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Case 5:07-cv-01872-TS-MLH Document 16 Filed 04/13/10 Page 1 of 16 PageID #: 448
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`UNITED STATES DISTRICT COURT
`WESTERN DISTRICT OF LOUISIANA
`SHREVEPORT DIVISION
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`ALISHA DISOTELL
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`CIVIL ACTION NO. 07-cv-1872
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`VERSUS
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`JUDGE STAGG
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`WARDEN LOUISIANA CORRECTIONAL MAGISTRATE JUDGE HORNSBY
`INSTITUTE FOR WOMEN
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`REPORT AND RECOMMENDATION
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`Introduction
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`Alisha Jean Disotell (“Petitioner”) pleaded guilty to manslaughter in the Caddo Parish
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`District Court. She received a sentence of 30 years, and it was affirmed on appeal. State v.
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`Disotell, 882 So.2d 1183 (La. App. 2d Cir. 2004), writ denied, 896 So.2d 1000 (La. 2005).
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`Petitioner later filed an application for post-conviction relief in the state court. She now
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`seeks federal habeas relief. It is recommended, for the reasons set forth below, that her
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`petition be denied.
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`Relevant Facts
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`Petitioner pleaded guilty, and the factual basis (as is customary in Louisiana state
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`courts) was not detailed, so the only sources of facts regarding the crime are the police
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`reports and related documents. The facts set forth below are taken from those documents.
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`They are not findings of fact, but they are the background facts available to provide context
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`to Petitioner’s claims.
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`

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`Case 5:07-cv-01872-TS-MLH Document 16 Filed 04/13/10 Page 2 of 16 PageID #: 449
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`The police reports indicate that the victim, Drexell McBride, was drinking heavily at
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`Rusty’s Pub one evening in July 2002. The victim’s friend said that he was a heavy drinker
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`and had prior relations with prostitutes. The victim was seen in the company of Petitioner,
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`an admitted prostitute, at Rusty’s that evening.
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`Virginia Harris, an employee at Rusty’s, told police that the victim was intoxicated
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`that evening and in the company of a female prostitute. Harris could not identify the woman,
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`but she provided a physical description. She said that the prostitute told her, as she sat in
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`McBride’s van, that she was going to drive the intoxicated man home and then take a cab,
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`which McBride would pay for, to her home. Harris said McBride told her that his driver was
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`a prostitute. Harris said that she told the woman that nothing better happen to McBride
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`because he was like family to her.
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`Persons later spotted the McBride’s van in a park off Lakeshore Drive near the
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`American Legion building. McBride was in the driver’s seat, slumped over into the
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`passenger seat. Police and an ambulance were called, but McBride died on the way to the
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`hospital. Police reported that McBride’s wallet was missing, and it was never found. The
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`coroner’s report showed that McBride died from a single gunshot wound that entered the left
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`chest, lacerated the left lung and the aorta, with the bullet lodging in a muscle of the back.
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`The coroner reported that the victim’s blood alcohol level was .291 percent.
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`The police who investigated the crime left Rusty’s and went to the nearby Travel
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`Lodge on Greenwood Road, which they knew was frequented by prostitutes and drug
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`Page 2 of 16
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`Case 5:07-cv-01872-TS-MLH Document 16 Filed 04/13/10 Page 3 of 16 PageID #: 450
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`abusers. They asked the management if a prostitute was staying there who met the suspect’s
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`description. The officers were directed to Room 133, where a white female fitting that
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`description was staying with a black male. The officers conducted a knock and talk at the
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`room. After much delay, the female finally opened the door and came out with a black male.
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`The officers saw another black male in the room. An officer read Petitioner her Miranda
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`rights. Petitioner said she understood and agreed to speak with the officer. He informed
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`Petitioner that the matter was serious, and she immediately asked, “Is this about the guy in
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`the van last night?” She then excitedly described how the man attempted to rape her, causing
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`her to shoot him in self-defense. Petitioner never explained just how McBride attempted the
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`rape, she merely said that it happened. She also said McBride attempted to take her purse
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`and struck her.
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`Petitioner told the officer that she ran from the scene of the shooting to Cotten’s
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`Grocery, where she used a pay phone to call her boyfriend, who then picked her up. The
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`boyfriend, who was one of the black males in the room, denied picking up Petitioner, but he
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`added that intoxication made it difficult to remember whether he picked her up. Petitioner
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`allowed the officers to take from the motel room her .380 caliber Jennings by Bryco pistol
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`and five rounds of PMC .380 caliber ammunition.
