McIntosh v. Day

1

JAMES DEWITT MCINTOSH, II v. TRAVIS DAY, WARDEN

Civil Action No. 23-1375

United States District Court, E.D. Louisiana

January 16, 2024

SECTION “M” (2)

REPORT AND RECOMMENDATION

DONNA PHILLIPS CURRAULT UNITED STATES MAGISTRATE JUDGE

This matter was referred to a United States Magistrate Judge to conduct hearings, including an evidentiary hearing, if necessary, and to submit proposed findings 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 § 2254 Cases. Upon review of the entire record,^[1] I have determined that a federal evidentiary hearing is unnecessary.^[2] For the following reasons, I recommend that the petition for habeas corpus relief be DISMISSED WITH PREJUDICE.

I. FACTUAL BACKGROUND

Petitioner James Dewitt McIntosh, II, is a convicted inmate incarcerated in the B.B. (Sixty) Rayburn Correctional Center in Angie Louisiana.^[3] On July 22, 2016, McIntosh was charged by a bill of information in St. Tammany Parish with two counts of distributing heroin and two counts of distributing marijuana.^[4] McIntosh pled not guilty on August 4, 2016.^[5] The Louisiana First Circuit Court of Appeal summarized the established facts as follows:

In late 2015, Louisiana State Police (“LSP”) Trooper John Heath Miller (“Trp. Miller”) received a tip through Crime Stoppers regarding narcotics sales occurring in St. Tammany Parish. After confirming the tip with some of his confidential sources, he began an investigation into defendant. Trp. Miller brought in an undercover officer, LSP Trooper Sarah Gilberti-Abbott (“Trp. Gilberti”), to coordinate with a confidential source to provide an introduction to defendant and negotiate a $140.00 narcotics purchase. The first meeting was arranged to take place at a Rouses's parking lot in Covington on November 19, 2015, and was to be for the purchase of heroin and marijuana. With other law enforcement officers surveilling the location, defendant and Trp. Gilberti parked side by side. The confidential source, who was with Trp. Gilberti, got out of the vehicle and conducted a hand-to-hand transaction for marijuana and heroin within the view of Trp. Gilberti. The narcotics were recovered by other troopers immediately thereafter and tested at the State Police laboratory to confirm their authenticity. Later fingerprint analysis determined defendant was the source of a fingerprint on a bag of marijuana obtained during the November 19, 2015 drug buy.

On December 1, 2015, Trp. Gilberti and the confidential source again arranged to meet defendant in order to purchase heroin and marijuana at the Sonic Drive-in in Mandeville where defendant was employed. This portion of the investigation was partially recorded, and the video recording was played for the jury. While waiting for a third party to obtain the drugs from another location for defendant to sell to Trp. Gilberti, defendant and the confidential source spoke about text messages that they had sent to each other earlier in the day. The transaction was taking far longer than anticipated, and the confidential source was complaining about how she thought it had been set up well in advance through texts between them earlier in the day. Shortly thereafter the playback stopped due to a dead battery on the recording device. The third party returned in defendant's car, and defendant returned to Trp. Gilberti's vehicle. Defendant then conducted a hand-to-hand transaction, taking money from Trp. Gilberti and handing her heroin and marijuana in exchange. The narcotics were recovered by the investigating troopers soon after and were tested to confirm their authenticity.^[6]

McIntosh proceeded to a jury trial on October 24 through 26, 2016, and was found guilty as charged by a unanimous verdict as to counts two, three and four and a verdict of eleven to one as to count one.^[7] The trial court denied McIntosh's post-trial motions on December 8, 2016.^[8] On that same day, the trial court sentenced McIntosh to twenty-five years at hard labor for the distribution of heroin convictions to be served without benefit of parole, probation, or suspension of sentence, and imprisonment at hard labor for five years for the marijuana convictions.^[9]

The State filed a multiple bill.^[10] On November 30, 2017, the state trial court found McIntosh to be a second felony offender.^[11] The court vacated the prior sentence as to counts one and two and re-sentenced McIntosh to a term of imprisonment of thirty years without the benefit of probation or suspension of sentence and to be served concurrently with his sentences for counts three and four.^[12]

