     Case: 09-30715 Document: 00511366951 Page: 1 Date Filed: 01/31/2011




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                    Fifth Circuit

                                                 FILED
                                                                          January 31, 2011

                                       No. 09-30715                         Lyle W. Cayce
                                                                                 Clerk

JOSEPH SAM,

                                                   Petitioner - Appellant
v.

STATE OF LOUISIANA,

                                                   Respondent - Appellee




                    Appeal from the United States District Court
                       for the Eastern District of Louisiana
                                 No. 2:08-CV-5064


Before KING, D EMOSS, and PRADO, Circuit Judges.
PER CURIAM:*
       Petitioner–Appellant Joseph Sam was found guilty of possession with
intent to distribute cocaine in Louisiana state court. Following an unsuccessful
direct appeal and petition for state post-conviction relief, Sam filed a petition for
habeas corpus in federal district court. The district court determined that Sam
had not exhausted several of the grounds for relief in his petition and dismissed
it without prejudice. This court granted Sam a certificate of appealability on
three issues: (1) what claims Sam intended to raise in his habeas petition; (2)

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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.
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whether those claims were exhausted; and (3) whether Sam was willing to delete
his unexhausted claims from his petition. We conclude that Sam’s petition
presents an unexhausted claim, which he is not willing to delete, and AFFIRM
the district court’s judgment dismissing Sam’s petition without prejudice.
             I. FACTUAL & PROCEDURAL BACKGROUND
      After a bench trial in Louisiana state court, Joseph Sam was found guilty
of possession with intent to distribute cocaine and sentenced to 25 years’
imprisonment. His conviction was affirmed on direct appeal, and his writ to the
Louisiana Supreme Court was denied without reasons.
      On March 28, 2007, Sam filed a petition for post-conviction relief in
Louisiana state court, asserting several claims of ineffective assistance of
counsel and denial of due process for failure to receive evidentiary hearings
during his criminal proceedings. The trial court denied his petition. Sam sought
a supervisory writ from the Louisiana Court of Appeal, which the court of appeal
granted in part because the trial court did not properly address Sam’s claims
that his trial counsel provided ineffective assistance for failing to argue that he
was maliciously, vindictively, and selectively prosecuted. The court of appeal
otherwise denied Sam’s writ for his remaining ineffective assistance of counsel
and due process claims. Sam sought a writ of certiorari from the Louisiana
Supreme Court regarding his non-remanded ineffective assistance of counsel
claims, which that court denied without reasons.
      On remand, the trial court denied Sam’s claim that counsel was ineffective
in failing to argue that he was maliciously, vindictively, and selectively
prosecuted. Sam again sought a supervisory writ from the Louisiana Court of
Appeal, which was denied. He then sought a writ of certiorari on these claims
from the Louisiana Supreme Court.
      On December 8, 2008, Sam filed the instant habeas petition, which stated
four grounds for relief: (1) his conviction was obtained by use of a coerced

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                                       No. 09-30715

confession from a confidential informant; (2) his conviction was obtained by use
of evidence gained from an unconstitutional search and seizure; (3) his
conviction was obtained by use of evidence pursuant to an unlawful arrest; and
(4) his counsel was ineffective for failing to raise several issues before trial,
during trial, and on direct appeal. The state opposed his petition, arguing that
several of his claims had not been exhausted or were procedurally barred
because they had not been presented to the state courts.
       After filing his initial petition, Sam filed a Motion to Amend and Clarify
his petition (“Amended Petition”). In the Amended Petition, Sam asserted only
ineffective assistance of counsel claims and asked for an evidentiary hearing
before the district court.1 The magistrate judge granted Sam’s motion, over the
state’s objection, and concluded that his Amended Petition did not explicitly
withdraw any of the four claims listed in Sam’s initial petition. Based on the
initial petition and Sam’s Amended Petition, the magistrate judge concluded
that Sam had not exhausted the following claims: he had received ineffective
assistance of counsel when counsel failed to argue the he had been maliciously,
selectively, and vindictively prosecuted; he had been denied evidentiary hearings
by the state courts; and the tip leading to his arrest was unreliable because it
was coerced. Because Sam did not provide a basis for failing to exhaust those
claims, the magistrate judge recommended that the district court dismiss his
petition without prejudice.
       Sam objected to the magistrate judge’s report and recommendation on two
grounds. First, he stated that the magistrate judge erred in recommending



       1
         On appeal, Sam challenges the denial of an evidentiary hearing in the district court.
Even read liberally, however, Sam’s pleadings do not demonstrate how he has met the
requirements set out in 28 U.S.C. § 2254(e)(2) for entitlement to an evidentiary hearing in a
federal habeas corpus proceeding. See Dowthitt v. Johnson, 230 F.3d 733, 758 (5th Cir. 2000)
(concluding that petitioner was not entitled to an evidentiary hearing because he “has not
made a substantial showing of meeting the requirements set forth in § 2254(e)(2)”).

