DOCKET NUMBER ________ DIVJ[SION Co I ORLEANS CRIMINAL DISTRICT COURT, PARISH OF ORLEANS STATE OF LOUISIANA QUINCY BROWN, #447101, Petitioner VERSUS , "" ;r: '<§ ~ "'" BURL CAIN, Warden of Louisiana State Penitentiary, Custodian FILED: _ _ _ _ _ _ _ _ _ _ ,_ _ _ _ _ _ _ _' AMENDED ORlGINAL APPLICATION FOR POST-CONVICTION RELIEF NOW ]}lTO COURT, through undersigned counsel, comes defendant/petitioner, Quincy Brown, irunate number 447101, Louisiana State Penitentiary, Angola, LA 70712, who respectfully represents the following pursuant to La. Code of Criminal Procedure article 926 (D): I. Petitioner seeks post-conviction reliefbased on the following facts and infonnation: *** 1. Name and location of court which entered the judgment of conviction challenged: Orleans Criminal District Court, Section H, Parish of Orleans, 2700 Tulane Avenue, New Orleans, Louisiana 70119 2. Date of judgment of conviction: On October 3, 2001, the jury found petitioner guilty of one count of am1ed robbery in violation of La. R. S. 14:64, See Exhibit Al 3. Length of sentence: On October 12, 2004, Judge Camille Buras sentenced petitioner to a term 99 years in prison at hard labor, without benefit of parole, probation, or suspension of sentence. See Exhibit A. 4. ~ Nature of offense involved: The jury determined that on or about March 11, 1999, petitioner committed the armed robbery of Wayne Matthews, in violation of La. R. S. 14:64. 1 Exhibit A is actually a print-out of the Orleans Docket-Master minutes in this case. Petitioner is aware of the rules of the Uniform Application for Post-Conviction Relief, specifically the requirement that the petition include official documentation of the sentence. Petitioner has requested the official court minutes from the Clerk ofComi no less than tlu'ee times in the previous month. Because of the damage caused by Hunicane Katrina, however, the Clerk afCollrt has been unable to-date to locate the official counminutes and provide counsel with same. Petitioner reserves the right to supplement this Petition with the official court minutes when same are located and provided to counseL 013094 --T' Additionally, petitioner pled guilty to the simple robbery of Yul Knighten in violation of La. R.S. 14:65 and was sentenced to at term of7 years in prison. The simple robbery conviction is not the subject oftrus petition. 5. Plea: (a) Petitioner pled Not Guilty to the charge of anned robbelY of Wayne Matthews. (b) Petitioner pled Guilty to the charge of simple robbery ofYul Knighten. (d) At the time ofhis plea of Not Guilty to the charge, the conviction which is the subject ofthis Petition, Petitioner was represented by court-appointed counsel, Mr. Kendall Green, Office of the Public Defender, 2700 Tulane Avenue, New Orleans, LA 70119. See Exhibit A. 6. Petitioner was tried by jury. 7. (a) Name and address oftrial counsel: Clive Stafford Smith, 636 Baronne Street, New Orleans, LA 70113 Harold DuCloux, 636 Baronne Street, New Orleans, LA 701 13 (b) Mr. Smith was appointed. Mr. DuCloux was retained on a pro bono basis. 8. Petitioner did not testify at trial. 9. (a) Name and address oflawyer at sentencing: Clive Stafford Smith, 636 Baronne Street, New Orleans, LA 70113, represented Petitioner at his initial sentencing. Stephen I. Singer, 636 Barorme Street, New Orleans, LA 70113, represented Petitioner at his re-sentencing. (b) Mr. Smith was appointed. Mr. Singer was retained on a pro bono basis. , 10. Petitioner appealed his conviction. 11. Appeal: (a) Citation, docket number, and date of opinion: (a) State v. Brown, 2002-KA-1217 (La. App. 4 Cir. OS/28/03), 853 So.2d 8. On writs, Statev. Brown, 03-K-1836 (La. 1130/04), 865 So.2d 72; State v. Brown, 03-K-2788, (La. 07/06/04),879 So.2d 1276. Cert. denied, 543 U.S. 826 (2004); 543 U.S. 1177 (2005). (b) Clive Stafford Smith and Stephen L Singer, 636 BarOlme Street, New Orleans, LA 70113 represented Petitioner throughout his din:;Ct appeal, on writ to the Louisiana Supreme Court, and to the United States Supreme Court. (c;:) Mr. Smith was appointed. Mr. Singer was retained on a pro bono basis. 12. Petitioner has previously filed a Petition for POllt-Collviction Relief and Notice of Intention to Amend. Both were mailed by counsel on October 25, 2005 from a temporary location in Houston, Texas followillig Hurricane Katrina.! Counsel specifically reserved the right to and notified the state of the intention to amend and supplement the Petition. This Petition and Notice of Intention to Amend were filed on :2 Hurricane Katrina ravaged the City of New Orleans on August 29, 2005, causing the entire city to evacuate for months. Petitioner's then-counsel, Ms. Cluistine Lelll11ann, was forced to evacuate to Houston, Texas. In late September 2005, the Clerk of Court for the Orleans Criminal District Court opened a temporal)' office at Southern University in Baton Rouge, Louisiana. 013095 • • ~r;l. T" or about the 25 th day of October, 2005 by mailing same to the Clerk of Court's temporary office location following Hurricane Katrina. See Exhibit B. No evidentiary hearing has been held and no relief has been granted or denied. In filing the Petition and Notice of Intention to Amend, Petitioner was represented by: Christine Lehmann, 636 Baronne Street, New Orleans, LA 70113. 1\ls. Lehmann was retained on a pro bono basis. Other than this Petition (Ex. B), no applications for post-conviction relief have ever been filed with respect to this judgment in any sta,te or federal court. CLAIMS FOR RELIEF All claims asserted are set out below, with the factual basis for such claims included in the attached lYlemorandum in Support of Application for Post-Conviction Relief and are incorporated here by reference. 1. Petitioner received ineffective assistance of counsel, in violation of his right to counsel, to due process oflaw, and to equal protection lUlder the law, pursuant to U.S. Const. Amends. V, VI,XlV, and La. Const. Art. I, §§ 2, 13, 16. 2. Petitioner received ineffective assistance of counsel, in violation of his right to counsel, to due process oflaw, to equal protectionlUlder the law, and to be free from cruel, excessive, orlmusual punishment pursuant to U.S. Const. Amends. V, VI, Vill, XlV, and La. Const. Art. I, §§ 2, 13, 16, 20, because his trial counsel failed to investigate and present evidence at his sentencing which would have appealed to the court's discretion in sentencing Petitioner to less than the maximum of 99 years in pnson. 3. Petitioner was prejudiced, in violation of his rights to be presumed innocent until proven guilty, to a fair trial, to assistance of counsel, to be free of cruel, excessive, or unusual punishment, to due process, and to equal protection under the law, U.S. Canst. Amends. V, VI, XN; La. Canst. Ali 1, §§ 2,13,16,20 when the trial judge sentenced him to the maximum possible punishment of 99 years in prison at hard labor. 4. Petitioner received ineffective assistance of cOlIDseI, in violation of his right to counsel, to due process oflaw, to equal protection under the law, and to be free from cruel, excessive, or unusual punishment pursuant to U.S. Const. Amends. V, VI, Vill, XlV, and La. Canst. Art. 1, §§ 2,13,16,20, when trial counsel failed to move for reconsideration of sentence after Petitioner was sentenced to the maximum statutory tenn of 99 years, and again when appellate counsel failed to raise the issue of excessive sentence on appeal. 5. Petitioner's rights to be presumed innocent until proven guilty, to a fair trial, to confront and cross-examine the witnesses against him, to present a defense, to due process, and to equal protection under the law, u.s. Const. Amends. V, VI, XIV; La. Const. Art 1, §§ 2, 13, 16, were violated when the prosecutor elicited the only evidence against Petitioner through leading questions. Petitioner received ineffective assistance of counsel, in violation oflris right to counsel, to due process oflaw, and to equal protection under the law pursuant to U.S. Canst. Amends VI, VI, XIV; La. Const. Art. I, §§ 2, 13, 16 when appellate counsel failed to raise the issue on appeal. 6. Petitioner's rights to be presumed imlocent until proven guilty, to a fair trial, to confront and cross-examine the witnesses against him, to present a defense, to due process, and to equal protection under the law, U.S. Const. Amends. V, VI, XN; La. Canst. Art 1, §§ 2, 13, 16, were violated when the State made improper arguments and implied other crimes evidence in its closing argument to the jUlY- Petitioner'S right to counsel, U.S. Canst. Alnend. VI, La. Const. Art. 1, § 13, was violated when his trial counsel failed to object and again when his appellate counsel failed to raise 013096 • T"" T' the issue on appeal. 