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`Petitioner was first placed in the Shreveport city jail, and she was later transferred to
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`the Caddo Correctional Center. A female inmate who was being released from CCC told
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`officers that she was going to “drop a dime” on Petitioner. She then told them that Petitioner
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`had been housed with her in the city jail and had shown her crack cocaine that she had hidden
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`in her body. Petitioner had been asking inmates if they had a pipe to use to smoke the drugs.
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`Petitioner was confronted and initially denied having drugs. As a strip search began, she
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`handed over eight plastic baggies of crack cocaine.
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`A grand jury indicted Petitioner for manslaughter. She agreed to plead guilty to that
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`charge, and the prosecutor agreed that the drug charges would not be pursued. Petitioner
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`faced a maximum sentence of 40 years. Judge Jeanette Garrett imposed a lesser sentence of
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`30 years.
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`Competence
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`Petitioner argues that the trial judge erred in accepting her guilty plea because
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`Petitioner was not sufficiently competent. She makes a similar argument that her counsel
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`rendered ineffective assistance by allowing her to plead guilty despite a lack of competence.
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`The test for deciding competence to enter a guilty plea is whether the defendant “has
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`sufficient present ability to consult with his lawyer with a reasonable degree of rational
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`understanding, and whether he has a rational as well as factual understanding of the
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`proceedings against him.” Dusky v. U.S., 80 S.Ct. 788 (1960). See also Godinez v. Moran,
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`113 S.Ct. 2680 (1993).
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`Petitioner points to the judge’s comments at sentencing that Petitioner told the
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`probation officer that her father was killed over a drug deal when she was 14, and Petitioner
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`“spent some time in the state mental hospital.” She was later left to her own resources on the
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`Page 4 of 16
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`

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`Case 5:07-cv-01872-TS-MLH Document 16 Filed 04/13/10 Page 5 of 16 PageID #: 452
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`street, and she became a prostitute and started using cocaine. Tr. 137. There was also a
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`comment from the prosecutor that the pre-sentence investigation noted that Petitioner said
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`she pleaded guilty “because she was tired of coming to court.” Tr. 133. Petitioner argues
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`that these facts should have triggered concerns about her competency.
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`Petitioner attached to her post-conviction application and federal petition records from
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`her 1998 stay at the Southeast Louisiana Hospital when she was age 14. Records indicate
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`that Petitioner had threatened suicide and overdosed on Valium prior to her four-month
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`admission. She had a troubled childhood, including a police raid on her parents’ home,
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`where the parents were operating a meth lab. She had been in a number of foster homes and
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`had a history of substance abuse ranging from alcohol to LSD. At the time she was admitted,
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`she was superficially cooperative. She appeared depressed, but had no psychotic features.
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`She had been hospitalized at least twice before. On admission, her two major problems were
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`identified as depression with acting out and substance abuse. A treatment plan was outlined,
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`but Petitioner was hostile and non-compliant. She ended up in restraints a number of times
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`and needed several medications. She seemed to be getting worse, so she was transferred to
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`a long-term adolescent unit.
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`Petitioner continued to be combative, manipulative, and angry. It was during this stay
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`that she received notice that her father had been killed in a drug-related incident. Petitioner’s
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`attitude improved immensely after her father’s death. She became actively involved in the
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`equestrian program by earning merits for her participation in the treatment programs. She
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`Case 5:07-cv-01872-TS-MLH Document 16 Filed 04/13/10 Page 6 of 16 PageID #: 453
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`even assumed a leadership position in various treatment groups. She was weaned off of
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`medications. Petitioner was at the end discharged to a small group home with the
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`expectation of eventual reunification with her mother. No medications were prescribed at
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`discharge. Tr. 269-88.
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`The crime at issue was committed in 2002, four years after that hospitalization.
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`Petitioner pleaded guilty a year later, in 2003. The transcript of the plea provides no
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`statements by Petitioner that give reason to question her competency. She told the judge her
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`name and age (20), and told her that she had earned a GED. Petitioner said that she could
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`read and write, and she agreed that she had fully reviewed the case with her attorney,
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`Michelle Andrepont. Petitioner stated that she was satisfied with her attorney’s work and
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`advice, and she answered affirmatively as the judge described the elements of the crime and
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`completed the Boykin process. After a factual basis was read, the judge asked Petitioner if
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`it was her decision to plead guilty. Petitioner answered, “It’s my decision.” Tr. 111-20.
