interceded and shot Johnson. It further stated that the cases and statutes directed the sentencing court to reconsider the sentence, not the verdict.

The trial court also found that it did not have authority to set aside the jury's verdict of second degree murder, which had been upheld on appeal and had already become final many years ago. It stated that it had no authority to amend Defendant's sentence, which had also been upheld and become final, except to comply with Miller, Montgomery and La. C. Cr. P. art. 878.1, to consider the possibility of parole.

The trial court admitted into evidence the PSI report, as well as the record from the institution where Defendant had been incarcerated for the last 23 years. It denied Defendant's request to present mitigating evidence after concluding that further evidence was unnecessary in light of its intention to simply grant eligibility for parole.

The trial court denied Defendant's motion for funding for an investigator and expert psychologist and psychiatrist on grounds that the information was irrelevant in light of the new sentence. Defendant's motion to amend the sentence under the manslaughter statute was denied as untimely.

Defendant's motion to correct an illegal sentence was denied as moot, in light of the trial court's intended ruling. The trial court vacated Defendant's prior sentence and resentenced him to life imprisonment at hard labor, with the benefit of parole eligibility. Defendant and his attorney objected to the sentence.

On August 10, 2016, Defendant filed a motion to appeal his new sentence. The motion was granted on August 24, 2016.

On September 2, 2016, Defendant's counsel filed a motion to reconsider sentence, which was denied on September 8, 2016. On September 8, 2016, Defendant filed a pro se motion to reconsider sentence. On September 9, 2016, the court ordered the state to respond to the pro se motion. There is nothing in the record indicating there was ever a ruling on this motion.

On September 21, 2016, Defendant filed pro se motions to clarify his sentence and to correct an illegal sentence. These motions were denied on September 22, 2016.

State v. Shaw, 51, 325 (La. App. 2 Cir. 5/17/17), 223 So. 3d 607, 608-10, writ denied, 2017-1182 (La. 5/18/18), 242 So.3d 569.

Shaw appealed, claiming his sentence was unconstitutional. The appellate court confirmed the conviction, and the Louisiana Supreme Court denied writ. Id.

On May 29, 2019, Shaw filed the instant application for writ of habeas corpus, alleging the following duplicitous claims: (1) the State deprived him of liberty without affording him "fair notice" of the legislatively prescribed penalty; (2) the State deprived him of "liberty without affording him due process protection to a sentence legislatively prescribed by the legislature"; (3) "the state court violated the ex post facto clause when it retroactively imposed LSA-R.S. 15:574(E)..."; (4) the State deprived him of liberty "without affording him due process protection of the Eighth Amendment's 'proportionate sentence' announced in Miller [sic]"; and (5) the State deprived him of "due process when it disobeyed a substantive constitutional rule change announced by the U.S. Supreme Court."

On February 13, 2020, the State filed its response. [doc. # 16]. On February 24, 2020, Shaw filed his response. [doc. # 17]. Thus, the motion is ripe.

Law and Analysis

I. Standard of review

Federal courts may provide habeas corpus relief to a state prisoner in accordance with 28 U.S.C. § 2254, as amended by the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"). Under Section 2254(d), after a state court has adjudicated a prisoner's claims on the merits, an application for a writ of habeas corpus may be granted only if the petitioner shows that the adjudication:

(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).

Federal review under § 2254(d)(1) is "limited to the record that was before the state court."...