7. Petitioner received ineffective assistance of counsel, in violation of his right to counsel, to due process oflaw, to equal protection under the law, and to be free from cruel, excessive, or unusual punisbment purs1.1ant to U.S. Canst. Amends. V, VI, VIII, XN, and La. Const. Art. 1, §§ 2, 13, 16,20, because his trial counsel failed to move for mistrial after the prosecutor made prejudicial statements during voir dire and closing argument implying other crimes, and again when his appellate counsel failed to raise the issue on appeaL 8. Petitioner was prejudiced, in violation of his rights to be presumed innocent until proven guilty, to a fair trial, to assistance of counsel, to confront and cross-examine the witnesses against him, to due process, and to equal protection under the law, U.S. Const. Amends. V, VI, XN; La. Canst. Art 1, §§ 2, 13, 16, when the trial COUlt erroneously relied on a defective juvenile adjudication and RAP sheet showing arrests with no dispositions in assessing the sentencing factors of La.GeT.P. art. 894.1. Petitioner received ineffective assistance ofcounsel, in violation ofhls right to counsel, to due process oflaw, and to equal protection under the law pursuant to U.S. Const. Amends VI, VI, XN; La. Canst. Art. 1, §§ 2, 13, 16 when appellate counsel failed to raise the issue on appeaL 9. Petitioner was prejudiced, in violation of his rights to be presumed innocent until proven guilty, to a fair trial~ to assistance of counsel, to confront and cross-examine the iVitnesses against him, to due process, and to equal protection under the law, U.S. Const. Amends. V, VI, XN; La. Const. Art I, §§ 2, 13, 16, when the State used improper force in compelling its star witness to testify at Petitioner's trial and when the State failed to infonn defense counsel of its improper force and compulsion upon its star witness. 10. Petitioner was prejudiced, in violation of his rights to be presumed imlocent tmtil proven guilty, to a fair trial, to assistance of counsel, to confront and cross-examine the witnesses against him, to due process, and to equal protection under the law, U.S. Const. Amends. V, VI, XN; La. Const. Art 1, §§ 2, 13, 16, when he was convicted on evidence wholly insufficient to justify a finding of guilt, and Petitioner's right to counsel, U.S. Const. Amend. VI, La. Const. iill. 1, § 13, was violated when his appellate counsel failed to raise the issue on appeaL 11. Petitioner was prejudiced, in violation of his rights to be presumed innocent until proven guilty, to a fair trial, to assistance of counsel, to con:fi:ont and cross-examine the witnesses against him, to due process, and to equal protection under the law, U.S. Const. Amends. V, VI, XN; La. Const. Art 1, §§ 2, 13, 16, when the trial court elToneously removed Petitioner's counsel from this case. 12. Petitioner was prejudiced, in violation of his rights to be presumed innocent until proven guilty, to a fair trial, to assistance of counsel, to confront and cross-examine the witnesses against him, to due process, and to equaIprotection under the law, V.S. Canst. Amends. V, VI, XN; La. Canst. Art 1, §§ 2, 13, 16, when the prosecutor challenged potential jurors solely on account ofthe!r race. 13. Petitioner was prejudiced, in violation of his rights to full voir dire of prospective jurors and to challenge jurors peremptorily, to a fair trial by an impartial jury, to assistance of counsel, to due process, and to equal protection under the law, U.S. Const. Amends. V, VI, XN; La. Const. Art 1, §§ 2, 13, 16, 17, when a biased juror sat on his jury. 14. Petitioner received ineffective assistance of counsel, in violation of his right to cOLUlsel, to due process oflaw, to equal protection under the law, to a fair trial by an impartial jury, and to be free from cruel, excessive, or unusual punishment pursuant to U.S. Const. Amends. V, VI, VIII, XN, and La. Const. Art. I, §§ 2, 13, 16,20, because his trial counsel allowed a biased juror:to remain all Petitioner's jury. 15. Petitioner was prejudiced, in violation of his rights to be presunled imlocent l.U1til 013097 c· proven guilty, to a fair trial, to assistance of counsel, to be free of cnlel, excessive, or unusual punishment, to due process, and to equal protection under the law, U.S. Canst. Amends. V, VI, XN; La. Canst. Ali 1, §§ 2, 13, 16, 20 when the State withheld favorable evidence in violation of Brady v. Maryland and its progeny. 16. The cumulative effect of the violations of Petitioner's rights is per se a violation of Petitioner'S constitutional rights. Petitioner has previously filed a Petition for Post-Conviction Relief and Notice ofIntention to Amend. Both were mailed by counsel all October25, 2005 from a temporary location in Houston, Texas following Hurricane Katrina. Connsel specifically reserved the right to and notified the state of the intention to anlend and supplement the Petition. This Petition and Notice of Intention to Amend were filed on or about the 25 th day of October, 2005 by mailing same to the Clerk ofCouli's temporary office location following Hurricane Katrina. See Exhibit B. Petitioner has no other application or appeal pending. Additionally, Petitioner has no future sentence to serve after completion of the sentence imposed by the judgment challenged. WHEREFORE, applicant-petitioner prays that the Court grant the reliefto which he may be entitled. Respectfully submitted, JULIE BAYES KILBORN Bar Roll No. 29293 LAURA J. KREVSKY Bar Roll No. 30580 Louisiana Capital Assistance Center 636 B 8IOlme Street New Orleans, LA 70113 (504) 558-9867 (504) 5J,8~378 (fax) r i BY; '\'IUNV'F!=. /0..itiYj'A.. Att~n)eYrfor Applicant-Petitioner, QUIn'(l.llrown 013098 .. , STATE OF LOUISIANA PARISH OF ORLEANS AFFIDAVIT Julie Hayes Kilbom~ attorney for Applicant-Petitioner Quincy Brown, being first duly sworn says that she has read the foregoing amended original application for post-conviction relief and swears or affirms that all of the infonnation therein is true and correct. New Orleans, LOtlisiana, this err-- day of November, 2006. , j,~ . . - kf-l~t:?;t-iAJ c:r1l' SWORN TO AND SUBSCRIBED before me, Notary, this ...-::::-day of November, 2006. p-- j\, V}rNOTARYPUBLlC Printed Name: (L N e ~ ( C'V" Notary ID / Bar Roll No.: )=d- c). II CA-v r ''7-- 013099 c· CERTIFICATE OF SERVICE J, Julie H. Kilborn, do hereby certifirthat a copy of the foregoing has been served via first class mail or hand delivery to the Orleans Palish District Attorney's Office, this !itday of November, 2006. (j/1 /J)/Y'---/ 013100 - -1-' '3 ~ ::c DOCKET NUMBER _ _ _ __ DIVISION ORLEANS CRIMINAL DISTRICT COURT, PARISH OF ORLEANS th t4! STATE OF LOUISIANA ,'''' 'i, r~ ~ O'~I~ wI':! :::d ~I QUINCY BROWN, #447101, Petitioner I.L. VERSUS ~ :i'E BURL CAIN, Warden of Louisiana State Penitentiary, Custodian FILED: DY.CLK MOTION TO COMPEL ANSWER OR PROCEDURAL OBJECTIONS IF ANY Petitioner, Quincy Brown, respectfully avers that the allegations presented in his Amended Original Application for Post-Conviction Relief, if established, would entitle him to post-conviction relief, and respectfhlly moves this Honorable COUli to require the District Attorney for the Parish of Orleans, State of Louisiana, to file any procedural objections he may have, or an answer on the merits if there are no procedural objections, within not more than thirty days, as required by La. C.Cr. P. Article 927(A). Respectfully submitted, JULIE HAYES Kll..,BORN Bar Roll No. 29293 LAURA J. KREVSKY Bar Roll No. 30580 Louisiana Capital Assistance Center 636 BarOlme Street New Orleans, LA 70113 (504) 558-9867 (504) 558-0378 (fax) / ! BY: / / J ,0 ) / \ ~''7l{i~ <:J¥- I!v~ Attorneys for Applicant-Petitioner ~W~3X~0~1 . ·c· DOCKET NUMBER ________ DIVISION ORLEANS CRIMINAL DISTRICT COURT, PARISH OF ORLEANS STATE OF LOUISIANA QUINCY BROWN, #447101, Petitioner VERSUS BURL CAIN, Warden of LOlUisiana State Penitentiary, Custodian FILED: DY.CLK. ORDER PREMISES CONSIDERED, IT IS ORDERED that Petitioner's application, if established, would entitle Petitioner to relief; IT IS FURTHER ORDERED that the District Attorney for Orle811S, Parish, State of Louisiana, file any procedural objections he may have, or 811 8l1SWer on the merits if there are no procedural objections, to Petitioner's amended original application for post-conviction relief, on or before the day of ,200 THUS DONE AND SIGNED this . day of ,2006. JUDGE, ORLEANS CRn\1lliAL DISTRICT COURT PLEASE SERVE: Office of the District Attorney 1340 Poydras Street, Ste. 700 New Orleans, LA 70119 Julie H. Kilbol11 636 Baronne Street New Orleans, LA 70113 013102 C' ~ DOCKET NUMBER _ _ _ __ ;g; z c DIVISION rr! 0 r- ORLEANS CRIMINAL DISTRICT COURT, PARISH OF ORLEANS m ;0 STATE OF LOUISIANA ,; ;=; QUINCY BROWN, #447101, Petillioner VERSUS BURL CAIN, Warden of Louisiana State Penitentiary, Custodian FIlLED: DY.CLK. ::rJ m r- 0 I I I I (\.I....L...I '" MEMORANDUM IN SUPPORT OF All'IENDED ORIGINAL APPLICATION FOR POST-CONVICTION RELIEF JULJEHAYES KILBORN Bar Roll No. 29293 LAURA J. KREVSKY Bar Roll No. 30580 Louisiana Capital Assistance Center 636 Baronne Street New Orleans, LA 70113 (504) 558-9867 (504) 558-0378 (fax) Attomeys for Applicant-Petitioner, Quincy Brown 013103 'I" DOCKETNUMBER ________ DIVISION ORLEANS CRIMINAL DISTRICT COURT, PARISH OF ORLEANS STATE OF LOUISIANA QUINCY BROWN, #447101, Petitioner VERSUS BURL CAIN, Warden of Louisiana State Penitentiary, Custodian FILED: DY.CLK. MEMORANDUM IN SUPPORT OF AMENDED ORIGINAL APPLICATION FOR POST-CONVICTION RELIEF NOW mTO COURT comes petitioner, Quincy Brown, through undersigned counsel, and respectfully submits this Memorandum in Support of Amended Original Application for PostConviction Relief. Procedural History and Facts3 Heming that an an-est walTant had been issued for him, Quincy Brown tumed himself in to the New Orleans Police Department on March 19, 1999. Hewas nineteen years old. Ultimately, Mr. Brown found himself fonnally charged with the anued robbery of Wayne Matthews which was alleged to have occulTed all March 11, 1999. 