United States District Court, E.D. Louisiana
REPORT AND RECOMMENDATION
WELLS ROBY CHIEF UNITED STATES MAGISTRATE JUDGE
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)
Factual and Procedural Background
petitioner, Joseph Lemoine (“Lemoine”), is a
convicted inmate incarcerated in the Louisiana State
Penitentiary in Angola, Louisiana. On November 23, 2009,
Lemoine was indicted by a Washington Parish Grand Jury for
the aggravated rape of his six year old niece,
B.Z.Lemoine initially entered a plea of not
guilty on January 28, 2010.
record reflects that, in February of 2009, six-year-old B.Z.
told family friends that Lemoine, her uncle, orally raped
Her mother reported the matter to the police. Washington
Parish Sheriff's Detective Anthony Stubbs arranged for
B.Z. to be interviewed by Jo Beth Rickels, a forensic
interviewer at the Children's Advocacy Center
(“CAC”). During the videotaped interview, B.Z.
told Rickels that Lemoine took her behind a barn at her
grandmother's house in Mount Hermon, Louisiana, and
“licked her vagina” and that she “had to
lick his penis.” Lemoine was tried before a jury on
March 12 through 14, 2012, and was found guilty as
charged. At a hearing held on April 2, 2012, the
Trial Court denied Lemoine's motions for new trial
(including suppression of the CAC interview) and post-verdict
judgment of acquittal. The Court then sentenced Lemoine to serve
life in prison at hard labor without benefit of parole,
probation, or suspension of sentence.
direct appeal to the Louisiana First Circuit Court of Appeal,
Lemoine's appointed counsel argued that it was error for
the Trial Court to deny the motion to suppress Lemoine's
pre-arrest confession made while he was under the influence
of alcohol. Lemoine was granted leave to file a
supplemental brief, but failed to do so.
November 1, 2013, the Louisiana First Circuit affirmed
Lemoine's conviction finding the sole issue to be
meritless. The Louisiana Supreme Court thereafter
denied Lemoine's related writ application without stated
reasons on April 25, 2014.
conviction was final under federal law ninety (90) days
later, on July 24, 2014, 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) (time for
filing for certiorari with the U.S. Supreme Court is included
in the finality determination under 28 U.S.C. §
2244(d)(1)(A)); U.S. Sup. Ct. Rule 13(1).
26, 2015, Lemoine signed and submitted an application for
post-conviction relief to the Trial Court asserting the
following grounds for relief: (1) he was denied full review
on appeal when the court reporter failed to transcribe
sidebar conferences held during trial; (2) the evidence was
insufficient to support the verdict; (3) he was denied
effective assistance of counsel when his first appointed
counsel failed to investigate the accuracy of the
victim's description of a sore on his genitalia; (4) the
state relied on the testimony of an unsubstantiated expert to
overcome the factually insufficiency; (5) he was denied due
process by the State's intentional misconduct during
closing arguments; and (6) the cumulative effect of the
errors denied him a fair trial.
Trial Court denied relief on September 21,
2015. The Court held that Lemoine's claims
were procedurally barred from post-conviction review for the
inexcusable failure to assert the claims on direct appeal.
See La. Code Crim. P. art. 930.4(C). Alternatively,
the Court found that the claims asserted by Lemoine were
October 15, 2015, Lemoine sought review of this ruling in the
Louisiana First Circuit only as to five of his claims
(numbers two through six in the post-conviction
application). On December 18, 2015, the Court denied
the application without stated reasons.
1, 2017, the Louisiana Supreme Court denied Lemoine's
subsequent writ application in which he asserted only four of
his post-conviction claims (numbers two through five in the
post-conviction application). The Court held that Lemoine
failed to establish ineffective assistance of counsel under
Strickland v. Washington, 466 U.S. 668 (1984), and
failed to satisfy his burden of proof as to the others,
adopting the state trial court's September 21, 2015,
Federal Habeas Petition
15, 2017, the clerk of this Court filed Lemoine's
petition for federal habeas corpus relief in which he
asserted the following grounds for relief: (1) the state
trial court erred in denying the motion to suppress
petitioner's confession; (2) the State failed to present
sufficient evidence to support the verdict; (3) he received
ineffective assistance of counsel when his first counsel
failed to investigate the victim's description of a sore
on his genitalia; (4) the State presented improper
“expert” testimony; and (5) the State engaged in
prosecutorial misconduct during rebuttal closing argument.
