Payton v. McCine

NATHANIEL PAYTON v. S.W. SANDY MCCINE

CIVIL ACTION NO. 17-1413 SECTION "A"(2)

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF LOUISIANA

August 10, 2018

REPORT AND RECOMMENDATION

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 Section 2254 Cases. Upon review of the entire record, I have determined that a federal evidentiary hearing is unnecessary. See 28 U.S.C. § 2254(e)(2).¹ For the following reasons, I recommend that the instant petition for habeas corpus relief be DENIED and DISMISSED WITH PREJUDICE.

I. FEDERAL PROCEDURAL BACKGROUND

On February 10, 2017, the clerk of this court filed Nathaniel Payton's petition for federal habeas corpus relief in which he asserted the following grounds for relief:² (1) Hisstate post-conviction application stated claims upon which relief could be granted entitling him to discovery and an evidentiary hearing pursuant to La. Code Crim. P. arts. 928 and 930, Louisiana Const. Art. I §2, State ex rel. Tassin v. Whitley, 602 So.2d 721 (La. 1992) and Lemmon v. Connick, 590 So.2d 574 (La. 1992).³ (2) The state trial court violated his due process rights under the state and federal constitutions when it failed to rule on the application for post-conviction relief filed by his attorney and only ruled on the pro se supplemental application contrary to state law holdings in State ex rel. Tassin and Lemmon. (3) His right to access to the courts under the state and federal constitutions was abrogated by the state trial court's failure to rule on the attorney-filed application for post-conviction relief. (4) His equal protection rights under the Fourteenth Amendment were abrogated by the state trial court's unjust delay and failure to rule on the application for post-conviction relief filed by his attorney in violation of State ex rel. Tassin.

Payton's claims, construed broadly, include that the state trial court erred by failing to allow him to conduct discovery and take depositions to present at a post-conviction evidentiary hearing to prove that he was denied due process and a fair trial by the State and received ineffective assistance of counsel when his trial counsel failed tochallenge the selection of two jurors, Calvin J. Aguillard and Calvin J. Gavion Sr., whom he claims were related to the victim and/or his family and failed to move for the recusal of the state trial judge, whom Payton claims had a close friendship with the victim's twin sister.⁴ Payton also argued that with discovery and a state post-conviction hearing, he could have established that the State presented and relied upon perjured testimony, suppressed evidence and wrongfully admitted hearsay testimony by Officer Haynes, which previously had been ruled inadmissible.⁵ He, therefore, prayed that this federal habeas court order the state trial court to allow him to conduct discovery and hold an evidentiary hearing.

In its response in opposition to Payton's petition, the State asserted that Payton's claims challenging the state court's procedural actions on post-conviction review are not cognizable under federal habeas law.⁶ In the alternative, the State contended that Payton failed to exhaust state court review of his claims of perjured and hearsay testimony and the related ineffective assistance of counsel claims which he sought to develop in the state court. The State further asserted that the ineffective assistance of counsel claims (i.e., failure to challenge the biased jurors and file a motion to recuse the trial judge) are without merit.

On December 12, 2017, I issued a report and recommendation in which I recommended that Payton's federal habeas corpus petition be dismissed without prejudice for failure to exhaust state court review of all but his claims challenging the state post-conviction proceedings and that he received ineffective assistance of counsel when counsel failed to challenge the biased jurors and seek recusal of the state trial judge.⁷ Payton moved for leave to amend his federal petition to exclude the unexhausted claims and proceed only with the exhausted claims identified in my prior report and recommendation.⁸ The district judge granted the motion on April 9, 2018, and referred the matter to me for consideration of the remaining exhausted issues.⁹

Based on my prior report, Payton's federal petition, the state court record and his pleadings presented to the Louisiana Supreme Court, the only claims exhausted in the state courts are Payton's claims that he was denied his due process and other constitutional rights during the post-conviction process in the state courts and that he wasdenied effective assistance of counsel when his trial counsel failed to challenge two biased jurors and move to recuse the state trial judge.¹⁰

II. STATE COURT FACTUAL AND PROCEDURAL BACKGROUND

Although my prior report contains a detailed recounting of the procedural history of the underlying state criminal proceedings, the relevant facts and history are repeated here for ease of reference.