4 Petitioner pled not guilty at the arraignment all May 27,1999. On October 3, 2001, the case proceeded to trial before ajury. DespitePetitioner's best efforts to sever the counts, the State tried count 2 (armed robbery of Wayne Matthews) and count 3 (attempted first dew:ee murder of Leonard Jordan) together. Later that same day, October 3, 2001, Petitioner was found guilty on count 2 by an 11-1 vote; he was acquitted on COlmt 3. This is an extremely close, barely sufficient one eyewitness case. The state claimed that Wayne Matthews was robbed of the car he was driving in the area of Diana and VelTet Streets at 3 For clarity, more detailed developments in the case are included in the sections ofthe brief to which they relate. 4 Actually, Petitioner was charged in a 4-count Bill of Inforn1ation, as follows: Ct. 1, attempted first degree murder of Alvin Harris; Ct. 2, 3.ln1ed robbelY of Wayne Matthews; Ct. 3, attempted first degree murder of Leonard Jordan; Ct. 4, simple robbery ofYul Knighten. The State of Louisiana eventually entered a nolle pros as to COlU1t 1. Petitioner was found not guilty as to count 3. Petitioner entered a guilty plea to COlU1t 4, simple robbelY ofYul Knighten. This Petition is only with regards to count 2, the alleged armed robbery of Wayne Matthews. 2 013104 ,. around 9:00 p.m. on the night of March 11, 1999. The only evidence against Petiti011er, however, is Mr. Matthews. At trial,:Mr. Matthews himself was shown Petitioner's picture by the state on direct examination and testified that that was lIot the person who robbed him. No physical evidence connects Petitioner to the incident - not fingelprints, not DNA, not hair, and not fibers. Although Mr. 1vIatthews claimed a gun was used, 110 gun was ever recovered. Although Mr. Matthews claimed the g1.1l1 was fired during the encounter inside the car, no bullet was ever found. Although Mr. Matthews claimed the gun was a semi -automatic, no shell casing 'was ever found. In addition, though the gun was supposed to have been fired inside a car, no gUl1powder was ever found. There is a.bsolutelyno physical evidence to corroborate Mr. Matthews or link Petitioner to this offense. In addition, the car was recovered within a couple of hours in the same area from where it was supposed to have been taken with two people inside the car, neither of whom was Petitioner. Petitioner did not confess or make any inculpatory statements. There is simply nothing to cOlToborate Mr. Matthews' story. Moreover, Mr. Matthews is a witness of exu"emely dubious reliability. To be charitable, rvIr Matthews, at best, presented as a bizarre individual whose testimony was variously incomprehensible, inconsistent and thoIOughlyimpeached. As stated above, on direct examination by the state, Mr. Matthews testified that the picture of Petitioner was not the man who carjacked him-' When asked about what he was doing 011 the night ofthe incident, Mr. Matthews told the jury, "I'm look[ing] for [expletive deleted] if you want to lmow," brazenly using derogatory slang tenninology for a part of the female anatomy. Mr. Matthews also testified that he knew Petitioner from before the incident. However, Mr. Matthews himself initially told the police detective that "the pelpetratoris unknown to me." Indeed, in his initial 911 call to the police moments after the incident supposedly happened, the 911 operator asked Mr. Matthews for a description of the perpetrator and Mr. Matthews never mentioned any person's name but simply gave a clothing description. Obviously, if Mr. Matthews knew Petitioner from before and Petitioner was really the perpetrator, Mr. Matthews would have given Petitioner's S Ultimately, after:Mr. Matthews was pressed with leading questions, over repeated defense objection, the state got Mr. Matthews to say that it was Petitioner who had robbed him. 3 013105 . ·r· name to the 911 operator rather than saying that the perpetrator was unknown to him. During his trial testimony. Mr. ~atthews repeatedly said that he suffered fi'om sleep apnea and could not "remember a lot of things." For example, when asked on direct examination by the state "to describe for the jury in a little bit filore detail what exactly happened that night" Mr. Matthews respollded, "I'll do the best I could. I mean, I got sleep apnea. r don't remember a lot of things." Nevertheless, especially when confronted with inconsistencies in his testimony, missing details, or things that just did not make any sense, Mr. Matthews would respond with statements like "I can't remember everything from One minute to thenexe' For example, when confronted with the fact that he told the detective right after the incident that it happel.1ed very quickly, while at trial he testified that it lasted about 20 minutes, Mr. Matthews responded, "I also told you I have sleep apnea. I can't remember everything from One minute to the next." The circumstantial evidence strongly suggests that l\1r. Matthews was cnrising the neighborhood in search of drugs, and was either ripped offby his dealer or rented his car for a short period of time in exchange for drugs and then becanle concemed about getting it back. This comer where the alleged robbery occurred was welllmown for the distribution of drugs - a dark street with various abandoned houses known for little else. Supposedly, Mr. Matthews drove around the block for tenl11inutes talking with the person he later claimed robbed him. Moreover, Mr. Matthews conceded that a crack pipe was fOlmd in his car after the car was recovered. Mr. Matthews claimed that the cr;ack pipe was not his. !vIr. Matthews himself, however, prevented the pipe from ever being. tested to show who it belonged to because he threw it away. In order to avoid the appearance that he was covering up, Mr. !vIatthews then claimed that the police told him to throwaway this crucial piece of physical evidence. Not only does it not make any sense that the police would tell someone to destroy physical evidence, especially in a case without any, but the police did not back up Mr. Matthews' story. Further, while on the witness stand, Mr. Ivfatthews gave a bizarre account of his paying for sex with two women who were cousins, named Anna and Tasha. According to Mr. Matthew's, "I was having fun." Prior to the alleged robbery, Mr. Matthews leamed that Petitioner was Tasha's boy:6:iend. According to Mr. Matthews, while at Alma's house, Ivfr. Matthews saw Petitioner and Tasha together and learned that Petitioner is Tasha's boyfriend. :Mr. Matthews was apparentlYl10t happy about this, since he was paying her good money. Hell hath no greater fury than an older man 4 013106 ,. jilted -- particularly, here, an older man who was paying for what he wanted, pushed to one side by a younger lTIan who apparently did 110t need to pay. Finally, while Mr. Matthews' direct examination by the state began with his testimony that the picture of Petitioner was not the person who robbed him, it I:;nded equally strangely with Mr. Matthews' description of the condition of his car when he got it back just a few hours later. According to Mr. Matthews, the only difference in the car was that when the car was taken it was empty of gas, and when it was returned it was fnll.6 At the initial sentencing, the trial court sentenced Petitioner, who was a teenager at the time of the incident, to the maximum 99 years on the anned robbery. Later, the State charged Petitioner as an habihlal offender, based solely on a juvenile adjudication. At the later habitual offender proceeding, the trial COUli enhanced Petitioner's sentence with that prior juvenile adjudication. Petitioner's sentence was doubled to 198 years. Petitionertil11ely appealed his conviction and sentence to the Fourth Circuit Court of Appeal. On N1ay 28, 2003, the Fourth Circllit affinned Petitioner's conviction in a vvritten opinion, but reversed and remanded for the limited purpose of fonnally re-sentencillg Petitioner without the sentence enhancement. See State v. Brown, No. 2002-KA-1217 (La. App. 4" Cir. 5/29/03), 853 SO.2d 8. The Louisiana Supreme Court subsequently affinned the Fourth Circuit Court of Appeal. State v. Brown, 03-K-2788 (La. 7/6/04), 879 So.2d 1276. On October 14, 2004, the United States Supl·eme Court denied certiorari sought by Petitioner, 543 U.S. 826 (2004). On October 12, 2004, Petitioner was again sentenced to 99 years at hard labor without benefit of parole) probation, or suspension of sentence. Exhibit C. Finally, on February 22, 2005) the United States Supreme Court denied cemoT81i sought by the State for review of the Louisiana Supreme CourCs prior ruling. 543 US. 1177 (2005). On October25, 2005, Petitioner, through counsel, filed a Petition for Post-Conviction Relief 8l1d Notice of Intention to Amend. G Exhibit B. Petitioner now files this Amended Odginal Thus, Ivir. },iIatthews testimony, which seemed to surprise the prosecutor wellt as follows: Q. A. Q. A. Q. A. And could you describe what kind of condition it was in after you got it back? Well when they took it, it was empty. When I got it back it was full Of what? Gas. SO it came back with a full tank of gas? Right. 