State filed a response in opposition to the petition
asserting that Lemoine's claims are meritless and that he
is not entitled to relief. In his reply to the
State's response, Lemoine reasserted his arguments in
support of his claims.
General Standards of Review
Antiterrorism and Effective Death Penalty Act of 1996
(“AEDPA”), Pub. L. No. 104-132, 110 Stat. 1214,
applies to this petition, which is deemed filed in this Court
under the federal mailbox rule on May 15, 2017. The threshold
questions on habeas review under the amended statute are
whether the petition is timely and whether the claim raised
by the petitioner was adjudicated on the merits in state
court; i.e., the petitioner must have exhausted
state court remedies and the claims must not be in
“procedural default.” Nobles v. Johnson,
127 F.3d 409, 419-20 (5th Cir. 1997) (citing 28 U.S.C. §
State does not assert and the record does not establish these
defenses apply to Lemoine's petition. The Court,
therefore, will address the substance of Lemoine's
Standards of a Merits Review
AEDPA standard of review is governed by § 2254(d) and
the Supreme Court's decision in Williams v.
Taylor, 529 U.S. 362 (2000). It provides different
standards for questions of fact, questions of law, and mixed
questions of fact and law.
court's determinations of questions of fact are presumed
correct and the Court must give deference to the state court
findings unless they were based on an unreasonable
determination of the facts in light of the evidence presented
in the state court proceeding. 28 U.S.C. § 2254(d)(2)
(2006); see Hill v. Johnson, 210 F.3d 481, 485 (5th
Cir. 2000), cert. denied, 532 U.S. 1039 (2001). The
amended statute also codifies the “presumption of
correctness” that attaches to state court findings of
fact and the “clear and convincing evidence”
burden placed on a petitioner who attempts to overcome that
presumption. 28 U.S.C. § 2254(e)(1) (2006).
court's determination of questions of law and mixed
questions of law and fact are reviewed under §
2254(d)(1), as amended by the AEDPA. The standard provides
that deference be given to the state court's decision
unless the decision is “contrary to or involves an
unreasonable application of clearly established federal
law” as determined by the United States Supreme Court.
Hill, 210 F.3d at 485. The “critical
point” in determining the Supreme Court rule to be
applied “is that relief is available under §
2254(d)(1)'s unreasonable-application clause if, and only
if, it is so obvious that a clearly established rule applies
to a given set of facts that there could be no
‘fairminded disagreement' on the question.”
White v. Woodall, __ U.S. __, 134 S.Ct. 1697,
1706-07 (2014) (citing Harrington v. Richter, 562
U.S. 86, 103 (2011)). “Thus, ‘if a habeas court
must extend a rationale before it can apply to the facts at
hand, ' then by definition the rationale was not
‘clearly established at the time of the state-court
decision.'” White, 134 S.Ct. at 1706
(quoting Yarborough v. Alvarado, 541 U.S. 652, 666
court's decision can be “contrary to” federal
law if: (1) the state court arrives at a conclusion opposite
to that reached by the Supreme Court on a question of law; or
(2) the state court decides a case differently than the
Supreme Court has on a set of materially indistinguishable
facts. Williams, 529 U.S. at 405-06, 412-13;
Penry v. Johnson, 532 U.S. 782, 792-93 (2001);
Hill, 210 F.3d at 485. A state court's decision
can involve an “unreasonable application” of
federal law if it correctly identifies the governing rule but
then applies it unreasonably to the facts. White,
134 S.Ct. at 1706-07; Williams, 529 U.S. at 406-08,
413; Penry, 532 U.S. at 792.
Supreme Court in Williams did not specifically
define “unreasonable” in the context of decisions
involving unreasonable applications of federal law. See
Williams, 529 U.S. at 410. The Court, however, noted
that an unreasonable application of federal law is different
from an incorrect application of federal law. Id.
“‘[A] federal habeas court may not issue the writ
simply because that court concludes in its independent
judgment that the state-court decision applied [a Supreme
Court case] incorrectly.'” Price v.
Vincent, 538 U.S. 634, 641 (2003) (quoting Woodford
v. Visciotti, 537 U.S. 19, 24-25 (2002)) (brackets in
original); Bell v. Cone, 535 U.S. 685, 698-99
under the “unreasonable application”
determination, the Court need not determine whether the state
court's reasoning is sound, rather “the only
question for a federal habeas court is whether the state
court's determination is objectively unreasonable.”
Neal v. Puckett, 286 F.3d 230, 246 (5th Cir. 2002).
