United States District Court, E.D. Louisiana
ORDER AND REASONS
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.
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.
AND PROCEDURAL HISTORY
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.
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
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
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.
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).
State Collateral Review
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.
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.
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).
Petition for Federal Habeas Corpus Relief
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
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
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
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
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.
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.
REPORT AND RECOMMENDATION
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.
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.