5 013107 • --I' ~ Application, supplementing and amending his original claims. No en-or complained of herein can be hamlless because of the paucity of evidence presented by the state at hial. CLAIMS MERlTING RELIEF ISSUE NUMBER 1 Petitioner received ineffective assistance of counsel, in violati,oll of his right to counsel, to due process oflaw, and to equal protection under the law, purslII.ant to U.S. Canst. Amends. V, VI, XIV, and La. Const. Art. 1, §§ 2, 13, 16. LAW AND ARGUMENT This petition raises mUltiple specific instances of defense counsel's ineffectiveness. Counsel have attempted to cite to and demonstrate the cumulative effects of the extensive incidents of ineffective assistance of counseL Although issues in addition to ineffectiveness are being raised herein, the standard for reviewing ineffectiveness claims is set forth immediately below and applies to all claims of ineffectiveness raised herein. The Louisiana and United States Constitutions guarantee to a defendant the effective assistance of counsel at each stage of the proceedings, including direct appeaL La. Const. art. 1, § 13; U.S. Canst. Amends. VI and XN. "The underlying purpose of requiring effective assistance of counsel is to ensure a fair trial. The benchmark, therefore, for judging any such claim must be whether counsel's conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced ajust result." State ex reI. Busby v. Butler, 538 So.2d 164, 167 (La. 1988). To prevail on a claim of ineffective assistance, a defendant must show both that counsel's perfomlance was deficient and that counsel's deficient perfonnance prejudiced the defense. This is the familiar two-pronged test of Strickland v. Washington, 466 U.S. 668,104 S.C!. 2052 (1984). As articulated by the Louisiana Supreme Court: Under Strickland,. a convicted defendant's claim that counsel's assistance was so defective as to require reversal of a conviction or death sontence has two components. First, the defendant must show that counsel's perfonnance was deficient. This requires showing the counsel made elTors so serious that counsel was not functioning as the "cotUlsel" guaranteed the defendant by the Sixth Amendnlent. Second, the defendant must show that the deficient perfonnance prejudiced the defense. This requires showing that counsel's errors were so serious as to deprive the 6 013108 c· defendant of a fair trial, a trial whose result is reliable. State v. Brooks, 94-2438, 661 So.2d 1333, 1337 (La. 10/l6/95). "[TJhe perfonnal1ce inquiry must be whether counsel's assistance was reasonable cOl1sideling all the circumstances" \vhere "reasonable" is viewed ill light of prevailing professional nonns. Strickland, supra) 104 S. Ct at 2065. Whether trial c0U11sel 's challenged perfonnance lnaybe justified on the grOl.Ulds of"strategi) depends on the fulfilhnent of counsel's duty to infonn strategy with fact: that is, counsel's duty to investigate. "[ S]trategic choices made after less than complete investigation are reasonab Ie precisely to the extent that reasonable professional judgments support the limitations on investigation." Brooks, supra, 661 So.2d at 1338 (quoting Burger v. Kemp, 483 U.S. 776, 794 (1987». Once counsel's performance has been f0U11d deficient, the reviewing court must assess whether such deficiencies have prejudiced the defense. This analysis is not govemed by an "outcome-determinative standard." Rather, under Strickland, "a defendant need not show that counsel's deficient conduct more likely than 110t altered the outcome of the case." When there is a "breakdown in the adversarial process," the "fundamental faimess of the proceeding" is implicated. Strickland, supra, 104 S. Ct. at 2068-69. And it is that fundamental faimess which is "the ultimate focus of inquiry," the Court tells us in a passage which admonishes lower comis not to interpret Strickland as a set of mechanical niles. ld. In assessing the prejudice resulting from counsel's deficient performance, moreover, the reviewing comi may not simply review every claimed enor individually to detel111ine whether it alone prejudiced the defense. Rather, the court must assess prejudice on the basis of the cumulative effect of counsel's eITors on the fairness of the trial. See Kyles v. Whitley, 115 S. Ct. 1555, 1567 (1995) (evidence that govenunent failed to disclose is considered collectively, not item-by-item, in detemlining whether the "materiality" requirement of Brady violation has been satisfied). Although Kyles specifically addresses the "materiality" standard by which courts judge the haml caused by an unconstitutional withholding offavorable evidence under Bradyv. Maryland, 373 U. S. 83 (1963) and United States v. Bagley. 473 U. S. 667 (1985), the '1naterialily" test and Strickland's ''prejudice'' prong are identical. 7 See also Henry v. Scully, 78 F.3d 51, 53 (2nd Cir. 1996) ("aggregate" of 7 In Strickland, the Court adopted a test for prejudice "[whichJ finds its roots in the test for materialityofexculpatoryinfonnation" undisclosed by the prosecutor. Strickland, §l!W, 104 S. Ct. at 2068, citing United States v. Agurs, 96 S.Ct2392, 2401-2402 (1976). The Strickland formulation of the test for prejudice was thus "rooted" in the Agurs standard for materiality; in tum, when the 7 013109 T' counsel's errors amollllted to ineffective assistance at tda!); Harris v. Wood, 64 F.3d 1432, 1438 (9 th Cir. 1995) (finding cumulative prejudice and observing "prejudice may result from the cumulative impact of multiple deficiencies.") (citation omitted); In re Jones, 917 P.2d 1175, 1193 (Cal. 1996) (reversing conviction in capital case all ground that "numerous deficiencies in defense counsel's performance, considered in the aggregate, were sufficiently significant to undennine our confidence in the outcome of the guilt phase of the trial."); Ex parte We1bom, 785 S.W.2d 391, 396 (Tex.Ct.Clim.App. 1990) (en bane) ("Although no one instant in the present case standing alone is sufficient proof ofineffective assistance of counsel, counsel's perfoDnance taken as a whole does compel such a holding.").8 These same standards apply when evaluating appellate counsel's perfomuUlce under Strickland. "[W]hen appellate counsel omits (without legitimate strategic purpose) 'a significant and obvious issue,' we win deem his perfOlmance deficient ... and when that omitted issue 'may have resulted in a reversal of the conviction, or an order for a new trial,' we will deem the lack of effective assistance prejudicial." Mason v. Hanks, 97 F.3d 887, 893 (7'" Cil". 1996) (emphasis added). In short, if there is a reasonable probability that the factfinder would have had a reasonable doubt, if trial counsel had perfonned effectively, then Petitioner received ineffective assistance of counseL In Petitioner's case, his trial and appellate counsel were ineffective in their failure to investigate and present mitigation evidence at the sentencing phase, failure to mo"ve for reconsideration of the excessive sentence, failure to raise the issue of excessive sentence on appeal, failure to raise the issue of the prosecutor's improper use of leading questions 011 appeal, failure to object to the State's improper arguments implying other crimes, failure to raise the issue of the Court refonnulated the criteria for materiality in United States v . Bagley, 473 U. S. 667 (1985) it did so in light ofthe standard in Strickland.. The Bagley Court characterized Strickland as a case involving "undisclosed evidence," highlighting the importance ofthe factfinders' ability to amve at a just result based upon all probative evidence, and held that withheld evidence meets the materiality standard only when there is "a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different. A 'reasonable probability' is a probability sufficient to undemline confidence in the outcome." rd. at 683. The inquiry thus seeks to determine "whether there is a reasonable probability that, absent the errors, the factfinder would have had a reasonable doubt respecting guilt." Id. at 682 n.13, quoting Strickland. I 8 The Kyles Court additionally explained that the "materiality" test or prejudice prong here - (1) "does not require demonstration by a preponderance that disclosure of the suppressed evidence would have resulted ultimately in the defendant's acquittal; (2) "is not a sufficiency of evidence test"; and (3) that once a reviewing court "has found constitutional error, there is no need for further ham1less-elTor review." Kyles, supra, 115 S. Ct. at 1566. 