The burden is on the petitioner to show that the state court
applied the precedent to the facts of his case in an
objectively unreasonable manner. Price, 538 U.S. At
641 (quoting Woodford, 537 U.S. at 24-25);
Wright v. Quarterman, 470 F.3d 581, 585 (5th Cir.
2006). In addition, review under § 2254(d)(1) is limited
to the record before the state court that adjudicated the
claim on the merits. Cullen v. Pinholster, 563 U.S.
170, 181 (2011).
Suppression of the Confession (Claim No. 1)
alleges that the state trial court erred when it denied the
defense's motion to suppress his inculpatory statement
made to police while he was intoxicated. The State contends
that Lemoine is not entitled to relief because the state
courts' denial of relief was not contrary to or an
unreasonable application of federal law.
4, 2010, Lemoine's original appointed counsel filed a
motion to suppress his statements made to police offering no
specific reasons therefor. The Trial Court held an
evidentiary hearing on the motion on March 12, 2012, prior to
trial, at which time Lemoine was represented by different
appointed counsel. The Court heard testimony from the
investigating officer, Detective Anthony Stubbs, as well as
Lemoine related to the two statements made by Lemoine on
February 12, 2009, and February 24, 2009. Detective Stubbs
testified that Lemoine did not appear to be intoxicated at
either interview, nor did he smell of alcohol during the
second interview (during which Lemoine claimed he had been
drinking heavily before he arrived). He recalled that Lemoine
claimed during the interview that he believed himself to be
an alcoholic, but he did not appear intoxicated at that time,
nor did he slur his speech. Lemoine testified at the hearing
that he drank prior to both interviews, but more heavily
before the second interview. He also conceded that he signed
the waiver of rights forms, although he claimed not to
specifically remember what was read to him. He also conceded
that he was aware of what he was accused of and was being
questioned about, namely the aggravated rape or sexual
assault of his niece. He further testified that he knew what
he was saying during the second interview. Following the
hearing, the Trial Court denied the motion citing no proof
that Lemoine was impaired in a manner that would have
rendered his statements involuntary.
direct appeal, the Louisiana First Circuit reviewed the
testimony from the hearing and trial, where Lemoine again
testified about his condition before and during both
interviews. In doing so, the Court resolved, as did the trial
court, that Lemoine was not so intoxicated to have impaired
his comprehension of the his acts and the consequences of his
statements, and that he was advised of his rights, knowingly
and intelligently waived those rights, and was not coerced by
the officers into giving his statements. This was the last
reasoned state court opinion on the issue. See Ylst v.
Nunnemaker, 501 U.S. 797, 802 (1991).
admissibility of a confession is a mixed question of law and
fact. Miller v. Fenton, 474 U.S. 104, 112 (1985);
ShisInday v. Quarterman, 511 F.3d 514, 522 (5th Cir.
2007) (citing Miller, 474 U.S. at 112). A federal
court on habeas review must respect the state court's
determination of voluntariness as long as it was not
“contrary to, or involved an unreasonable application
of, clearly established Federal law, as determined by the
Supreme Court.” 28 U.S.C. § 2254(d)(1); Barnes
v. Johnson, 160 F.3d 218, 222 (5th Cir. 1998). In doing
so, a federal habeas court must afford a presumption of
correctness to state courts' findings of fact if they are
fairly supported by the record. Miller, 474 U.S. at
Supreme Court recognizes two inquiries to determine whether
an accused has voluntarily and knowingly waived his Fifth
Amendment privilege against self-incrimination. Moran v.
Burbine, 475 U.S. 412, 421 (1986); Soffar v.
Cockrell, 300 F.3d 588, 592 (5th Cir. 2002). First,
waiver of the right must be voluntary and not the product of
intimidation, coercion or deception. Moran, 475 U.S.
at 421. Second, the waiver or relinquishment must be made
with full awareness of the nature of the right being waived.
Id. In making these inquiries, the court must
consider the “totality of all the surrounding
circumstances - both the characteristics of the accused and
the details of the interrogation.” Schneckloth v.
Bustamonte, 412 U.S. 218, 226 (1973).
assessing voluntariness, “trickery or deceit is only
prohibited to the extent it deprives the suspect ‘of
knowledge essential to his ability to understand the nature
of his rights and the consequences of abandoning
them.'” Soffar, 300 F.3d at 596 (quoting
Moran, 475 U.S. at 424). Therefore, a finding of
coercive police conduct is a necessary prerequisite to a
conclusion that a confession was involuntary, and the
defendant must establish a causal link between the coercive
conduct and the confession. Carter v. Johnson, 131
F.3d 452, 462 (5th Cir. 1997) (citing Colorado v.
