Hunter v. Boutte

TARA HUNTER #575198 v. FREDERIC BOUTTE, ET AL.

Civil Action No. 19-327-BAJ-EWD

United States District Court, M.D. Louisiana

August 29, 2022

NOTICE

ERIN WILDER-DOOMES, UNITED STATES MAGISTRATE JUDGE

Please take notice that the attached Magistrate Judge's Report has been filed with the Clerk of the U.S. District Court.

In accordance with 28 U.S.C. § 636(b)(1), you have 14 days after being served with the attached report to file written objections to the proposed findings of fact, conclusions of law, and recommendations set forth therein. Failure to file written objections to the proposed findings, conclusions and recommendations within 14 days after being served will bar you, except upon grounds of plain error, from attacking on appeal the unobjected-to proposed factual findings and legal conclusions accepted by the District Court.

ABSOLUTELY NO EXTENSION OF TIME SHALL BE GRANTED TO FILE WRITTEN OBJECTIONS TO THE MAGISTRATE JUDGE'S REPORT.

MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION

Before the Court is a Petition Under 28 U.S.C. § 2254 for Writ of Habeas Corpus by a Person in State Custody (“Petition”), filed by Tara Hunter (“Hunter”), who is representing herself and who is confined at the Louisiana Correctional Institute for Women in St. Gabriel, Louisiana.^[1]Hunter presents four grounds for relief (1) ineffective assistance of counsel, (2) failure to grant a severance from co-defendant at trial, (3) tainted and prejudicial photographic lineup, and (4) jury selection violated Batson v. Kentucky.^[2] The District Attorney for the Twenty-First Judicial District Court, Parish of Livingston, State of Louisiana (“Respondent”) filed a Response.^[3] As Hunter has not shown that the state courts' adjudication of any of her claims either “(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.”^[4] It is recommended that Hunter's Petition be denied. There is no need for oral argument or an evidentiary hearing.

I. Procedural History and Factual Background

Hunter was indicted by a grand jury on June 1, 2006 for two counts of armed robbery in violation of La. R.S 14:64.^[5] She pled not guilty on June 21 2006.^[6] After a jury trial, on July 23, 2010, Hunter was found guilty of armed robbery of Patricia Baker.^[7] She was sentenced to 20 years at hard labor with credit for time served on August 26, 2010.^[8]

The factual background, as correctly stated by the Louisiana Court of Appeal for the First Circuit (“First Circuit”) is as follows:^[9]

On March 29, 2006, near 2:00 p.m., Patricia Baker (the victim) returned to her residence in Albany, Louisiana, following a shopping trip to Baton Rouge. The victim went into the backyard to check on her dog and was returning to her car in the driveway when she noticed a gray, four-door vehicle had parked there. She walked up to the vehicle, which had two people in it, and asked if she could help. The driver was a slim black male with gold teeth wearing a white shirt. The victim initially thought that the passenger was another man. During the trial the victim described the passenger as a woman wearing a white, long-sleeved men's shirt with a button-up collar, with her hair slicked back, The couple asked the victim for directions to New Orleans, and they engaged in conversation for about ten to fifteen minutes, during which time the victim was standing about three to four feet from the vehicle. The victim told them she had to go take care of her other dog but, as she turned around and bent down to get the dog's chain, the driver exited the vehicle, came up behind her, and ordered her to give him her keys. A struggle ensued for the keys and her purse, which was on her shoulder. The man became increasingly violent, and as he tried to put a gun into the victim's mouth, he cut her lip and chipped her tooth. When he cocked the gun, the other person in the car, who the victim noticed had moved to the driver's seat, screamed at him and said to just take the purse and “let's get out of here.” The man tugged on the purse, dragging the victim as she held on to the purse strap. Eventually, the strap on the purse broke, the man took it, and then he and the other individual drove off in the gray car.

The victim called 911 and the police arrived, at which time she gave a statement describing the perpetrators as two black males, one heavyset and the other tall and slim with gold teeth. The next day, on March 30, the victim identified the codefendant in a photographic lineup. The following day, March 31, she also identified the defendant from a photograph lineup. At the trial, she noted that the defendant's clothing and hair style caused her to initially think that the defendant was a male.