8 013110 '~r:;"" '1'; State's improper arguments implying other crimes on appeal, failure to move for a mistdal after the prosecutor's improper and prejudicial statements dUling voir dire and closing argUlnent implying other cdmes, failure to ra:ise prosecutor's improper and prejudicial statements during voir dire and closing argument on appeal, failure to raise the issue of wholly insufficient evidence to justify a guilty verdict on appeal, failure to strike a biased juror, and failUl"e to properly present a defense. ISSUE NUMBER 2 Petitioner received ineffective assistance of counsel, in violation of his right to counsel, to due process of Jaw, to equal protection uuder the law, and to be free from cruel, excessive, 01" unusual punishment pursuant to U.S. Const. Amends. Y, VI, VIII, XIV, and La. Const. Art. 1, §§ 2, 13, 16, 20, because his trial counsel failed to investig:ate and present evidence at his sentencing which would have appealed to the court's discretion in sentencing Petitioner to less than the maximum of 99 years in prison. LAW AND ARGUMENT Petitioner adopts in nl11 the Law and Argmnent in support of Issue Number 1. A cdminal defendant is guaranteed the effective assistance of counsel at all critical stages of the criminal process. U.S. CONST., Amends. VI and XN; LA. CONST. art. I, §§ 2, \3. In this case, Petitioner received ineffective assistance of counsel when his trial attomey failed to investigate and present evidence at his sentencing which would have appealed to the tlial court's discretion, likely resulting in a sentence less than the maximum of 99 years in pdson. Investigation of possible defenses and mitigating circmnstances is one of the basic responsibilities of a criminal defense lawyer. That duty is more weighty when defense counsel's client is facing such serious charges as Petitioner was facing in this case. "[AJdequate investigation is a requisite of effective assistance." Gray v. Lucas, 677 F.2d 1086, 1093 (5'h Cir. 1982), cert. denied, 461 U.S. 910,103 S.Ct. 1886 (1983); accord State v. Francis, 2001-K-1667 (La.App. 4'" Cir. 2002), 809 So.2d 1132, 1139. See also The American Bar Association, Standard 4-4.1, Duty to Investigate: (a) Defense cOlU1sel should conduct a prolllpt investigatioll of the circumstances ofthe case and explore all avenues leading to facts relevant to the merits of the caSe and the penalty in the event of conviction. The 9 013111 ·c· investigation should include efforts to secure infonnation in the possession of the pTosecution and law enforcement authorities. These ABA Standards have been credited by the U.S. Supreme COlu~t as "guides ta deternliningwhat is reasonable," Strickland v. Washington 104 S.C!. 2052, 2065 (1984), and cited with approval in Wiggins v. Smith, 539 U.S. 510, 522 (2003). "[W]e have long TefelTed [to these ABA StandaTds] as 'guides to determining what is reasonable.'" Rompilla v. Beard, 125 S.C!. 2456, 2466 (2005). As for presentation af evidence at the sentencing hearing, trial counsel also had an affimlative duty to seek a sentence less than the maximlUu for Petitioner: (a) Defense counsel should, at the earliest possible time, be ar become familiar with all of the sentencing alternatives available to the court and with community and other facilities which may be of assistance in a plan for meeting the accused's needs. Defense counsel's preparation should also include familiarization with the court's practices in exercising sentencing discretion, the practical consequences of different sentences, and the nonnal pattern of sentences forthe offense involved, including any guidelines applicable at either the sentencing or parole stages. The consequences of the various dispositions available should be explained fully by defense counsel to the accused. (b) Defense counsel should present to the court any grOlU1d which will assist in reaching a proper disposition favorable to the accused. If a presentence report or summary is made available to defense cmmsel, he or she should seek to verify the infonnation contained in it and should be prepared to supplement or challenge it if necessary. If there is no presentence report or ifit is not disclosed, defense counsel should submit to the court and the prosecutor all favorable infomlation relevant to sentencing and in an appropriate case, with the consent of the accused, be prepared to suggest a program of rehabilitation based on defense counsel's exploration of employment, educational, and other opportunities made available by community services. Criminal Justice Defense Function Standards, Standard 4-8.1. At the time of sentencing, the trial court saw Petitioner as a mall with a long and checkered criminal history,~ "a danger to the community," and someone who is "extremely violent." In fact, the Judge actually said that "there are no relevant mitigating circumstances that would lead this Court to do anything other than give you the maximum sentence." See Exhibit D. If trial cOlUlsel had properly investigated their case, they would have learned and could have presented evidence to the trial court to show that the court's perception of Petitioner was not only in elTor regarding his criminal record, but was also severely limiled by the absence of any information highlighting both his positive personal attributes and the tremendous struggles he faced in his childhood. 9 Specifically) the trial court read Petitioner's arrest history into the record without regard to the dispositions of the arrests (many of which had no dispositions, or have since been proved otherwise defective). See Isslle 8, infra. 10 013112 • "~r::" '-T: Unfortunately, due to the ineffective assistance ofPetitioner's trial counsel, the trial court was never properly introdL~ced to Quincy BroVVIl, a young man who exhibited much compassion early on in his life, but who, after a series of violent events and being functionally abandoned by his cocaineaddicted mother, became a victim of his impoverished envirorunent. Quincy's childhood was lost soon after he sought a life outside of his home, becoming entangled in a violent cIO\...·d and eventually being incarcerated for the crime of 8nother lO; the majority of Quincy's formative years were spent, wrongfully, behind bars. Quincy is a young man who was never properly perceived by the justice system and who has never gotten a break. Specifically, h"ial counsel should have presented evidence to the trial court underlining Quincy'S youth (he was al1lere 19 years of age when this allegedrabberyoccun·ed)II, combined with the fact that he had been deprived of most of his childhood by a wrongful juvenile incarceration and by the toll that drugs and violence took on his home life. An investigation into and presentation of Quincy's life would have shown that before the incidents which scalTed his childhood, Quincy, the youngest child in his family and lovingly called "QueakY Koala" by his siblings, was a typical young boy who liked to play outside, particularly with animals. Several of his family members thought he was destined to become a musician, like his father, when he grew up. Quincy was described by his grandmother as a sweet child, one "\vho would take food from his house to give to neighbors who were hl.mgry.12 Unfortunately, despite his promising early years, several devastating events combined to tremendously complicate Quincy'S life. When Quincy was seven or eight years old, he was involved in an accident in which he was hit in the head Mth the blade of a machete. The blade hit Quincy near the hairline and removed a chunk of his forehead, resulting in a severe injury requiring him to go to the hospital for treatment. Evidence of the severity of the injury can be seen from the fact that 10 See Issue 8, infT£b for further detail on Quincy's juvenile adjudication the Louisiana FOUlih Circuit Court of Appeals deemed "defective." 11 The youthflllness of the defendant is a factor that must be considered in sentencing. Hitchcock v. Dugger, 481 u.s. 393,107 S. Ct. 1821,95 L. Ed. 2d 347 (1987) (that defendant was 20 years old at the time of crlme nlust be considered mitigating); See also State v. Paddie, 434 So.2d 392,394 (La. 1983) (finding that despite trial court's opinion that "defendant at age twenty-wo 'should have Imown better, ," defendant's young age still should have been considered mitigating). 12 See State v. Maltz, KA-0425 (La. App. 4 Cir. 1983) 436 So.2d 712, 714 (finding that evidence that defendant has led "an abiding life" up until the time of the crime should be considered mitigating by a court). Although Quincy had a vastly shorter life history than Maliz, due to Quincy's young age, his counsel nonetheless should have provided evidence oftlle good deeds he performed early in his life, before the present incident led to his incarceration. 11 013113 T· since being hit in the head with the machete blade, Qnincyhas had a blinking problem as well as a neck twitching tick. In addition to being terrifying to experience, tIlls accident probably caused neurological damage which affects Quincy's mental processes; trial counsel should sought funds for a mental health expeli to explore the neurological damage.l~ Trial counsel should have also explained to the trial court how drugs and violence became a fixture in Quincy's family life. Quincy suffered greatly in his childhood when his mother became addicted to drugs. Due to his mother's psychological and emotional absence once she became heavily involved in drugs, Quincy's behavior changed for the worse-not because he is a bad person - but because he was a young child coping with a terrible situation. 