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`Petitioner first presented this competency claim in a post-conviction application.
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`Judge Scott Crichton denied the claim. He noted the legal presumption that a defendant is
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`competent and that a mental examination is required only when there are reasonable grounds
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`to doubt the defendant’s mental capacity. He reviewed the mental health records summarized
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`above but found they merely showed that Petitioner abused drugs and alcohol and suffered
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`from depression. The records had no diagnosis of a mental disease that would prevent her
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`from understanding the nature of the guilty plea or cooperating with her attorney. Tr. 426.
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`Page 6 of 16
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`Case 5:07-cv-01872-TS-MLH Document 16 Filed 04/13/10 Page 7 of 16 PageID #: 454
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`The state appellate court denied a supervisory writ with a two-sentence decision that stated
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`it found no error in the trial court’s ruling. Tr. 475. The Supreme Court of Louisiana
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`summarily denied a writ application. Tr. 525.
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`Habeas relief may not be granted on this claim unless the state court’s adjudication
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`of the claim “resulted in a decision that was contrary to, or involved an unreasonable
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`application of, clearly established Federal law, as determined by the Supreme Court of the
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`United States.” 28 U.S.C. § 2254(d). Even if the federal court, in its independent judgment,
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`has a firm conviction that the state court was incorrect in its application of a federal
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`constitutional principle, that alone does not permit the federal court to grant habeas relief.
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`Relief is not permitted unless the state court decision was so wrong as to be objectively
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`unreasonable. Lockyer v. Andrade, 123 S.Ct. 1166, 1175 (2003).
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`There is nothing in the record to suggest that the court or counsel should have been
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`aware that Petitioner lacked the ability at the time she entered her plea to consult with her
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`lawyer with a reasonable degree of rational understanding, or that Petitioner lacked a rational
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`and factual understanding of the proceedings against her. Petitioner had past mental health
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`problems, as many people do, and she suffers from substance abuse, which is not uncommon
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`among criminal defendants. None of the mental health records suggest, however, that
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`Petitioner suffered from a condition so severe that five years after that hospitalization (from
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`which she was discharged successfully) she lacked the competence to understand a criminal
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`case against her and consult with her lawyer about that case. Not every defendant who has
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`Case 5:07-cv-01872-TS-MLH Document 16 Filed 04/13/10 Page 8 of 16 PageID #: 455
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`experienced substance abuse or depression will require a competency hearing and the
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`testimony of mental health professionals before a guilty plea can be entered. Judge Garrett
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`and attorney Andrepont are competent and careful professionals, and the undersigned is
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`certain that they would have raised and addressed competency if they had any reasonable
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`basis for concern. The state court’s rejection of this issue was not an unreasonable
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`application of the Supreme Court’s competency precedents, so habeas relief is not permitted.
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`Ineffective Assistance of Counsel
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`Petitioner also claims that her counsel was ineffective because (1) she did not question
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`the contents of the autopsy report, (2) she allowed Petitioner to plead guilty despite a lack of
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`evidence of guilt, and (3) counsel did not investigate Petitioner’s appearance at the time of
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`her arrest.
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`When a habeas petitioner makes an ineffective assistance claim in the context of a
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`guilty plea, she must satisfy the first prong of Strickland v. Washington, 104 S.Ct. 2052
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`(1984) by showing that counsel’s performance was deficient by reason of errors so serious
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`that, when reviewed under an objective standard of reasonable professional assistance and
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`afforded a presumption of competency, the attorney was not functioning as the counsel
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`guaranteed by the Sixth Amendment. To show prejudice, the second prong, the petitioner
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`must show that “there is a reasonable probability that, but for counsel’s errors, he would not
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`have pleaded guilty and would have insisted on going to trial.” Hill v. Lockhart, 106 S.Ct.
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`366 (1985).
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`Page 8 of 16
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`Case 5:07-cv-01872-TS-MLH Document 16 Filed 04/13/10 Page 9 of 16 PageID #: 456
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`When a petitioner claims that counsel failed to uncover exculpatory evidence or advise
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`her regarding a potential defense, the determination of whether the error (if there is one)
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`prejudiced the petitioner by causing her to plead guilty rather than go to trial will depend on
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`the likelihood that the discovery of the evidence would have led counsel to change her
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`recommendation or whether the evidence likely would have changed the outcome of a trial.
