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Derryberry v. Warden

United States District Court, Western District of Louisiana

November 7, 2014

ERNEST D'WAYNE DERRYBERRY (#117394)
v.
WARDEN, AVOYELLES CORRECTIONAL CENTER

Ernest D'Wayne Derryberry, Plaintiff, Pro se, Cottonport, LA.

JAMES D. KIRK, UNITED STATES MAGISTRATE JUDGE. JUDGE DRELL.

REPORT AND RECOMMENDATION

JAMES D. KIRK, UNITED STATES MAGISTRATE JUDGE.

Pro se petitioner Ernest Derryberry filed the instant petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254 on June 24, 2014. [Doc. #1] Derryberry is an inmate in the custody of the Louisiana Department of Corrections, incarcerated at the Avoyelles Correctional Center in Cottonport, Louisiana. Petitioner challenges his 2011 adjudication as a habitual offender, and the forty-two year sentence imposed.

This matter has been referred to the undersigned for review, report, and recommendation in accordance with the provisions of 28 U.S.C. § 636 and the standing orders of the Court.

Procedural History

The factual background and procedural history, as set forth by the Louisiana Third Circuit Court of Appeals is as follows:

In 1987, Defendant, Ernest D'Wayne Derryberry, who had been charged with second degree murder, pled guilty to manslaughter, a violation of La.R.S. 14:31, pursuant to a plea agreement, and was subsequently sentenced to forty-two years imprisonment at hard labor. This court vacated the sentence on November 3, 2006, and remanded for further proceedings in State v. Derryberry, an unpublished writ bearing docket number 06-1063 (La.App. 3 Cir. 11/3/06). FN1 The basis of this court's decision was that at the time the crime was committed the maximum sentence for manslaughter was twenty-one years. Defendant was sentenced as a multiple offender. This court found that Defendant had not been properly advised of his rights as a habitual offender, and that no habitual offender adjudication was ever held.
FN1. Hereinafter this case will be referred to as Derryberry I.
On March 12, 2007, after remand, the State filed an amended habitual offender bill alleging that Defendant was a fourth felony offender. On May 6, 2011, Defendant was adjudicated a third felony offender via written order based on pleadings filed by Defendant and the State. He was sentenced on December 1, 2011, to forty-two years imprisonment at hard labor with credit for time served.
Defendant filed a Motion to Reconsider the Sentence on December 27, 2011. The motion was denied on January 9, 2012. Defendant now appeals the habitual offender adjudication and the sentence. For reasons which follow, this court affirms Defendant's habitual offender adjudication and sentence.
Defendant was originally charged with second degree murder of his step-brother, Errol Randy Fossett, outside a bus station in Pineville, Louisiana, on November 18, 1984, the day after Defendant killed his step-father in Texas. Defendant was taken into custody on November 19, 1984, and charged with second degree murder on January 3, 1985. Defendant was adjudicated incapable of proceeding to trial following a sanity commission hearing, and, on August 8, 1985, he was sent to the East Feliciana Forensic Facility. He was returned to Rapides Parish in June 1986 and was deemed able to proceed to trial.
On February 9, 1987, Defendant pled guilty to the reduced charge of manslaughter pursuant to a plea agreement, during which Defendant was informed that the State intended to file a habitual offender bill. On March 17, 1987, the State filed a habitual offender bill alleging Defendant was a second felony offender. The bill alleged that Defendant was convicted on December 8, 1980, of possession of marijuana with the intent to distribute. No habitual offender hearing was ever held.
On May 4, 1987, Defendant was then erroneously sentenced on the conviction of manslaughter to forty-two years imprisonment at hard labor. At the time of the offense in 1984, manslaughter was ...

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