14 Additionally, violent episodes accompanied the dmg use and subsequent neglect. Quincy remembers the violence vividly; for example, he recalls his mother's boyfriend cutting his mother's W11St. He also remembers that the family subsequently arranged to have the boyfriend beaten by neighborhood friends in retaliation. Unfortunately, Quincy's peers did not allow escape from the violence. Quincy's childhood friend, JB, was killed over drugs; Quincy is still haunted by nightmares of seeing his fuend lying dead at the top of the stairs, mouth open. While Quincy's mother lived a life of dmgs and violence, Quincy was raised predominantly by his oldest sister, Sholonda. Brown Alfred, who did her best to act as a surrogate mother for her younger brother. However, a. sister can be no replacement to a child whose mother has chosen drugs over him. As a result of his mother's absence during his fonnative years, Quincy became involved with a much older crowd of boys who led to him getting into serious predicaments with the law, despite his own innocence and naivete. As a child and young adolescent, Quincy had virtually zero opportunities to discover life outside of the Fisherprojects where he was raised. He was incarcerated before entering high school due to a juvenile adjudication for which he is factually innocent. However, Quincy positively responded to his juvenile incarceration and is therefore extremely likely to be rehabilitated in adult prison. Specifically, while incarcerated as ajuvenile, Quincy's educational work quality was an "A" average. Quincyparticipated in all counseling sessions, following directions promptly and accepting "See State v. Foster, 2002-KA-0190 (La. App.4 Cir. 12/11/2002) 834 SO.2d 11S8 (holding that mental illness should be considered amitigating factor in sentencing). The neurological danlage stemming from Petitioner's head injury should have signaled to trial counsel that mental health investigation should have be perfonned, and expert analysis procured and presented at sentencing. 14 See State v. Ezemack, Sl-KA-0646 (La. 19S1) 40S So.2d 907, 90S (citing an "emotional strain" as a factor to be considered mitigating). 12 013114 . ·1": constructive criticism. Additionally, Quincy learned to accept responsibility for his actions and had an open mind to change. In the stnlctured environment, Quincy sought positive direction. \5 Furthermore, Quincy continues to have a very close family of siblings, nieces, andnephews, all of whom are available and willing to help support Quincy outside of prison. liS He cares deeply about his family and they care deeply about him. Exs. E-l Finally, in addition to all the details about Quincy's life, trial counsel should have emphasized the fact that the victim of the alleged robbery was not physically injured at all by the alleged incident. 17 Details of the crime are importal1l sentencing factors and here, where, victim suffered 110 physical injuries, the court should have been directed to cOllsiderthe absence ofvictil11's injury as a mitigating factor. IS All oft11is infonnation would have assisted the trial court in determining that a sentence far less than the ma..'dmlUll sentence of 99 years in prison at hard labor, without benefit of parole, probation, Or suspension of sentence, was wan"anted for this defendant. Petitioner's trial attomey never investigated Or presented these issues to the trial court at the time of sentencing. In fact, the record in this case does not contain any discllssion whatsoever of any potentially mitigating factor in Petitioner's case and therefore the sentence must be vacated. At the sentencing hearing ofJ anuary 18, 2002, the trial court asked trial cOlIDsel ifhe had anything to proffer, to which trial cOllnsel responded, "Your Honor, I don't think the defense does." Exhibit D. Trial counsel completely failed to offer any mitigating evidence to the trial court that would have supported a lessthan-the-maximum sentence. In a case similar to Petitioner'S, where the offender was young and the sentence was long (100 years), the Louisiana Supreme Court was particularly troubled by the trial court's failure to assess mitigating factors. State v. Davis, 449 So. 2d 452,454-455 (La., 1984): 13 The potential for rehabilitation is certainly a mitigating factor that should be considered by the trial court at sentencing. State v. Trahan, 81-A-2062 (La. 4/5/82), 412 So.2d 1294; State v. Jones, 80-KA-2379 (La. 51l8/81), 398 So.2d 1049. 16 A strong family support is certainly a mitigating factor to be considered by the trial court State v. Bowgeois, 81-KA-0588 (La. 11/16/1981),406 So.2d 550; Statev. Molinet, 393 So.2d 721 (La.1/261l981). 17 See State v. McClain, 81-KA-2713 (La. 6/1111982), 415 So.2d 936 (remanding for resentencing On aggravated! battery where, inter alia, "the victim was apparently not seliously injured by defendant's actions.") 18 See State v. Walker, KA-29877 (La. App. 2 Cir. 10/29/1997) 702 So.2d 18, 22 (stating that "maximum or near maximum sentences are to be reserved for the worst offenders and worst offenses"). 13 013115 T· "The record is devoid of any indication that the trial court considered the defendant's personal history, his mental and emotional health, or his potential for rehabilitation. Additionally, some of the infonnation in the pre-sentence investigatiol1 report that was considered was inaccurate. Thus, the record simply does not reflect that the trial court adequately considered the guidelines set out in La. C.Cr.P. alt. 894.1 in paIiicularizing the sentence to the defendant." 14. (sentence vacated). To give someone Petitioner's age (19 years old) the equivalent of a sentence greater than life imprisorunent is excessive for a crime in which no person was ultimately hanned and no property ultimately taken. State v. Jackson, 631 So.2d 1295 (La. App. 4 Crr. 1994) (gross upward deviation for ,"med robbery sentence not adequately supported); State v. Jolmso!!, 97-2439 (La. 01116/98); 707 So.2d 46 (per curiam) (remanded for resentencing as record does 110t provide adequate factual basis for imposition of consecutive maximlUll tenns for this 18 year old first offender); State y. Bums, 97-1553 (La. App. 4 Cir. 11/10198),723 So.2d 1013 (life sentence excessive on a fourth felony offender)." Additionally, the victim of the alleged anned robbery was quite satisfied for Petitioner to be released. At trial, :Nir. Matthews stated, "V/hat happened two, three years ago, I've forgiven [Petitioner1for this. I don't care about that no more." Ex. K, p. 117. For tlus to be completely ignored by the trial court violated both statutory law and the federal constitution inasmuch as a trial court must consider all relevant mitigating factors to avoid a sentence which is grossly disproportionate to the seriousness of the crime. See State v. Carter, 29,972 (La. App. 2 Cir. 12110/97); 704 So. 2d 832; State v. Maschek, 97-0023 (La. App. 1 Cir. 12/29197); 705 So.2d 1192. For the trial court to not be reminded of this by trial counsel at sentellcing rendered trial counsel completely ineffective. At a minimum, without any additional evidence, the trialjudge in this case should have been able to articulate at least two mitigating factors based on the record before the COlirt: Petitioner's age and the forgiveness of Mr. Matthews. Trial counsel had an affinnative duty to argue for a sentence less than the maximum for his client. Counsel provided ineffective assistaI1Ce when he failed to discharge this duty. U Petitioner also asserts his intemationallaw claims against excessive punishment. See International Covenant on Civil & Political Rights, American Declaration a/the Rights and Duties of Mall, Universal Declaration of Human Rights, and other such international instruments. 14 013116 '1'· The trial record indicates that counsel was tl10roughly unprepared for the sentencing hearing. Indeed, trial counsel failed to present any substantive evidence or argument for mitigation. 20 As a result, Petitioner was denied his rights to the effective assistance of counsel, to due process of law, to equal protection under the law, and to be free from cruel, excessive, or unusual puni.slmlent. Therefore, Petitioner's sentence must be vacated. ISSUE NUMBER 3 Petitioner was prejudiced, in violation of his rights to be pr1esumed innocent until prol'en guilty, to a fair trial, to assistance of counsel, to be free of cruel, excessive, or unusual punishment, to due process, and to equal protection under the law, U.S. Canst. Amends. Y, VI, XIV; La. Const. Art 1, §§ 2, 13, 16, 20 when the trial judge sentenced him to the maximum possible punishment of 99 years in prison at hard labor. LAW AND ARGUMENT A criminal defendant is constitutionally guaranteed to be presumed im10cent until proven guilty, to a fair tria~ to assistance of counse~ to be free of cruel, excessive, or unusual punishment, to due process, and to equal protection under the law, U.S. Canst. A.mends. V, VI, XN; La. Canst. Art 1, §§ 2, 13, 16,20. Petitioner was denied these rights and was prejudiced by the denial when the trial court sentenced him to the maxilUum possible punishment of99 years in prison at hard labor. Petitioner is serving the maximum sentence for rumed robbery, a term of 99 years for an offense allegedly committed by him at age 19. Maximum sentences provided by the statutes are reserved for the lI wors t kind of offender." State v. Soco, 441 So. 2d 719, 720 (La. 1983) citing State v. Quebedeaux, 424 So. 2d 1009, 1014 (La. 1982). Yet, Petitioner is c1earlynot the "worst kind of offender." He was nevertheless effectively given a life sentence while still a teenager. A. Petitioner's sentence is cruel and unusual. in violation oftbe Eighth Amendment to the United States Constitution. The Eighth Amendment