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Lemoine v. Vannoy

United States District Court, E.D. Louisiana

March 15, 2018

JOSEPH LEMOINE
v.
DARREL VANNOY, WARDEN

         SECTION “I” (4)

          REPORT AND RECOMMENDATION

          KAREN WELLS ROBY CHIEF UNITED STATES 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, Joseph Lemoine (“Lemoine”), is a convicted inmate incarcerated in the Louisiana State Penitentiary in Angola, Louisiana.[2] 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.[3]Lemoine initially entered a plea of not guilty on January 28, 2010.[4]

         The record reflects that, in February of 2009, six-year-old B.Z. told family friends that Lemoine, her uncle, orally raped her.[5] 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.[6] 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.[7] The Court then sentenced Lemoine to serve life in prison at hard labor without benefit of parole, probation, or suspension of sentence.

         On 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.[8] Lemoine was granted leave to file a supplemental brief, but failed to do so.[9]

         On November 1, 2013, the Louisiana First Circuit affirmed Lemoine's conviction finding the sole issue to be meritless.[10] The Louisiana Supreme Court thereafter denied Lemoine's related writ application without stated reasons on April 25, 2014.[11]

         Lemoine's 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).

         On June 26, 2015, Lemoine signed and submitted an application for post-conviction relief to the Trial Court asserting the following grounds for relief:[12] (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.

         The Trial Court denied relief on September 21, 2015.[13] 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 meritless.

         On 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).[14] On December 18, 2015, the Court denied the application without stated reasons.[15]

         On May 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).[16] 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, reasons.

         II. Federal Habeas Petition

         On May 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:[17] (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.

         The State filed a response in opposition to the petition asserting that Lemoine's claims are meritless and that he is not entitled to relief.[18] In his reply to the State's response, Lemoine reasserted his arguments in support of his claims.[19]

         III. General Standards of Review

         The Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), Pub. L. No. 104-132, 110 Stat. 1214, [20] applies to this petition, which is deemed filed in this Court under the federal mailbox rule on May 15, 2017.[21] 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. § 2254(b), (c)).

         The 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 claims.[22]

         IV. Standards of a Merits Review

         The 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.

         A state 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).

         A state 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 (2004)).

         A state 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.

         The 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 (2002).

         Thus, 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).

         V. Suppression of the Confession (Claim No. 1)

         Lemoine 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.

         On June 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.[23] 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.[24]

         On 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).

         The 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 117.

         The 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).

         In 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)).

         Determining 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.

         Even if 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).

         In 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.

         On 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 this issue.

         VI. Sufficiency of the Evidence (Claim No. 2)

         Lemoine 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 law.

         On 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.

         Claims 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).

         The 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, ...


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