Payton is incarcerated in the Raymond Laborde Correctional Center in Cottonport, Louisiana.¹¹ On May 28, 2009, Payton was indicted by an Orleans Parish grand jury and charged with second degree murder.¹² The Louisiana Fourth Circuit Court of Appeal summarized the facts determined at trial in relevant part as follows:

The defendant was convicted of manslaughter in the killing of Cyril Roussel, who allegedly was shot by the defendant on August 2, 2008, and as a result of the wounds inflicted, died approximately six months later, on February 9, 2009.

[. . .]

New Orleans Police Department Officer Jason M. Lewis testified that on August 2, 2008, he was assigned to the canine unit. He was driving in the French Quarter, on Iberville Street, near Club Decatur, when he heard what sounded like gunshots. At that time he also began to hear reports on the police radio of the shooting outside Club Decatur. He was proceeding up Iberville Street to N. Peters Street when he was flagged down by a security guard from the club, who pointed the defendant out to him. The defendant was walking very fast. Officer Lewis turned on his lights and siren to get through heavy vehicular traffic at N. Peters Street, at which point the defendant began to run.

Officer Lewis crossed N. Peters on Iberville Street, paralleling the defendant as he ran across two connected parking lots. When the officer observed the defendant reach into his waistband and pull out a firearm, he stopped his vehicle, got his canine out, and ran into the parking lot after defendant. The officer ran through the gate across from the hotel entrance, and his canine apprehended Nicholas (sic) Payton. Officer Lewis testified that Payton dropped or threw the gun he was carrying, a Ruger semi-automatic handgun, and it landed in the middle of N. Front Street. Officer Lewis testified that from the time he saw the defendant walking fast until the time his canine apprehended defendant, he lost sight of him for only a brief second when he ran behind a building in the middle of the parking lots and emerged on the other side, still running parallel to the officer.

[. . .]

Leo Crump testified that he knew the victim, Cyril Roussel, from meeting him and his wife at parties in connection with the local music industry. On the night of August 2, 2008, Crump attended two concerts with friends at the House of Blues on Decatur Street. After the first concert, he went to Club Decatur to get a slice of pizza and ran into Cyril Roussel. Roussel had attended the second show at the House of Blues, though not with Crump. After the second show Crump saw Roussel standing with other people across Decatur Street talking. Crump went into Club Decatur.

Cyril Roussel subsequently entered, saying to someone Crump did not see: "I'm going to be right f.....g here, you know. I ain't going nowhere." Crump described the words from the victim as words of arguing. Crump said he asked Roussel at that point, "Hey man, what's wrong?" Roussel responded that nothing was wrong, and Crump said "[C]ool out. We having a good time tonight."

Crump and Roussel continued talking, with Crump's back to the outer wall of Club Decatur, and Roussel facing Decatur Street. Someone appeared crouched down behind Roussel as they talked, and Crump heard a click. As soon as he heard a second click gunshots rang out. When Roussel was shot he ran about ten yards and fell over into the street. Crump called 911 and went right over to Roussel. Crump said he never saw a gun, nor did he see Cyril Roussel with aweapon. On cross-examination he was asked if he knew who the individual was "that was involved in the argument," [with the victim]. He did not know. He also said he did not know who shot his friend. Crump replied in the negative when asked on redirect examination whether he had seen the shooter's face. Crump said the shooting and scattering/running of people took a matter of seconds.

Kiefer Brown testified that he was working as an armed security person at Club Decatur at the time of the shooting. He was inside when the shooting began. He looked outside and saw the victim, by that time on the ground, by some bushes, being shot more times by Nicholas (sic) Payton, whom he identified in court. The defendant's gun jammed or ran out of ammunition, and he hurried away, putting the gun in his waistband. Brown followed him up Clinton Street to Iberville Street, where he encountered two security personnel from The House of Blues. He asked one of them to call the police. He continued to follow the defendant as he walked toward N. Peters Street. He said Payton turned and saw him, and took off running across N. Peters Street. Brown saw a police SUV and directed him to where he thought the defendant was running. Brown continued to

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