to the United States Constitution provides: "Excessive bail shall not be required. nor excessive fines imposed, nor cnlel and unusual punishments inflicted," This 20 At the sentencing hearing, trial counsel merely objected to (1) the excessiveness afthe sentence; (2) the reliance on ajuvenile adjudication as an aggravator; and (3) the court's reliaJ.1ce in sentencing on the state's mis-characterization ofthe offense. Ex. D. 15 013117 ..,..., provision is applicable to the States through the F0U11eenth Amendment. The Eighth Amendment guarantees individuals the right not to be sUbjected to excessive sanctions. This right flows from the basic ''precept of justice that ptmislunent for crime should be graduated and proportioned to [the] offense." Roper v. Si11l1nol1s, 543 U.S. 551, 125 S.C!. 1183, 1190, 161 L.Ed.2d I (2005), citing Atkins v. Virginia, 536 U.S. 304, 122 S.C!. 2242, 153 L.Ed.2d 335 (2002) alld Weems v. United States, 217 U.S. 349, 367, 30 S.C!. 544, 54 L.Ed. 793 (1910). Faithful to the Eighth Amendment's text, the United States Supreme Court has held that the federal Constitution directs judges to apply their best judgment in detem1ining the proportionality of fines, bail, and other forms of punishment. "It 'would be anomalous indeed' to suggest that the Eighth Amendment makes proportiol1alityreview applicable in the context of bail and fines but not in the context of other forms Ofpwlislunent, such as impIisOlIDlent." Ewin2:v. Califomia, 538 U.S. 11,33, 123 S.C!. 1179 (2003). B. Petitioner's sentence is cruel. excessive. and unusual, in violation of Art. 1. § 20 of the Louisiana Constitution. The parallel guarantee in the Louisiana Constitution is found at Art. 1, §20, which states: "No law shall subj ect anyperson to euthanasia, to tortl.U"e, or to cruel, excessive, or unusual punishment. ... " This prohibition against "excessive" punishment found in the Louisiana Constitution "requires the courts to do justice in each case, regardless of any legislative assertion.'o2\ State v. Sepulvado, 367 So.2d 762,766 (La. 1979) citing The Declaration of Rights, Jenkins, L. W., 21 Loy.L.Rev. 9, 39 (1975)." Indeed, even "[mlandatory penalties are particularly suspect because they frequently have no relation to the magnitude of the offense." 367 Soold at 766. Although the legislature defines the range of punislmlent for felony offenses, the Supreme Court has recognized that "the imposition of a sentence, although within the statutory limit, may violate a defendant's constitutional right against excessive ptlllishment." State v. Dorthey, 92-KA- " See also Ewingv. California, 538 U.S. 11,34,123 S.C!. 1179 (2003) where the Supreme COlUi gave several examples of situations where courts are called upon to exercise discretion within the context of the Due Process Clause, including inter alia "exercis[ingJ their wise judgment in assessing the proportionality of all forms ofpUllislunent." 22 The Court in Sepulvado continued: "This standard allows the courts to avoid strained intel'pretations of what is. cnIe1 and unusual punishment, in order to reach tile sometimes more important question of whether the punishment does, in fact, fit the crime." 367 So.2d at 766. Petitioner asserts that had his trial counsel investigated his case and the mitigating circumstances available in this case, counsel could have submitted evidence to the trial court that a sentence of 99 years in prison at hard labor does not, in fact, fit the crime. 16 013118 T· 3120 (La. 9/10/93)) 623 So.2d 1276, 1280. Petitioner's sentence is excessive under Article 1, Section 20 of the Louisiana State Constitution. A punishment is constitutionally excessive ifit makes no measurable contribution to acceptable goals of punishment and is nothing more than the purposeless imposition of pain and s1.1ffering and is grossly out of proportion to the severity of the crime. Jlj. The Dorthey Court held that, pursuant to Art. 1, § 20 of the Louisiana Constitution, a trial COUl1 has the duty to reduce a sentence when the trial court detemlines that a punishment imposed by statute makes no "measurable contribution to acceptable goals ofpunisbment" or that the sentence amounts to nothing more than "the purposeful imposition of pain and suffering" and is "grossly disproportionate to the severity ofthe crime." See also, State v. Fobbs, 99-1024 (La. 9/24/99), 744 So.2d 1274 (remanding for detelIDination that the mandatory minimum teml without benefit of parole, probation, or suspension of sentence is excessive "as applied to this particular offender." Emphasis added). More recently, the Louisiana Supreme Court has considered the issue of the possible excessiveness of a life sentence in State v. Wilson, 2001-2815 (La. 11122/02), 836 So.2d 2. In vacating the life sentence and remanding to the trial court, the Supreme COUli was clear: ... the comi of appeal should have remanded tins case for sentencing because the trial judge has the authority and the duty to impose the sentence fully cognizant ofthe nature of the crime for which defendant is being sentenced. *** To rebut [the presumption that a sentence is constitutional], a defendant must show something more than a record of non-violent offenses. Instead, he must clearly and convincingly show that "[be] is exceptional, which in this context means that because of unusual circumstances this defendant is a victim of the legislature's failure to assign sentences that are meaningfully tailored to the culpability of the offender, the gravity afthe offense, and the circumstances ofthe case." *** Defendant is entitled to have the district court impose the sentence anew, and, in COImect10n therewith, to present evidence and/or argument to the disirict court judge that a sentence of life imprisonment without the benefit of parole, probation, or suspension of sentence is ullconstitutionally excessive ... *** The trial judge in this case has the duty to examine the reduced conviction and determine ... whether the mandatory sentence is constitutional as applied to this defendant. 836 So.2d at 3-4. In this case, Petitioner had a constitutional right to have the tlial court consider sentencing him to something less than the maximum sentence ofimprisorunent based onhis lexceptional[ityJ" and the "unusual circumstances" of this defendant Indeed, the trial court would have had the authority and duty to sentence Petitioner to less than the maximum tenn of99 years imprisorunent 17 013119 "1": if tlial counsel had investigated and shown that the maxilnlUTI sentence is unconstitutionally excessive "as applied to [Petitioner]." But the trial court never had the opportunity to make any such detennination in this case as Petitioner's trial attorney failed to investigate and present evidence at his sentencing that would have revealed that Petitioner's sentence is excessive. See Issue 2, supra. A sentence maybe excessive even ifit complies with the ranges presclibed by the legislature. State v. Gabriel, 450 So. 2d 611, 620 (La. 1984). hI tlIis case, violations ofLSA-RS. 14:64 (armed robbery) provide judges with wide discretion in sentencing defendants to anywhere between ten and 99 years in prison. Petitioner's sentence is cruel, excessive, and unusual compared to other sentences for armed robbery and greatly disproportionate to the guidelines suggested by the Louisiana Supreme Court. A 99-year sentence is not a matter to be considered lightly. State v. Douglas, 389 So. 2d 1263, 1267-1268 (La.1980). Without hope of parole or probation, Petitioner, unlike similarly situated defendants, has received a life sentence. The maximum sentence for anned robberies is more typically imposed where the victim suffers serious physical injuries or loss. State v. Marshall, 660 So. 2d 819, 829 (La., 1995) (99-year sentence not excessive where victim seriously physically wounded). In Petitioner's case, the victim was not physically injured at alL Indeed, he recovered his car in better condition23 approximately four hours after it was allegedly stolen. A maximum sentence means that there is absolutely no hope of rehabilitation, one of the stated goals ofthe Louisiana Penal System. The Louisiana Supreme Court has vacated maximum sentences with similar circumstances, noting Defendant's prior juvenile record, and the circumstances of his present offense, may have justified a finding that he warranted a substantial sentence ofimprisOlIDlent. As we noted inState v. Douglas, 389 So. 2d 1263, 1267 (La. 1980) armed robbery is an offense "strongly condemned by our legislature rl and punished accordingly. Nevertheless, we do 110t agree with the trial court's conclusion that at the age of 17, this first felony offender has !'[no] chance ofrehabilitationlT and that the court had IIno other altemative l1 thall to impose a sentence close to the maximum. Defendant's sentence appears disproportionately severe when compared to the penalties imposed in other armed robbery cases with more aggravating circumstances. See, e.g., State v. Smith, 433 So. 2d 688 (La. 1983); State v. Williams, 414 So. 2d 371 (La. 1982). State v. Dean, 438 So. 2d 213 (La. 1983). The Louisiana Supreme Court has found sentences above 50 years constitutionally excessive for first offenders convicted of armed robbery. State v. Smith 2001-2574 (La. 1/14/03), 839 So.2d 23 At trial, lV1r. :Matthews testified that when he recovered his car, its gas tank was full of gas. 18 013120 T' I (thirty-five to fifty-year range found acceptable); State v. Thomas. 