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dismissal on the basis of non-exhaustion of two claims Sam made in the initial
petition that were not included in the Amended Petition. Second, Sam argued
that his claims for ineffective assistance of counsel for failing to argue malicious,
selective, and vindictive prosecution had been exhausted in state court, and he
noted that he had filed proof of his exhaustion in the form of an affidavit on the
same day the magistrate judge issued his report and recommendation. The
district court considered Sam’s objections and dismissed Sam’s petition without
prejudice.   The district court also denied Sam’s request for a certificate of
appealability (“COA”).
      We granted the COA, stating that reasonable jurists “could debate the
district court’s finding regarding which habeas claims Sam intended to raise”
because some claims the magistrate judge found to be unexhausted were not
listed in the report and recommendation as claims Sam raised. Furthermore, we
stated that reasonable jurists could disagree as to whether Sam had exhausted
his claim that counsel was ineffective “for failing to argue that he was
maliciously, vindictively, and selectively prosecuted.” Accordingly, we granted
Sam’s COA “with respect to which claims were intended to be raised by Sam,”
“whether those claims were exhausted,” and “whether Sam was willing to delete
any and all unexhausted claims from his request for federal habeas relief.”
                         II. STANDARD OF REVIEW
      “We review a court’s findings of fact on requests for habeas corpus relief
for clear error and its rulings on issues of law de novo.” Wilder v. Cockrell, 274
F.3d 255, 259 (5th Cir. 2001) (citation and internal quotation marks omitted).
“Whether a federal habeas petitioner has exhausted state remedies is a question
of law reviewed de novo.” Anderson v. Johnson, 338 F.3d 382, 386 (5th Cir.
2003).




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                               III. DISCUSSION
A.     Claims Raised in Sam’s Habeas Petition
       The only claims Sam asserts in his habeas petition are those that he
included in his Amended Petition. In his Amended Petition, Sam stated that he
reread his petition and supporting memorandum and concluded that “he did not
express his claims for relief clearly.” He asked the district court for permission
to delete his initial brief and determine the merits of his habeas corpus petition
based on his Amended Petition pursuant to Federal Rule of Civil Procedure 15.
See United States v. Saenz, 282 F.3d 354, 356 (5th Cir. 2002) (Rule 15 applies to
federal habeas proceedings). The magistrate judge granted Sam’s motion, but
also concluded that Sam still asserted several non-ineffective assistance of
counsel claims because he had not explicitly withdrawn the form petition he
initially filed.
       This construction of Sam’s claims was incorrect. Sam’s Amended Petition
clearly stated that, after rereading his petition and noting that some of his
claims had to be deleted as unexhausted, there was one category of error that
entitled him to habeas corpus relief: ineffective assistance of counsel. His desire
to have his Amended Petition control his claims is further borne out by the fact
that he did not incorporate his initial petition into his Amended Petition and he
objected to the magistrate judge’s failure to delete claims asserted in his original
petition. Thus, the magistrate judge’s report and recommendation erred to the
extent it construed Sam’s petition as including claims asserted in his initial
petition that were not stated in his Amended Petition. See King v. Dogan, 31
F.3d 344, 346 (5th Cir. 1994) (“An amended complaint supersedes the original
complaint and renders it of no legal effect unless the amended complaint
specifically refers to and adopts or incorporates by reference the earlier
pleading.”). Sam’s Amended Petition asserts the following ineffective assistance