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`Hill, 106 S.Ct. at 370-71.
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`Petitioner argues that counsel should have “questioned” the autopsy report. She notes
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`the recent investigation into the office of the late coroner, Dr. George McCormick. There
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`were allegations after his death that a deputy coroner signed McCormick’s name to autopsies
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`that she performed for him. The report in this case showed that the victim died from a
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`gunshot wound and had a blood alcohol level of .291 percent. Petitioner points out that the
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`narrative portion of the report states that the victim was legally intoxicated but also says that
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`the internal examination of the abdominal cavity revealed “no alcoholic smell to the gastric
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`contents.” Petitioner argues that this is conflicting information.
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`Petitioner argues that counsel failed to hire experts “to prove the cause of death.” But
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`she “does not dispute the facts in the record that a shooting occurred that killed McBride.”
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`Petitioner adds that counsel should have looked into who actually performed the autopsy.
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`The state court did not specifically address this aspect of the Strickland claim. Its
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`unexplained rejection, however, was not an unreasonable application of Strickland and Hill
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`to these facts. It is ridiculous to suggest that counsel should have conducted further
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`Page 9 of 16
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`Case 5:07-cv-01872-TS-MLH Document 16 Filed 04/13/10 Page 10 of 16 PageID #: 457
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`investigation regarding the cause of death when Petitioner concedes that it was by gunshot
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`wound. And even if counsel could have raised questions about who performed the autopsy
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`or whether it included conflicting statements, there is no objectively reasonable basis to
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`believe that it would have changed counsel’s advice to plead guilty or Petitioner’s decision
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`to enter that plea.
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`Petitioner argues that the State had “no evidence against her” to prove that she shot
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`and killed the victim. She points out that the employee at Rusty’s who saw the victim leave
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`the bar in an intoxicated state in the company of a prostitute could not identify the prostitute
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`in a photo lineup. That was easily overcome, however, when Petitioner immediately admitted
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`to police that she shot the victim.
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`Petitioner apparently recognizes this deficiency in her argument when she states that
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`the “only true evidence” against her was her own incriminating statement to police. She
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`argues that it should have been suppressed because of her mental state. Counsel was not
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`ineffective for not moving to suppress the statement; a motion to suppress based on
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`Petitioner’s mental state would have been denied. A defendant’s mental condition, by itself
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`and apart from its relation to official police coercion, is not determinative of whether a
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`statement is voluntary. Colorado v. Connelly, 107 S.Ct. 515 (1986). Mental impairment or
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`intoxication are considerations in determining the voluntariness of a statement, but only when
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`there is also official coercion. See Martinez v. Quarterman, 270 Fed. Appx. 277, 290 (5th
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`Cir. 2008) (denying habeas claim of being intoxicated when giving a written confession) and
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`Page 10 of 16
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`Case 5:07-cv-01872-TS-MLH Document 16 Filed 04/13/10 Page 11 of 16 PageID #: 458
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`Sosa v. Dretke, 133 Fed. Appx. 114, 119 (5th Cir. 2005) (denying habeas to petitioner who
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`made statements when he had a mental impairment but in the absence of police coercion).
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`Accordingly, the claim that counsel should have advised Petitioner to go to trial because of
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`lack of evidence lacks merit.
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`Petitioner next argues that counsel should have questioned Petitioner’s physical
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`appearance at the time of her arrest. Petitioner says the arresting officers should have taken
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`her to the hospital for an examination and to verify the abuse Petitioner alleged she had
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`incurred. Petitioner devotes less than two pages of her memorandum to this argument, and
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`she does not articulate how counsel should have been able to influence whether police took
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`Petitioner to the hospital at the time of her arrest. Counsel did not become involved in the
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`case until later. The absence of a post-arrest examination was, by then, history. Petitioner
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`also does not squarely claim that she suffered any injuries at the hands of the victim. Her
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`boyfriend did tell police, however, that he had warned her against getting in cars with men
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`and that she had been beaten up by a customer a few days earlier. Tr. 21. The state court did
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`not specifically address this claim either, but Petitioner has not presented facts or argument
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`that would suggest the rejection of the claim was an objectively unreasonable application of
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`Strickland and Hill.
