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Harris v. Vannoy

United States District Court, E.D. Louisiana

November 21, 2017

TERRY HARRIS
v.
DARRELL VANNOY

         SECTION “B” (2)

          ORDER AND REASONS

         Before the Court is Petitioner Terry Harris's petition pursuant to 28 U.S.C § 2254 for a writ of habeas corpus (Rec. Doc. 1) and Respondent Darrell Vannoy's opposition (Rec. Doc. 14). Additionally, in a Report and Recommendation, Magistrate Judge Wilkinson recommended that the petition be dismissed with prejudice. Rec. Doc. 16. Petitioner timely filed objections to the Report and Recommendation. Rec. Doc. 17.

         For the reasons enumerated below, it is ORDERED that the Magistrate Judge's Report and Recommendation is ADOPTED, the Petitioner's objections are OVERRULED, and the instant habeas corpus petition is DISMISSED WITH PREJUDICE.

         FACTS AND PROCEDURAL HISTORY

         Petitioner is incarcerated at the Louisiana State Penitentiary in Angola, Louisiana. On September 9, 2004, Petitioner was indicted by a Jefferson Parish grand jury and charged with aggravated rape of a juvenile male, M.B. St. Rec. Vol. 1 of 12, Grand Jury Return.

         A. State Trial

         Petitioner was tried before a jury and found guilty of forcible rape, a lesser offense than the charged crime. St. Rec. Vol. 1 of 12, Trial Minutes; Jury Verdict. Petitioner's motion in arrest of judgment and for a new trial was denied by the state trial court on January 7, 2010. St. Rec. Vol. 1 of 12, Motion in Arrest of Judgment and Alternatively Motion for New Trial. The court sentenced Petitioner to thirty-eight (38) years in prison without benefit of parole, probation, or suspension of sentence. St. Rec. Vol. 1 of 12, Sentencing Minutes.

         Petitioner also plead not guilty to the multiple offender bill on January 7, 2010. St. Rec. Vol. 1 of 12, Sentencing Minutes. The court then vacated the former sentence, and sentenced Petitioner as a multiple offender to seventy-six (76) years in prison without benefit of probation or suspension of sentence instead. St. Rec. Vol. 1 of 12, Pro Tunc Minute Entry.

         Petitioner directly appealed to the Louisiana Fifth Circuit, where his appointed counsel asserted that the trial court erred (1) when it denied the defense's motion to quash his indictment based on delayed prosecution beyond the period allowed by law, and (2) when it did not instruct the jury on the meaning of “acquittal” in connection with the admission of other crimes evidence. St. Rec. Vol. 9 of 12, Appeal Brief, 2011-KA-0253. Petitioner also filed a pro se supplemental brief where he asserted (1) that he was denied due process when he was not allowed to confront and cross-examine witnesses during the Prieur hearing on the other crimes evidence, and (2) that he was convicted without proof of guilt beyond a reasonable doubt. St. Rec. Vol. 9 of 12, Pro Se Supplemental Brief, 2011-KA-253.

         The Louisiana Fifth Circuit affirmed the conviction on December 28, 2011, finding all of Petitioner's claims meritless. State v. Harris, 83 So.3d 269 (La.App. 5 Cir. 12/28/11). The Louisiana Supreme Court denied Petitioner's related writ application on August 22, 2012 without stated reasons. State v. Harris, 97 So.3d 376 (La. 2012).

         B. State Collateral Review

         On March 11, 2013, Petitioner requested post-conviction relief from the state trial court, asserting the following grounds: (1) he was denied the right to a fair trial when the state trial court allowed a correctional officer from the parish jail where he was housed to sit on the jury; (2) he was denied a fair trial when the state trial court allowed pictures into the jury room during deliberations and his counsel failed to object; (3) his counsel was ineffective by failing to object to the pictures taken into the jury room; (4) he was denied a fair trial by the State's reliance on false testimony; (5) he was denied a fair trial when the state trial court denied defense counsel the opportunity to lay a foundation for impeachment evidence, and denied the request to wait for a detective to testify about inconsistent statements; (6) he was denied a fair trial when counsel failed to object to a modified Allen charge; and (7) his counsel was ineffective based on a conflict between counsel and Petitioner. St. Rec. Vol. 2 of 12, Application for Post-Conviction Relief.