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of counsel claims:2
       (1) His pre-trial counsel failed to challenge inconsistent testimony
       by a state agent regarding how a confidential informant tip was
       obtained;
       (2) His pre-trial counsel failed to object to the use of a confidential
       informant’s tip on the basis that it was unreliable because it was
       coerced;
       (3) His pre-trial counsel failed to object to the use of a confidential
       informant’s tip on the basis that it was unreliable because it was
       obtained at a pretextual traffic stop;
       (4) His trial counsel failed to argue that he was being maliciously
       prosecuted in retaliation for an unrelated civil suit against the
       state’s trial attorney;
       (5) His trial counsel failed to argue that he was being vindictively
       prosecuted in retaliation for an unrelated civil suit against the
       state’s trial attorney;
       (6) His trial counsel failed to argue that he was being selectively
       prosecuted in retaliation for an unrelated civil suit against the
       state’s trial attorney;
       (7) His counsel on direct appeal failed to argue that the tip provided
       by the confidential informant, which led to his stop and arrest, was
       unreliable because it was coerced;
       (8) His counsel on direct appeal failed to argue that the police
       officer’s inconsistent testimony at the suppression hearing
       demonstrated that he did not have a proper basis for conducting a
       Terry frisk and the contraband seized was not subject to plain feel.




       2
           The magistrate judge’s report and recommendation (and the state) read Sam’s
discussion of the state court’s denial of his requests for an evidentiary hearing as a separate
claim for habeas corpus relief. It is not; rather, Sam’s argument is that § 2254(e)’s
presumption of correctness should not apply to the state courts’ adjudication of his ineffective
assistance of counsel claims because the state courts did not hold evidentiary hearings for
those claims. But see Valdez v. Cockrell, 274 F.3d 941, 948 (5th Cir. 2001) (“We . . . conclude
that a full and fair hearing is not a prerequisite to the application of [§ 2254(e)’s] framework.”).

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B.     Exhaustion of Sam’s Habeas Claims 3
       Sam’s § 2254 petition is governed by the Antiterrorism and Effective
Death Penalty Act of 1996 (“AEDPA”). Under AEDPA, a federal court may not
grant a writ of habeas corpus “unless it appears that . . . the applicant has
exhausted the remedies available in the courts of the State.”                    28 U.S.C.
§ 2254(b)(1)(A). “The exhaustion requirement is satisfied when the substance
of the federal habeas claim has been fairly presented to the highest state court.”
Fisher v. Texas, 169 F.3d 295, 302 (5th Cir. 1999). The petitioner must “afford
the state court a fair opportunity to apply controlling legal principles to the facts
bearing upon his constitutional claim.” Bagwell v. Dretke, 372 F.3d 748, 755 (5th
Cir. 2004) (citation and internal quotation marks omitted). A federal district
court may not adjudicate a habeas petition unless all claims in the petition are
exhausted. See Rhines v. Weber, 544 U.S. 269, 274 (2005).
       The state has conceded that Sam has exhausted claim one, and has
informed us that claims four, five, and six have been exhausted. Accordingly, we
need only address whether Sam’s remaining claims—numbers two, three, seven,
and eight—have been exhausted. The state argues that Sam has failed to
exhaust these claims in the Louisiana state courts.
       1. Claim Two: Counsel’s Failure to Object to Confidential Informant’s Tip
       as Unreliable Because It Was Coerced
       In Sam’s Amended Petition, he claimed that counsel “fail[ed] to
use . . . defense witness testimony from the motion to suppress,” which
purportedly “corroborated the petitioner’s defense . . . that the state’s
confidential informant information was coerce[d].” Sam raised this claim in his



       3
         Although Sam reasserted his substantive claims in his opening brief and did not
discuss exhaustion in his opening brief before this court, we do not deem the issue waived
because he discussed exhaustion in his reply brief, his petition for COA, and in his objection
to the magistrate judge’s report and recommendation. See Kittleson v. Dretke, 426 F.3d 306,
315 n.20 (5th Cir. 2005).