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`Victim Impact Evidence
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`A Louisiana statute set forth the contents of a victim impact statement to be
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`considered at sentencing. Defense counsel objected that the information included in
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`Page 11 of 16
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`Case 5:07-cv-01872-TS-MLH Document 16 Filed 04/13/10 Page 12 of 16 PageID #: 459
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`Petitioner’s pre-sentence report went beyond the scope of what was permitted by the statute.
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`Counsel was not specific about how the information went beyond the scope, but she did say
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`there was opinion testimony from the victim’s family about the offense. The judge overruled
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`the objection and noted that she had received a letter from Petitioner as well as other persons,
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`and she would consider all of the information when fixing a sentence. The judge also heard
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`testimony from the victim’s sister about what a caring person the victim was and how much
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`he was missed by his friends and family. Tr. 123-32.
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`Petitioner argues that it violated her Eighth and Fourteenth Amendment rights when
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`the sentencing judge considered the victim impact evidence. The Supreme Court has held
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`that the Eighth Amendment does not per se bar the admission of victim impact evidence in
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`a capital sentencing hearing. “In the majority of cases ... victim impact evidence serves
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`entirely legitimate purposes,” but if such evidence “is so unduly prejudicial that it renders the
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`trial fundamentally unfair, the Due Process Clause of the Fourteenth Amendment provides
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`a mechanism for relief.” Payne v. Tennessee, 111 S.Ct. 2597, 2607 (1991). Victim impact
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`evidence is routinely received at sentencing hearings in non-capital cases in state and federal
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`courts. Petitioner has not pointed to any clearly established federal law decided by the
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`Supreme Court that would prohibit the consideration of such evidence at her non-capital
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`sentencing. See U.S. v. Horsfall, 552 F.3d 1275, 1284 (11th Cir. 2008) (noting lack of
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`authority for argument that the Payne line of cases applied to a non-capital sentence for child
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`pornography); Hatcher v. Duckworth, 917 F.2d 1306 (7th Cir. 1990) (unpublished) (use of
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`Case 5:07-cv-01872-TS-MLH Document 16 Filed 04/13/10 Page 13 of 16 PageID #: 460
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`victim impact evidence at non-capital sentencing did not violate pre-Payne Supreme Court
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`decisions that once barred such evidence at capital sentencing hearings); and Mahan v. Cate,
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`2009 WL 3244911, *2 (C.D. Cal. 2009) (denying habeas because “Petitioner has not shown
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`that the Supreme Court has spoken on the use of victim impact statements, of any kind, in
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`noncapital cases.”). Absent that prerequisite for habeas relief, this claim must be denied. See
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`28 U.S.C. § 2254(d)(1).
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`
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`Petitioner makes a related argument that Judge Garrett’s consideration of the victim
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`impact evidence prevented her from being impartial. The Due Process Clause requires a fair
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`trial in a fair tribunal before a judge with no actual bias against the defendant or interest in
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`the outcome of her particular case. Bracy v. Gramley, 117 S.Ct. 1793, 1797 (1997).
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`Petitioner points to the judge’s statements that she wanted the family to understand that she
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`did not control the severity of the charge that was brought by the grand jury, and her
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`statement that she did not believe for a minute Petitioner’s version of the shooting.
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` Judge Crichton rejected this claim when it was presented in the post-conviction
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`application, finding that it was repetitive of the excessive sentence issue. Tr. 427. It appears
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`that the claim is distinct from the excessive sentence claim, but it is without merit. A review
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`of the sentencing transcript (Tr. 123-40) shows that Judge Garrett took great care and
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`consideration in imposing the sentence, and none of her comments reflect any improper bias.
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`Sentencing judges often chastise a defendant for her behavior or comment on the factors that
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`influenced the sentence, but that does not disqualify the judge as impartial. Judge Garrett
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`Page 13 of 16
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`Case 5:07-cv-01872-TS-MLH Document 16 Filed 04/13/10 Page 14 of 16 PageID #: 461
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`stated that she had read all of the police reports, “spent many, many hours going over this
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`case,” and had lost sleep in trying to determine an appropriate sentence. She noted
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`Petitioner’s prior criminal history of prostitution, drug possession, and other minor crimes.
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`She noted Petitioner’s “tragic upbringing”and that she was only 18 when she committed the
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`crime. She gave Petitioner credit for accepting responsibility and pleading guilty “straight
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`up.” Petitioner faced a maximum 40-year sentence, but Judge Garrett elected to impose a
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`lesser sentence of only 30 years because of the various factors.
