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Carter v. Vannoy

United States District Court, E.D. Louisiana

April 30, 2015

JOMO CARTER,
v.
DARRELL VANNOY, WARDEN, SECTION

REPORT AND RECOMMENDATION

KAREN WELLS ROBY, Magistrate Judge.

This matter was referred to a United States Magistrate Judge to conduct hearings, including an evidentiary hearing if necessary, and to submit proposed findings and recommendations pursuant to 28 U.S.C. § 636(b)(1)(B) and (C), and as applicable, Rule 8(b) of the Rules Governing Section 2254 Cases. Upon review of the entire record, the Court has determined that this matter can be disposed of without an evidentiary hearing. See 28 U.S.C. § 2254(e)(2) (2006).[1]

I. Factual and Procedural Background

The petitioner, Jomo Carter ("Carter"), is a convicted inmate currently incarcerated in the Dixon Correctional Institute in Jackson, Louisiana.[2] On May 18, 2009, Carter was charged by Bill of Information in Jefferson Parish with one count of possession with intent to distribute marijuana, one count of possession with intent to distribute MDMA (3, 4-methylenedioxy-methamphetamine a/k/a ecstacy), one count of possession with intent to distribute cocaine, and one count as a felon in possession of a weapon.[3] He entered a plea of not guilty to the charges June 3, 2009.[4] The State entered a nolle prosequi on April 28, 2010, dismissing the second count charging possession with intent to distribute MDMA.

The record reflects that Detective Joseph Blackledge and several other officers with the Kenner Police Department began surveillance at 2628 Phoenix Street in Kenner for suspected drug activity.[5] The officers observed a man, identified as Carter, walk to and from the driveway of the home while meeting with several other men and engaging in hand-to-hand transactions. The officers also saw Carter go from inside the house to the rear of a car parked in the driveway. During the surveillance, the vehicle in the driveway never moved and appeared to be inoperable because of the deflated tires and accumulation of debris around the area. In addition, there was no license plate on the car and the officers discovered that the vehicle was not registered to Carter.

On April 1, 2009, the officers executed a search of the home and the car. Detective Blackledge focused on the trunk of the vehicle, where he frequently observed Carter standing with the trunk open. Carter saw the officers approaching and threw a white plastic grocery bag into the trunk and slammed the trunk lid shut. To confirm his suspicions, Detective Blackledge called for the certified narcotics K-9 dog to sniff the vehicle and the dog alerted to the rear section of the car. Detective Blackledge detained Carter while other officers detained a female, who was also outside with Carter. Carter complied with the detective's instruction and discarded the keys to the car. Detective Blackledge advised Carter of his rights and retrieved the keys.

When Detective Blackledge opened the trunk, he retrieved the white plastic grocery bag, along with other items, including a digital scale, a loaded.380 handgun, and a rifle. The grocery bag and the sandwich bags within it were found to contain 432.93 grams of marijuana and 18.68 grams of crack cocaine. The officers also recovered a second grocery bag within which were several sandwich bags, each holding small portions of marijuana totaling another 77.33 grams. A third grocery bag also held ten sandwich bags containing small portions of marijuana which totaled another 262.89 grams.

Carter was tried before a jury on April 28, 2010, and was found guilty as charged on the three remaining counts.[6] At a hearing held April 29, 2010, the Trial Court denied Carter's motion for a new trial.[7] After waiver of legal delays, the Trial Court sentenced Carter to serve concurrent terms of twenty-five (25) years in prison at hard labor on count one and twenty-five years in prison at hard labor on count three, with the first two years to be served without benefit of parole, probation, or suspension of sentence.[8] The Trial Court also sentenced Carter to serve a consecutive sentence of forty (40) years at hard labor on count four.

The Court held a hearing on June 14, 2010, on the State's multiple offender bill charging Carter as a fourth felony offender.[9] Carter entered a plea of guilty as a third felony offender in connection with count three, possession with intent to distribute cocaine.[10] The Court vacated the prior sentence on that count and sentenced Carter as third offender to serve twenty-five (25) years at hard labor to be served without benefit of parole, probation, or suspension of sentence and to run concurrent to the sentence on count one and consecutive to the sentence on count four.

On direct appeal to the Louisiana Fifth Circuit Court of Appeal, Carter's appointed counsel asserted two errors:[11] (1) it was error to deny the motion to suppress where the search of the car trunk was beyond the scope of the warrant; and (2) it was error to charge the jury that a less than unanimous verdict was sufficient to convict Carter on an offense punishable by hard labor. On his own behalf, Carter asserted the following errors:[12] (1) the State knowingly relied on false information from Detective Blackledge as obtained from a confidential informant; (2) the State knowingly allowed false testimony from Detective Blackledge that the confidential informant bought $20 worth of rock cocaine from Carter.

On August 30, 2011, the Louisiana Fifth Circuit affirmed Carter's convictions and sentences. The Circuit Court held that the challenge to the motion to suppress and the jury charge were procedurally improper having not been preserved for appeal, and otherwise lacked merit.[13] The Circuit Court also determined that the two prosecutorial misconduct claims raised by Carter were not preserved by contemporaneous objection, citing La. Code Evid. art. 103(A)(1) and La. Code Crim. P. art. 841(A), and that the claims were otherwise without merit.[14]

On February 10, 2012, the Louisiana Supreme Court denied Carter's related writ application without stated reasons.[15] Carter's convictions and sentences became final ninety (90) days later, on May 10, 2012, when he did not file a writ application with the United States Supreme Court. Ott v. Johnson, 192 F.3d 510, 513 (5th Cir. 1999) (period for filing for certiorari with the United States Supreme Court is considered in the finality determination under 28 U.S.C. § 2244(d)(1)(A)); U.S. S.Ct. Rule 13(1).

On February 26, 2013, Carter submitted an application for post-conviction relief to the Trial Court in which he asserted the following grounds for relief:[16] (1)(a) counsel provided ineffective assistance where he (i) failed to investigate errors in the search warrant, (ii) failed to file a pretrial motion to sever the offenses, (iii) failed to object that other crimes evidence was inadmissible, (iv) failed to object to the State's failure to lay a proper foundation for the admission of certain evidence, and (v) failed to file for disclosure of the confidential informant to preserve the right to confrontation; (b) he is entitled to an evidentiary hearing on the ineffective assistance of counsel claims; (2) his continued incarceration violates due process where he was denied effective assistance of counsel; and (3) the cumulative effect of the errors alleged violate the constitution.

After receiving a response from the State, the Trial Court denied the application on May 20, 2014, finding no merit in the claims.[17] The Louisiana Fifth Circuit denied Carter's related writ application finding no error in the Trial ...


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