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petition for post-conviction relief in state court, alleging that counsel “failed to
use a defense witness who was the driver in the alleged traffic stop . . . to
impeach” the state witness’s assertion that the confidential informant
voluntarily contacted the police with the tip that led to Sam’s stop and arrest.
Although the phrasing of these claims is slightly different, the state courts had
a fair opportunity to address the issue presented in his habeas petition. His
state petition presented an identical legal issue with respect to the propriety of
counsel’s failure to properly challenge the state’s use of an unreliable tip, and the
facts underlying this claim have not changed from his state petition to his
federal petition. Therefore, this claim has been exhausted.
       2. Claim Three: Counsel’s Failure to Object to Confidential Informant’s
       Tip as Unreliable Because It Was Obtained at a Pretextual Traffic Stop
       In district court, Sam argued for the first time that counsel’s performance
was deficient because he failed to object that the tip, in addition to being coerced,
was also unreliable because the stop which led to the tip was a pretextual traffic
stop. This new argument requires the evaluation of an entirely different legal
theory for ineffective assistance of counsel and a new set of facts that were not
before the state courts. Because the exhaustion requirement is “not satisfied if
the petitioner presents new legal theories or factual claims in his federal habeas
petition,” Anderson, 338 F.3d at 386, Sam’s claim three was not exhausted in
state court and his habeas petition cannot be adjudicated in federal court, unless
he consents to delete this claim, see Rose v. Lundy, 455 U.S. 509, 520 (1982).4 In


       4
         Sam incorrectly argues that he is excused from the exhaustion requirement because
the state court’s refusal to hold evidentiary hearings on his post-conviction relief claims would
render exhaustion futile. We have previously stated that exhaustion is not required when
“ ‘there is no opportunity to obtain redress in state court or if the corrective process is so
clearly deficient as to render futile any effort to obtain relief.’ ” Graham v. Johnson, 94 F.3d
958, 969 (5th Cir. 1996) (quoting Duckworth v. Serrano, 454 U.S. 1, 3 (1981)); but see Jones v.
Jones 163 F.3d 285, 298–99 (5th Cir. 1998) (questioning Duckworth’s futility exception in
habeas petitions governed by AEDPA). However, Louisiana law provided Sam with an
adequate process to seek an evidentiary hearing on post-conviction relief, see LA . CODE CRIM .

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his pleadings before this court, Sam has agreed to delete this claim from his
petition for federal habeas relief.          Therefore, his only claims for deficient
performance of pre-trial counsel are claims one and two.
       3. Claim Seven: Appellate Counsel’s Failure to Argue Confidential
       Informant’s Tip was Coerced on Direct Appeal
       Sam clearly raised this claim before the trial court, the court of appeal,
and in his writ application to the Louisiana Supreme Court, which denied his
writ without reasons. Therefore, Sam has exhausted this claim.
       4. Claim Eight: Appellate Counsel’s Failure to Argue Police Officer’s
       Testimony During Suppression Hearing was Inconsistent
       A review of the state court record demonstrates that Sam has never
presented this claim to any Louisiana court. In his motion for post-conviction
relief, Sam’s only challenge to his appellate counsel’s performance was that he
failed to challenge the reliability of the confidential informant’s tip on direct
appeal, which has an entirely different legal and factual basis from a claim that
counsel was deficient for failing to challenge inconsistencies in the arresting
officer’s testimony. Accordingly, claim eight was not fairly presented to the
Louisiana courts for purposes of exhaustion. See Bagwell, 372 F.3d at 755. Even
if, as Sam claimed in his Amended Petition, Sam appealed the denial of his
motion to suppress on the basis that the officer’s testimony was inconsistent, he
did not fairly present an ineffective assistance of counsel claim to the Louisiana
courts on the same issue.          See Wilder, 274 F.3d at 262 (concluding that a
substantive claim raised on direct appeal was not exhausted because it was
“legally distinct” from an ineffective assistance of counsel claim involving the
same issue); Thomas v. Collins, 919 F.2d 333, 334–35 (5th Cir. 1990) (same).
Unlike his pretext claim, Sam has not stated that he is willing to delete his



PROC . art. 930, and Sam does not otherwise challenge the state court’s denial of an evidentiary
hearing on this issue in his Amended Petition.

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                                  No. 09-30715

ineffective assistance of counsel claim on this issue. Therefore, although most
of Sam’s claims have been exhausted, Sam’s petition presents an unexhausted
claim, and the district court may not address its merits. See Rose, 455 U.S. at
520.
                              IV. CONCLUSION
       Sam has not satisfied the exhaustion requirement for a habeas petition
because he did not present all of the claims in his federal habeas petition to the
Louisiana state courts. He has not claimed any excuse for this deficiency, and
he is not willing to delete the unexhausted claim. Therefore, the judgment of the
district court dismissing Sam’s petition without prejudice is AFFIRMED.




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