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` The record contains no support for the contention that the sentencing judge was
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`impartial, so that claim should be denied. The same is true with respect to Petitioner’s
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`related claim that the judge failed to give sufficient consideration to mitigating factors when
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`she fashioned a sentence. The above discussion and the transcript of the sentencing hearing
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`shows that the judge plainly considered Petitioner’s age, first-felony offender status, and
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`misdemeanor-only record of convictions. This claim is probably not cognizable in habeas
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`because it invokes the alleged misapplication of state sentencing laws rather than federal law.
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`Estelle v. McGuire, 112 S.Ct. 475 (1991) (“we reemphasize that it is not the province of a
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`federal habeas court to re-examine state-court determinations on state-law questions.”). In
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`any event, it lacks merit.
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`Excessive Sentence
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`Petitioner argued on direct appeal that her 30-year sentence was excessive under
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`Article I, § 20 of the Louisiana Constitution. Tr. 158-60. Petitioner’s appellate brief did not
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`Page 14 of 16
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`Case 5:07-cv-01872-TS-MLH Document 16 Filed 04/13/10 Page 15 of 16 PageID #: 462
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`invoke the Eighth Amendment to the U.S. Constitution or other federal law. The appellate
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`court affirmed the sentence. Tr. 175-79. Petitioner now asserts her excessive claim in this
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`court. She continues to base her argument on Article I, § 20 of the Louisiana Constitution.
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`Federal habeas relief is available only for violations of the Constitution or laws of the
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`United States. 28 U.S.C. § 2254(a). The federal habeas court does not determine whether
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`state courts properly applied state law. Estelle, 112 S.Ct. at 480. Even if Petitioner’s
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`arguments to this court could be construed as now invoking the Eighth Amendment or other
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`federal law, the claim would be subject to dismissal because Petitioner did not exhaust that
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`federal claim in the state courts. See Baldwin v. Reese, 124 S.Ct. 1347 (2004) and Vallier
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`v. Terrell, 2006 WL 3925066, n. 9 (W.D. La. 2006).
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`Finally, the claim lacks merit. A sentence within statutory limits is almost never
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`subject to being set aside on habeas review. Haynes v. Butler, 825 F.2d 921-924 (5th Cir.
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`1987). Recent decisions from the Supreme Court also make plain that any severity or
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`proportionality attacks on the sentence in this case do not come close to meriting relief. See
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`Lockyer v. Andrade, 123 S.Ct. 1166 (2003) and Ewing v. California, 123 S.Ct. 1179 (2003).
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`Cumulative Error
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`Petitioner claims that cumulative error merits habeas relief. Federal habeas relief is
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`only available for cumulative errors that are of a federal constitutional dimension. Coble v.
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`Quarterman, 496 F.3d 430, 440 (5th Cir. 2007). Petitioner has not made a case for any error,
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`so there is nothing to cumulate. See Yohey v. Collins, 985 F.2d 222, 229 (5th Cir. 1993).
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`Page 15 of 16
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`Case 5:07-cv-01872-TS-MLH Document 16 Filed 04/13/10 Page 16 of 16 PageID #: 463
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`Accordingly,
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`IT IS RECOMMENDED that the petition for writ of habeas corpus be denied, and
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`that Petitioner’s complaint be dismissed with prejudice.
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`Objections
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`Under the provisions of 28 U.S.C. § 636(b)(1)(C) and Fed. R. Civ. P. 72(b), parties
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`aggrieved by this recommendation have fourteen (14) days from service of this report and
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`recommendation to file specific, written objections with the Clerk of Court, unless an
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`extension of time is granted under Fed. R. Civ. P. 6(b). A party may respond to another
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`party's objections within seven (7) days after being served with a copy thereof. Counsel are
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`directed to furnish a courtesy copy of any objections or responses to the District Judge at the
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`time of filing.
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`A party's failure to file written objections to the proposed findings, conclusions and
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`recommendation set forth above, within 14 days after being served with a copy, shall bar that
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`party, except upon grounds of plain error, from attacking on appeal the unobjected-to
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`proposed factual findings and legal conclusions accepted by the district court. See Douglass
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`v. U.S.A.A., 79 F.3d 1415 (5th Cir. 1996) (en banc).
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`THUS DONE AND SIGNED in Shreveport, Louisiana, this 13th day of April, 2010.
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