On direct appeal, McIntosh's appointed counsel asserted three assignments of error: (1) the State improperly introduced evidence of other crimes and the trial court erred in denying his motion for mistrial; (2) the trial court erred in denying his pretrial motions attempting to exclude evidence consisting of the confidential source reading on the surveillance recording text messages alleged to have come from McIntosh; and (3) the trial court erred in failing to grant his motion for new trial when the State made an improper closing argument.^[13] On February 28, 2019, the Louisiana First Circuit Court of Appeal affirmed McIntosh's convictions and sentences.^[14] The court determined that the trial court did not abuse its discretion in finding that the defense opened the door to testimony regarding the reason the investigation ended thereby allowing the State an opportunity to elicit testimony regarding the procedural details of why the investigation ended.^[15] The court found that, although the admission of the text messages through the statements by the confidential source were erroneous, the error was harmless.^[16] Finally, the court found that the prosecution's closing argument that it was defense counsel's job to try to “walk his client out of the door” did little to prejudice McIntosh given the evidence properly admitted at trial, and, thus, trial court did not abuse its discretion in denying the motion for new trial.^[17] On October 21, 2019, the Louisiana Supreme Court denied McIntosh's related writ application without assigning reasons.^[18]

On September 30, 2020, McIntosh filed a pro se application for post-conviction relief asserting the following claims:^[19]

(1) the non-unanimous jury verdict violated the Sixth and Fourteenth Amendments; and

(2) ineffective assistance of counsel in failing to (a) object to the non-unanimous jury verdict; (b) investigate the case which resulted in counsel opening the door to permit the prosecution to elicit other crimes evidence.

On July 14, 2021, the trial court denied McIntosh's application for post-conviction relief.^[20]The trial court found that, under Edwards v. Vannoy, 593 U.S. ----, 141 S.Ct. 1547 (2021), McIntosh did not have the right to retroactive application of the jury unanimity rule set forth in Ramos v. Louisiana, 590 U.S. ----, 140 S.Ct. 1390 (2020).^[21] The trial court further found that, because the appellate court found that McIntosh did not suffer any prejudice from the introduction of other crimes evidence, he had not met his burden of showing ineffective assistance of counsel.^[22]

On September 24, 2021, McIntosh filed a writ application to the Louisiana First Circuit Court of Appeal.^[23] On November 29, 2021, the court stayed the writ application as it related to the Ramos claim, and denied it in all other respects.^[24] On October 26, 2022, the court found that the jury unanimity rule in Ramos did not apply retroactively in Louisiana, citing State v. Reddick, 2021-01893 (La. 10/21/22), --- So.3d .^[25]

On January 18, 2023, the Louisiana Supreme Court denied McIntosh's writ application.^[26]

II. FEDERAL HABEAS PETITION

On April 20, 2023, McIntosh filed a petition for federal habeas corpus relief styled under 28 U.S.C. § 2254 and challenged his current custody.^[27] McIntosh asserts the following claims:

(1) the trial court erred in admitting hearsay evidence in violation of his right to confrontation; and

(2) ineffective assistance of counsel.^[28]

The State filed a response in opposition to McIntosh's petition and conceded that it was timely filed and that his claims are exhausted.^[29] The State asserts that McIntosh's claims are meritless.^[30]

On October 12, 2023, the Court instructed the State to supplement the record with a certified copy of the December 1, 2015 recording of the undercover narcotics transaction.^[31] On November 14, 2023, the State complied with that order.^[32]

III. LAW AND ANALYSIS

The Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), Pub. L. No. 104132, 110 Stat. 1214, comprehensively revised federal habeas corpus legislation, including 28 U.S.C. § 2254. The AEDPA went into effect on April 24, 1996,^[33] and applies to habeas petitions filed after that date.^[34] The AEDPA therefore applies to McIntosh's petition filed on April 20. 2023.^[35]

The threshold questions in habeas review under the amended statute are whether the petition is timely and whether petitioner's claims were adjudicated on the merits in state court. In other words, has the petitioner exhausted state court remedies and is the petitioner in “procedural default” on a claim.^[36] Here, the State does not seek to time bar McIntosh's federal habeas petition, nor does it claim that state court review has not been exhausted or that any enumerated claim is in procedural default.^[37] This federal habeas court may review McIntosh's claims.

Nevertheless, for the reasons that follow, McIntosh is not entitled to federal habeas relief.

A. Standards of a Merits Review

Sections 2254(d)(1) and (2) contain revised standards of review for questions of fact, questions of law,...