         The state trial court denied relief as procedurally improper because Petitioner failed to specify the factual bases in support of his claims. St. Rec. Vol. 2 of 12, Trial Court Order. The Louisiana Fifth Circuit remanded the matter for further consideration, and the state trial court then found that Claims 1, 2, 4, and 5 were procedurally barred from review under Louisiana Code of Criminal Procedure articles 930.4(B) and/or (C). St. Rec. Vol. 2 of 12, Trial Court Order 3/26/14. The state trial court also found that Claims 3, 6, and 7 failed to establish ineffective assistance of counsel under Strickland v. Washington, 466 U.S. 668 (1984), and related state case law. St. Rec. Vol. 2 of 12, Trial Court Order 3/26/14.

         On May 21, 2015, the Louisiana Fifth Circuit denied Petitioner's writ application, citing the same reasons given by the state trial court. St. Rec. Vol 12 of 12, 5th Cir. Order, 15-KH-241, 5/21/15. The Louisiana Supreme Court denied Petitioner's writ application as meritless under Strickland, and as otherwise procedurally barred under Louisiana Code of Criminal Procedure Articles 930.2 and 930.4, with incorporated reference to the reasons given by the state trial court. State ex rel. Harris v. State, 193 So.3d 133 (La. 2016).

         C. Petition for Federal Habeas Corpus Relief

         Petitioner filed the instant petition for federal habeas corpus relief on June 17, 2016. Rec. Doc. 1. Petitioner's habeas allegations are as follows:

1) The state trial court erred when it denied Petitioner's motion to quash his indictment based on delayed commencement of trial after the period allowed by law;
2) The state trial court erred when it allowed the State to introduce testimony about a crime for which he was acquitted without instructing the jury on the meaning of “acquittal;”
3) The state trial court erred when it denied Petitioner's application for post-conviction relief because he did not have the trial record when he filed his application;
4) He was denied the right to a fair trial when the state trial court allowed a correctional officer from the parish jail where he was housed to sit on the jury;
5) He was denied a fair trial when the state court allowed pictures into jury room deliberations that were not related to the crime being tried and his counsel did not object;
6) He was denied effective counsel when (a) his trial counsel failed to object to pictures being taken into the jury room, and (b) his appellate counsel did not assert the issue on appeal;
7) (a)The State showed a witness evidence before trial so she could change her testimony and (b) relied on false testimony;
8) He was denied a fair trial when the state trial court denied him the right to present a defense;
9) (a) he was denied effective assistance of counsel when his counsel failed to object to an Allen charge, and (b) the state trial court erroneously told the jury during deliberations that the verdict had to be by a 10 to 2 vote;
10) His counsel was ineffective based on a conflict between counsel and Petitioner;
11) The evidence was insufficient because the victim stated at trial that the incident occurred on a date when Petitioner was in jail; and
12) He was denied effective assistance of counsel because (a) his trial counsel failed to call witnesses to prove Petitioner was in jail when the victim said the crime was committed, and (b) his appellate counsel failed to assert actual innocence and false testimony claims. Rec. Doc. 1.

         The State filed a response in opposition to the Petition, addressing the first ten claims. Rec. Doc. 14. The State argues that Petitioner's Claims 1, 3, and 10 failed to state a cognizable basis for federal habeas relief, Claims 4, 5, 7, 8, and 9(b) are in procedural default, and Claims 2, 6, and part of 9(a) are meritless. Rec. Doc. 14.

         MAGISTRATE'S REPORT AND RECOMMENDATION

         The Magistrate Judge addressed and dismissed each of Petitioner's claims. Rec. Doc. 16. Accordingly, the Magistrate Judge recommended that the petition be dismissed with prejudice. Rec. Doc. 16 at 1.

         PETITIONER'S OBJECTIONS

         Petitioner objects to the Magistrate's Report and Recommendation. Rec. Doc. 17. In his objection, Petitioner argues that the following grounds justify relief, most of which are restatements of the arguments in his petition: (1) Claims 4, 5, 7, 8, and 9 were not in procedural default; (2) the state trial court erred when it denied Petitioner's motion to quash his indictment; (3) the state trial court erred when it allowed the State to introduce evidence from a crime of which Petitioner was acquitted; (4) the state trial court erred when it denied Petitioner's application for post-conviction relief; (5) the State relied on false testimony in order to obtain Petitioner's conviction; (6) the evidence introduced at trial was insufficient to prove his guilt; and (7) Petitioner's trial and appellate counsel provided ineffective assistance of counsel. Rec. Doc. 17.

         STANDARD ...


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