Connelly, 479 U.S. 157, 163-67 (1986)).
whether officers engaged in coercive tactics to elicit a
confession is a question of fact, and the state court's
factual findings are entitled to deference when supported by
the record. Pemberton v. Collins, 991 F.2d 1218,
1225 (5th Cir. 1993); Self v. Collins, 973 F.2d
1198, 1204 (5th Cir. 1992); see also,
Miller, 474 U.S. at 112 (noting that subsidiary
questions such as whether the police engaged in coercive
tactics are afforded the presumption of correctness). Thus,
federal judges are to respect credibility determinations made
by the state court trier of fact. Pemberton, 991
F.2d at 1225 (citing Sumner v. Mata, 455 U.S. 591,
597 (1982)). However, if the underlying facts as determined
by the state court indicate the presence of some coercive
tactic, the impact that factor had on the voluntariness of
the confession is a matter for independent federal
determination and is ultimately a legal determination.
Miller, 474 U.S. at 117; ShisInday, 511
F.3d at 522.
the confession is deemed involuntary under these standards,
the Supreme Court has held that the admission of an
involuntary confession is a trial error subject to harmless
error analysis. Arizona v. Fulminante, 499 U.S. 279,
309-10 (1991). Under these standards, to grant federal habeas
relief, the trial error must have a substantial and injurious
effect or influence in determining the verdict. Brecht v.
Abrahamson, 507 U.S. 619, 637 (1993). Therefore, even if
this court were to find that petitioner's Fifth Amendment
rights were violated, the Court would also consider whether
use of the confession at trial was harmless in determining
the verdict. Hopkins v. Cockrell, 325 F.3d 579, 583
(5th Cir. 2003).
Lemoine's case, consistent with Jackson v.
Denno, 378 U.S. 368 (1964), the state trial court
conducted a full evidentiary hearing on the motion to
suppress the confession and the admissibility of the
inculpatory statement recorded by the officers. The state
trial court received testimony from one of the officers and
Lemoine, as well as evidence, including the signed waiver of
rights forms. Assessing this evidence and the totality of the
circumstances surrounding his statements, the state courts
concluded that there were no facts to support Lemoine's
contention that his statements were coerced or that he was
intoxicated in a manner to render his statements involuntary.
federal habeas review, this court must presume that the
factual determinations made by the state courts were correct,
including the finding that Lemoine was properly read his
rights, waived those rights before he was questioned, and
voluntarily made the statements at issue now. Lemoine has not
established that the denial of relief on this issue was
contrary to, or an unreasonable application of, Supreme Court
law. He has pointed to nothing in the record, and the Court
can find nothing, to establish that he was impaired when he
waived his rights or that there was unconstitutional deceit
or coercion by the police which led to his voluntary and
inculpatory statement. Lemoine is not entitled to relief on
Sufficiency of the Evidence (Claim No. 2)
claims that the State failed to present sufficient evidence
to support the verdict because the State failed to produce
any physical evidence of his guilt. He further argues that
the victim's testimony was not corroborated by any
evidence. The State contends that the denial of relief was
not contrary to or an unreasonable application of federal
post-conviction review of this issue, the Trial Court denied
relief noting that the testimony of the victim was sufficient
to establish that there had been anal, oral, and vaginal
sexual intercourse with the minor child under the age of 13.
These findings were incorporated by reference in the
Louisiana Supreme Court's opinion denying relief on
Lemoine's subsequent writ application. See Ylst,
501 U.S. at 802.
of insufficient evidence present a mixed question of law and
fact. Davila v. Davis, 650 F. App'x 860, 866
(5th Cir. 2016); Maes v. Thomas, 46 F.3d 979, 988
(10th Cir. 1995). The Court must therefore give deference to
the state courts' findings unless the decision was
contrary to, or involved an unreasonable application of
Supreme Court law. Miller v. Johnson, 200 F.3d 274,
281 (5th Cir. 2000).
appropriate standard for determining the sufficiency of
evidence is that set forth in Jackson v. Virginia,
443 U.S. 307 (1979), which requires a court to determine
whether, after viewing the record and the evidence in the
light most favorable to the prosecution, a rational trier of
fact could have found the essential elements of the crime
proven beyond a reasonable doubt. Jackson, 443 U.S.
at 319; Perez v. Cain, 529 F.3d 588, 594 (5th Cir.
2008); Williams v. Cain, ...