Square v. Deville

501 F.Supp.3d 369

John Earl SQUARE

v.Keith DEVILLE

CIVIL ACTION NO. 17-00266-BAJ-EWD

United States District Court, M.D. Louisiana.

Signed November 18, 2020

John Earl Square, Highland, CA, pro se.

Christopher Neal Walters, Louisiana Department of Justice, Dylan C. Alge, District Attorney's Office, Baton Rouge, LA, for Keith Deville.

RULING AND ORDER

BRIAN A. JACKSON, JUDGE

Before the Court is Petitioner's Petition Under 28 U.S.C. § 2254 For Writ Of Habeas Corpus By A Person In State Custody (Doc. 1). The Magistrate Judge has issued a Report And Recommendation (Doc. 19), recommending that the Court deny Petitioner's application for habeas corpus relief, and further, deny Petitioner a certificate of appealability. (Id. at p. 14). There are no objections to the Report and Recommendation.

Having carefully considered the underlying Petition (Doc. 1) and related filings, the Court APPROVES the Magistrate Judge's Report and Recommendation, and ADOPTS it as the Court's opinion herein.

Accordingly, for the reasons explained in the Magistrate Judge's Report (Doc. 19),

IT IS ORDERED that Petitioner's § 2254 PETITION (Doc. 1) is DENIED.

IT IS FURTHER ORDERED that a certificate of appealability is DENIED.

MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION

ERIN WILDER-DOOMES UNITED STATES MAGISTRATE JUDGE

NOTICE

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.

Before this Court is the application of John Earl Square ("Petitioner") for a writ of habeas corpus. Petitioner's application should be denied. He has not established that the Louisiana Supreme Court's decision granting his writ application in part but finding no Ex Post Facto violation as to three of his fourteen armed robbery convictions was contrary to, or involved an unreasonable application of, clearly established Federal law, or an unreasonable determination of the facts in light of the evidence presented in the state court proceeding. Additionally, there was no violation of due process in the revocation of his release following diminution of sentence after he pled guilty to new criminal conduct. There is no need for oral argument or for an evidentiary hearing.

I. Background and Procedural History

On February 2, 1982 and April 12, 1984, John Earl Square ("Petitioner") was convicted of 14 counts of armed robbery in the Nineteenth Judicial District Court, Parish of East Baton Rouge, State of Louisiana.¹ All 14 counts were ordered to be served concurrently, for a total of 40 years imprisonment without the benefit of probation, parole, or suspension of sentence.² Petitioner was released from custody on November 3, 2003, as if on parole, pursuant to Louisiana's early release for diminution of sentence statute, La. R.S. 15:571.5. Petitioner's Certificate of Parole advised that he was to remain under supervision until July 12, 2022,³ which was his full-term date.⁴

On March 29, 2010, Petitioner was arrested and charged in the Thirty-First Judicial District Court, Parish Jefferson Davis, State of Louisiana, with felony possession of marijuana in violation of La. R.S. 40:966 C & F(1).⁵ Petitioner pled guilty on August 1, 2011 and was sentenced to five years imprisonment.⁶ Due to the new felony conviction, Petitioner was presented with a Notice of Preliminary Hearing for parole revocation, but he did not elect any of the available options, including an option for a preliminary hearing. The Notice of Preliminary Hearing states that Petitioner refused to sign.⁷ Thereafter, Petitioner received a letter from the Louisiana Parole Board, dated August 17, 2011, advising him that his parole was revoked by operation of law pursuant to La. R.S. 15:574.10 and that he was not entitled to a final hearing per State of Louisiana ex rel. Theda Bertrand v. Hunt , 325 So.2d 788 (La. 1976).⁸

Petitioner filed a state petition for habeas corpus with the Twentieth Judicial District Court, Parish of West Feliciana, challenging the revocation of his early release for diminution of sentence and contending the provisions of La. R.S. 15: 571.5 are unconstitutional for a host of reasons including: violation of separation of powers, violation of the right to counsel, violation of his Fourteenth Amendment right to due process, and a violation of the Ex Post Facto Clause.⁹ The Twentieth Judicial District Court denied Petitioner's state habeas petition on February 3, 2014.¹⁰ Petitioner appealed the denial of his state habeas petition to the Louisiana First Circuit Court of Appeal and to the Louisiana Supreme Court. On January 13, 2017 the Louisiana Supreme Court granted Petitioner's writ application in part, as follows:

In 1982, relator was found guilty of one count of armed robbery and sentenced to 25 years imprisonment at hard labor. In 1984, relator pleaded guilty to 13 additional counts of armed robbery and was sentenced to 13 concurrent terms of 40 years imprisonment at hard labor. He was released in 2003 for diminution of sentence after earning sufficient "good time credit." After he pleaded guilty in 2011 to possession of more than 200 pounds of marijuana, his release was revoked and the remainders of his armed robbery sentences were reinstated. For the reasons that follow, we grant relator's request for a writ of habeas corpus and order him released from state custody and supervision but only with regard to those 11 sentences for armed robberies he committed before July 1, 1982.

Before the enactment of La.R.S. 15:571.5 (effective July 1, 1982), early release for diminution of sentence resulted in complete satisfaction of the remainder of an inmate's sentence and full discharge from the custody and supervision of the state. SeeState v. Anderson , 349 So.2d 311, 313 (La. 1977) ; see also 1964 La. Acts 426. After the enactment, an inmate released for "good time" diminution of sentence remains under state supervision "as if released on parole" for the balance of his unexpired term of imprisonment. La.R.S. 15:571.5(B)(2). The amendment specifically provided that "[t]he provisions of this Act shall apply to offenses committed on or after the effective date of this Act." 1981 La. Acts 762.

Retroactive changes in the law which have the effect of canceling accrued good time credits violate the Ex Post Facto Clause. Lynce v. Mathis , 519 U.S. 433, 117 S.Ct. 891, 137 L.Ed.2d 63 (1997). In addition, the controlling date for application of changes in good time eligibility must be the date the offense was committed. State ex rel. Bickman v. Dees , 367 So.2d 283 (La. 1978). Of relator's 14 armed robberies, 11 were committed before July 1, 1982, which is the effective date of 1981 La. Acts. 762. Therefore, those 11 sentences were fully satisfied when he was released for diminution of sentence in 2003. The remaining three armed robberies were committed after the July 1, 1982 effective date of the amendment and are not impacted by this ruling.¹¹

On February 13, 2017 Petitioner filed the instant petition for habeas corpus relief under 28 U.S.C. § 2254.¹² Petitioner claims that the Louisiana Supreme Court "failed to give legal analysis to the conflict that LSA-R.S. 15:571.5 (Act 1981, effective July 1, 1982), is (1) in violation of constitutional and statutory provisions; (2) in excess of the agency's (Defendant) statutory authority; (3) made upon unlawful procedure; (4) affected by error of law; (5) arbitrary, capricious, and an abuse of discretion; and/or (6) manifestly erroneous."¹³ Petitioner also contends that the statute violates his Sixth Amendment right to counsel, violates the Separation of Powers Doctrine, is an illegal bill of attainder, violates his Fourteenth Amendment right to due process, and is a punitive statute that inflicts punishment without trial.¹⁴ Petitioner's habeas petition seeks relief in the form of a declaration that La. R.S. 15:571.5 is unconstitutional and seeks release from custody.¹⁵

On February 28, 2018 Petitioner filed an Emergency Motion for Preliminary Injunction ("Emergency Motion)."¹⁶ Documentation attached to the Emergency Motion shows that Petitioner was again released from physical custody in accordance with La. R.S. 15:571.5 "as if on parole" on December 12, 2017.¹⁷ As a condition of his release Petitioner is required to report to the Baton Rouge office of Probation and Parole for the Department of Public Safety and Corrections. Petitioner also signed paperwork acknowledging the conditions of his early release for diminution of sentence.¹⁸ Petitioner's Emergency Motion contested the constitutionality of La. R.S. 15:571.5 and the conditions of his release. The Court issued a ruling on September 26, 2018, which denied Petitioner's Emergency Motion, but did not dispose of the merits of Petitioner's habeas application.¹⁹

II. Law and Analysis

A. Jurisdiction

Petitioner is entitled to habeas corpus relief only upon establishing that he is in custody in violation of the Constitution or laws or treaties of the United States. "For a court to have habeas jurisdiction ... the prisoner must be ‘in custody’ at the time he files his petition for the conviction or sentence he wishes to challenge."²⁰ Petitioner was incarcerated at Winn Correctional Center when he filed the habeas petition. Although Petitioner has since been released from physical custody, as if on parole,²¹ "[f]ederal courts have consistently held...