Shortly after Baker was robbed, Alton Elms, who was working at Range Car Wash in Denham Springs, noticed a purse lying on top of a full garbage can. There were police in the area, so he gave the purse to an officer and showed him where he had found it. At trial, the purse, which had only one strap, was identified as the one taken from Baker.

II. Law & Analysis

A. The Petition is Timely

Pursuant to 28 U.S.C. § 2244(d), there is a one-year statute of limitations applicable to federal habeas corpus claims brought by prisoners in state custody. This limitations period begins to run on the date the judgment becomes final through the conclusion of direct review or through the expiration of time for seeking such review.^[10] If a petitioner stops the direct appeal process before proceeding through all available state courts, “the conviction becomes final when the time for seeking further direct review in the state court expires.”^[11]

The time during which a “properly filed” application for state post-conviction or other collateral review is “pending” in the state courts is not counted toward the one-year limitations period.^[12] Conversely, any time during which there are no properly filed, post-conviction or collateral review proceedings pending before the state courts does count toward the one-year period. A state post-conviction relief (“PCR”) application is considered “pending” (1) while it is before a state court for review; and (2) during the time authorized to file a timely application for further review at the next level of state consideration (thirty days in the State of Louisiana, unless an allowable extension is granted).^[13] The State argues that the Petition is untimely. The State's reliance on Sibley,^[14] an Eleventh Circuit case, to reach this conclusion is misplaced.^[15] In Sibley, the question before the Eleventh Circuit was whether a filing by the petitioner constituted a properly filed application for State postconviction or other collateral review that tolled the statute of limitations for filing a federal habeas petition.^[16] That court held that documents filed by the petitioner after the deadline for filing a federal habeas petition had elapsed could not toll the deadline because “once a deadline has expired, there is nothing left to toll.”^[17] This case presents a wholly different situation in which the First Circuit originally held that Hunter's appeal was untimely, but then later recognized its mistake and concluded that the appeal was timely.^[18] The First Circuit remanded to the trial court to “enter an order of appeal, to set a return date, and if relator is indigent, to appoint the Louisiana Appellate Project to represent relator on appeal.”^[19] For purposes of § 2241(d)(1)(A), in this case, Hunter's conviction was not final until the direct appeal process concluded and the time period for seeking further relief with the Supreme Court of the United States expired.^[20] After the First Circuit concluded Hunter's original appeal was timely, a timely appellate brief was submitted on her behalf on March 26, 2014.^[21] The First Circuit denied the appeal on the merits. Hunter sought review with the Louisiana Supreme Court, which denied relief on September 25, 2015.^[22] Hunter's conviction became final ninety days later, on December 25, 2015.^[23] On December 27, 2015, the one-year clock started for Hunter's federal habeas petition.^[24] On July 26, 2016, Hunter filed a PCR application with the state trial court.^[25] The PCR application stopped the clock on the one-year time period. After denial of her PCR application by the trial court,^[26] Hunter sought review with the First Circuit,^[27] which summarily denied the writ on Hunter's PCR application on March 5, 2018.^[28] Hunter sought review with the Louisiana Supreme Court,^[29] which denied relief on April 22, 2019. This Petition followed and was filed on May 21, 2019.^[30]

212 days passed between the finality of Hunter's conviction on December 26, 2015, and the filing of her PCR application on July 26, 2016. The PCR application remained properly pending until it was ultimately denied by the Louisiana Supreme Court on April 22, 2019. Another 28 days passed until Hunter filed her Petition with this Court dated May 21, 2019.^[31] Accordingly, only 240 days passed that counted against Hunter's time to file a federal habeas petition, much less than the allowed 365 days. Thus, the Petition is timely.

B. The Claims Raised in the Petition Are Without Merit^[32]

1. AEDPA Standard of Review^[33]

Under 28 U.S.C. § 2254(d), an application for a writ of habeas corpus shall not be granted with respect to any claim that a state court has adjudicated on the merits unless the adjudication has “(1) resulted in a decision that was contrary to, or involved an unreasonable application...