98-1144 (La.10/9/98), 719 So.2d 49 ("the defendant's total sentel1ce remains within the 35 to 50 year range tIlls Court has found acceptable for first offenders convicted of anned robbery"); State v. Augustine 555 So.2d 1331 (La.1990) (finding that a forty-year sentence for an 18-year old first offender guilty ofanned robbery is not unconstitutionally excessive). A brief survey of sentences within the Fourth District of Louisiana for runled robberies illustrates that Petitioner's sentence to the maximum of 99 years is cmel, excessive. and unusual compared to sentences imposed in other anned robbedesY A20-year old defendant with extensive criminal history and a continual pattern of criminal conduct received a 20-year sentence for armed robbery that was premeditated. State v. Spot, 2001-2083 (La.App. 4" Cir. 3/6/02), 812 So.2d 801, writ denied, 2002-1298 (La. 4/25/03), 842 So.2d 391. A 34-year old defendant, with two prior convictions for burglary and one conviction for possession of a fireruTIl by a felon, received 50 years forrobbing a baIJ.k at a major intersection threatening many ilmocent lives. State v. Hamilton, 20021281 (La.App. 4th Cir. 12/4/02), 834 So.2d 567, writ denied, 2003-1641 (La. 5/21104), 874 SO.2d 163. Another defendant received 20 years for al1ned robbery after following a woman and her two small children and then robbing them of their money and jewelry at gunpoint. State v. Algere, 20000033 (La.App. 4" Cir. 2114/01), 780 So.2d 1131, writ denied, 2001-0999 (La. 8/30102), 823 So.2d 934. See also, State v. Carter, 99-KA-2234 (La.App. 4 Cir. 1124/01),779 So.2d 125 (2 I-year old defendant sentenced to 35 years each count for 3 counts ofannedrobbery, to run concurrently, where defendant had placed a gun to the head of one ofthe victims and tllleatened her and had ajuvenile accompanying him and defendant had several adult arrests ruld had spent three years in ajuvenile facility); State v. Jones, 2000-KA-1699 (La.App. 4 Cir. 1124/01),779 So.2d 109 (20 year sentence for 21-year old defendant who had all extensive juvenile criminal record with no work history, an adult criminal record that included multiple stolen Car arrests and where defendant took the keys from the victim, jumped into the car, and drove the car away); State v. Washinszton, 2000-KA -1055 (La.App. 4 Cir. 9/14/01), 793 So.2d 376 (30 year sentence for defendant who had multiple prior 24 In2001, there were 221 people admitted to the LouisianaDepartment ofeorrections with a sentence for Anned Robbery. The average sentence was 184.5 montlls (or 15 years and 4.5 months). See WendyNaro, LouisianaDepartment of Public Safety and COITections: Ten-Year Adult Secure Population Projection 2002-2012, (Mal' 2002) at 2l. http://www.corrections.state.!a.us/ Statistics!AdLlltPopulationProj ectionffiEPORTtpdf. Petitioner was convicted of anlled robbery on October 3, 2001, and he was eventually sentenced to 99 years (or 1188 months). 19 013121 .. ~. arrests and who had pointed a gun at the victim's 6-lTIonth old son to coerce the victim into complying, stnlck the victim in the face and stomach with the gull, and put the gun into the victim's mouth after making him !meel). Petitioner's sentence is clearly cl1lel, excessive, and unusual based upon similar armed robbery sentences within the Fourth Circuit. See State v. McKeel, 443 So.2d 753 (La.App. 4 Cif. 1983) ("A comparison of punishments in the sanle jUl1sdiction for other offenses is helpful in detennining whether a particular sentence is so disproportionate as to constitute 'cruel' or 'unusual' punishment under the Eighth Amendment to the United States Constitution, or 'excessive' puuislunent under Art. I, Sec. 20 ofthe Louisiana Constitution of 1974. State v. MallelY, [364 So.2d 1283 (La. 1978)],,); State v. Jackson, 00-0388 (La. 9/21/01). 797 So.ld 33 ("A court's proportionality analysis under the Eighth .Amendment should be guided by objective criteria, including, ... the sentences imposed on other criminals in the same jurisdiction ... "). Because of this cruel, excessive, and unusual sentence, Petitioner has been prejudiced, in violation of his rights to be presumed innocent until proven guilty, to a fair trial, to assistance of cOlUlsel, to be free of cruel, excessive, or unusual pl.Ullshment, to due process, and to equal protection under the law. Accordingly, his sentence must be vacated. ISSUE NUMBER 4 Petitioner received ineffective assistance of counsel, in violation of his right to counsel, to due process of law, to equal protection under the law, and to be :free from cruel, excessive, or unusual punishment pursuant to U.S. Const. Amends. V, VI, VIII, XIV, and La. Const. Art. 1, §§ 2, 13, 16, 20, when trial counsel failed to move for reconsideration of sentence after Petitioner was sentenced to the maximum statutory term of99 years, and again when appellate counsel failed to raise the issue of excessive sentence on appeal. LAW AND ARGUMENT Petitioner adopts in full the Law and Argument in support of Issue Number L A criminal defendant is guaranteed the effective assistance of cotmsel at all critical stages of the criminal process. u.s. Amends VI and XIV; La. Const. art. 1, §§ 2, 13. In this case, Petitioner received ineffective assistance of counsel when trial counsel failed to file a motion to reconsider his sentence 20 013122 .,. as required by La.C.Cr.P. ali. 881.1 after the trial court sentenced Petitioner to the maximum statutory tenn of 99 years at hard labor without benefit of parole, probation, or suspension of sentence. Petitioner again received ineffective assistance of counsel when appellate counsel failed to raise the issue of excessive sentence on appeaL Sentencing is a "critical" stage in the proceedings, entitling a defendant to be provided with the effective assistance of cOlIDsel. McConnell v. Rhay, 393 U.S. 2, 89 S.C!. 32 (1968) ("The right to counsel at sentencing is no different."); State v. Carpenter, 390 So.2d 1296 (La. 1111 0/1980) ("The sixth amendment to the federal constihltion mandates the right, unless waived, to the assistance of counsel at every critical stage of the proceedings including sentencing."). This issue is simply replete with ineffectiveness. Here, Petitioner was brought to court on October 12, 2004 to be re-sentenced following remand by the Louisiana Supreme COurt. 25 The trial court sentenced Petitioner to the maximum statutory tenll of99 years at hard labor without benefit of parole, probation, or suspension of sentence. Although counsel orally objected to the excessiveness of the sentence at both sentencing hearings (Exhibits C, D), trial counsel failed to either orally or in '\VIiting file a motion to reconsider Petitioner's sentence as required by La.C.Cr.P. art. 881.1. To preserve Petitioner's right to raise any objection to sentence on appeal, trial counsel was required to make a motion to reconsider sentence within thirty days following imposition of sentence. La.C. Cr.P. art. 881.1. Failure to make such a motion "shall preclude [J the defendant from raising all objection to the sentence or from urging any gr01Uld not raised in the nlotioll on appeal or review." rd. Additionally, no appeal was ever noticed or taken by appellate counsel to seek review of the excessive sentence to which Petitioner had been relegated. Therefore, Petitioner received ineffective assistance of counsel at his sentencing hearing and again in the absence of an appeal to review the excessiveness of his maximl.Ull sentence. Trial counsel had a duty to preserve Petitioner's claim to have his sentence reviewed all 25 Petitioner was initially sentenced to 99 years at hal"d labor without benefit of probation or parole following his trial in 2001. The trial court later enhanced his sentence to 198 years as a habitual offender, which was subsequent1yvacated and remanded by the Louisiana Supreme Court for the limited purpose of fonnallyre-sentencing Petitioner Vlithout tile sentence enhancement. State v. Brown, 879 So.2d 1276 (La. 2004). On October 12, 2004, Petitioner was again sentenced to the maximum tenll of 99 years at hard labor without benefit of probation, parole) or suspension of sentence. 21 013123 ·c· appeal. The American Bar Association, Criminal Justice Defense Function Standards provide guidance on what is reasonable in this situation: Standard 4-7.9 Post-Trial Motions Defense cot1l1sel' s responsibility includes presenting appropriate posttrial motions to protect the defendant's rights. and Standard 4-8.2 Appeal Defense counsel should take whatever steps are necessary to protect defendant's rights of appeal. These ABA Standards have been credited bytlle U.S. Supreme Court as "guides to deternliningwhat is reasonable," Strickland v. Washington 104 S.Ct. 2052, 2065 (1984), and cited with approval in Wiggins v. Smith, 539 U.S. 510, 522 (2003). "[W]e have long referred [to these ABA Standards] as 'guides to detennining what is reasonable.'" Rompilla v. Beard, 125 S.C!. 2456, 2466 (2005). There is no reasonable explanation for why trial counsel would fail to protect Petitioner's right to appeal his sentence. The second prong of Strickl