Green v. Cain

• Court: Court of Appeals for the Fifth Circuit
• Decided: May 1, 2001
• Docket: 00-31186
• Status: Unpublished

Opinion

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 00-31186 Summary Calendar

CLIFTON JOSEPH GREEN,

Petitioner-Appellant,

versus

BURL CAIN, Warden, Louisiana State Penitentiary,

Respondent-Appellee.

-------------------- Appeal from the United States District Court for the Western District of Louisiana USDC No. 00-CV-86 -------------------- April 30, 2001

Before HIGGINBOTHAM, DUHÉ, and WIENER, Circuit Judges.

PER CURIAM:1

Clifton Joseph Green, Louisiana state prisoner # 96168, argues

that the district court erred in dismissing his 28 U.S.C. § 2254

habeas petition based on it untimeliness under 28 U.S.C.

§ 2244(d)(1) and the state procedural default bar. Green argues

that the State failed to disclose exculpatory evidence that could

have been used at his trial to impeach the identification testimony

of the victim in violation of Brady v. Maryland, 373 U.S. 83

(1963).

1 Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4. A habeas petitioner has one year from the date that his

conviction becomes final by the conclusion of direct review or the

expiration of the time for seeking such review to file a habeas

application. 28 U.S.C. § 2244(d)(1)(A). Exceptions to the accrual

date of the one-year limitation period include a state-created

impediment to the petitioner’s filing of an application and the

discovery of new facts supporting the claim which could not have

been discovered with due diligence on an earlier date. See 28

U.S.C. § 2244(d)(1)(B),(C),(D). The time during which a properly

filed application for state postconviction relief or other

collateral review is pending shall not be counted. See 28 U.S.C.

§ 2244(d)(2).

We assume without deciding that the prosecutor’s failure to

disclose the existence of a laboratory report showing the results

of serological testing of a paper towel and the State’s placement

of the report in the incorrect criminal file was a state-created

impediment that delayed the accrual date of the limitation period

on Green’s Brady claim until September 17, 1987. His claim would

then not be barred by the statute of limitations. See 28 U.S.C.

§ 2244(d)(1)(B),(D), § 2244(d)(2).

The state court dismissed Green’s state postconviction

application pursuant to La. Code Crim. P. Ann. art. 930.8 (West

Supp. 2000), which is an independent and adequate ground regularly

invoked by Louisiana courts to bar untimely applications. See

Glover v. Cain, 128 F.3d 900, 902 (5th Cir. 1997). When a state-

court decision has rejected, pursuant to an adequate and

2 independent state procedural bar, a constitutional claim that is

presented in a federal habeas application, this court may not

review the merits of the federal claim absent a showing of cause

and prejudice for the procedural default or a showing that failure

to review the claim would result in a miscarriage of justice. See

Boyd v. Scott, 45 F.3d 876, 879-80 (5th Cir. 1994).

We assume that the prosecutor’s nondisclosure of the report

and the misfiling of the report in another suspect’s file

constituted “cause” for Green’s failure to assert his Brady claim

in a state postconviction application within the state limitation

period. See Strickler v. Greene, 527 U.S. 263, 284 (1999).

To establish “prejudice,” Green must convince the court that

“‘there is a reasonable probability’ that the result of the trial

would have been different if the suppressed documents had been

disclosed to the defense.” Id. at 289 (citation omitted). Green

has failed to demonstrate that he was prejudiced by the

nondisclosure of the laboratory report before his trial because he

failed to establish that the laboratory test was conducted on the

actual paper towel used by the victim following the offense.

Further, the negative test results did not disprove that the

attempted rape occurred but only reflected the absence of vaginal

or seminal fluid on that particular towel.

Additionally, despite the testimony of Green’s three alibi

witnesses, the discrepancy between the testimony that Green always

wore a beard and the victim’s description of the robber as clean

shaven, and the unusual circumstances surrounding the out-of-court

3 identification, the jury accepted the victim’s unwavering testimony

that Green was the perpetrator. Green has failed to show that

there is a reasonable probability that the result of the trial

would have been different if the negative test results on a paper

towel had been presented to the jury.

Nor has Green demonstrated that the admission of the

laboratory report at trial would have established his actual

innocence of the armed robbery offense.

Green also argues that his claim that the grand jury

forepersons in Calcasieu Parish have always been selected on a

discriminatory basis is not procedurally barred. The district

court determined that this claim was time-barred by 28 U.S.C.

§ 2244(d)(1) and also procedurally defaulted.

It has been long been established that the conviction of a

black defendant cannot stand under the Equal Protection Clause if

it is based on an indictment from a grand jury from which blacks

were excluded on the basis of race. See Rideau v. Whitley, 237

F.3d 472, 484 (5th Cir. 2000). Thus, it was well-settled before

Green’s trial that a black defendant had the right to challenge the

discriminatory selection process of grand jury members, including

the selection of the grand jury foreperson. See Rose v. Mitchell,

443 U.S. 545, 551 (1979).

Green has not demonstrated that if he had acted with due

diligence that he could not have discovered facts reflecting the

alleged pattern of discriminatory selection of grand jury

forepersons in Calcasieu Parish in the years preceding his 1981

4 conviction. Green has failed to show “cause” for his failure to

raise the issue in the state court within the state prescriptive

period. He has not shown that proof of a discriminatory selection

process would establish his actual innocence. Thus, Green has

failed to show that the district court erred in determining that

review of this claim is procedurally barred.

Because Green has failed to show that he acted with due

diligence to discover the factual basis for this claim, the

district court did not err in determining that this claim was also

untimely filed under 28 U.S.C. § 2244(d)(1).

The district court’s dismissal of Green’s 28 U.S.C. § 2254

habeas petition is AFFIRMED.