United States District Court, W.D. Louisiana, Lafayette Division
BRANDON SCOTT LAVERGNE D.O.C. # 424229
N. BURL CAIN
REPORT AND RECOMMENDATION
KATHLEEN KAY, UNITED STATES MAGISTRATE JUDGE
the court is a petition for writ of habeas corpus and final
amended memorandum in support thereof [docs. 1, 46] filed by
Brandon Scott Lavergne (“petitioner”), who is
represented by counsel in this matter. The petitioner is an
inmate in the custody of the Louisiana Department of Public
Safety and Corrections and is currently incarcerated at the
Louisiana State Penitentiary at Angola, Louisiana. N. Burl
Cain (“respondent”), former warden at Angola,
opposes the petition. Doc. 67. The petitioner has adopted his
reply to a previously-filed answer as his final reply. Docs.
82, 83. Accordingly, the matter is now ripe for review.
matter is referred to the undersigned for review, report, and
recommendation in accordance with 28 U.S.C. § 636 and
the standing orders of the court. For the following reasons
IT IS RECOMMEDED that the petition be
DENIED and DISMISSED WITH
petitioner was charged by bill of indictment on July 18,
2012, with two counts of first degree murder in the Fifteenth
Judicial District Court, Lafayette Parish, Louisiana. Doc.
80, att. 1, p. 82. The first count related to the murder of
Lisa Pate on or about July 3, 1999, and the second to the
murder of Michaela Shunick on or about May 19, 2012.
Id. On August 17, 2012, he appeared with counsel at
a change of plea hearing. Id. at 16-17; doc. 80, pp.
82-84. At this hearing he presented no challenge to the
accuracy of facts offered by the state concerning both
murders. Doc. 80, pp. 70-75 (Pate) and 75-83 (Shunick).
terms of the plea arrangement, in which the petitioner had
agreed to assist the state with certain tasks, the state had
agreed not to seek the death penalty, and the petitioner
consented to sentences of life imprisonment without parole
and waived his right to a sentencing hearing, were entered
into the record. Id. at 83-88. The court then
accepted the petitioner's guilty pleas as to both counts
and imposed two concurrent sentences of life imprisonment
without benefit of probation, parole, or suspension of
sentence. Id. at 88.
State Collateral Review
petitioner did not file a direct appeal and instead began
seeking collateral review through a pro se application for
post-conviction relief, filed in the state district court on
December 18, 2012, with a supplemental memorandum filed on
January 2, 2013. See doc. 80, att. 1, pp. 3-5
(original application); doc. 80, pp. 23-33 (supplemental
memorandum). This application was rejected by the court as
improperly filed. Doc. 80, pp. 34-35. The petitioner then
filed an application for post-conviction relief, received in
the trial court on or about February 7, 2013, and denied by
the state district court with written reasons. See
doc. 25, att. 2, pp. 7-23; doc. 79, pp. 57-66. In its ruling
the state district court found that he had raised claims
relating to the court's jurisdiction, the voluntariness
of his plea, the Freedom of Information Act, and ineffective
assistance of counsel. Doc. 79, pp. 57-58. However,
petitioner maintains that he also raised a claim of excessive
sentence within his claim challenging the voluntariness of
his plea. See doc. 25, att. 2, pp. 18-20.
petitioner sought review in the Louisiana Third Circuit Court
of Appeal twice, under case number 13-KH-488 and 13-KH-695.
The Third Circuit denied writs on 13-KH-488 on May 17, 2013,
“on the showing made” due to the petitioner's
failure to include necessary documentation, and on 13-KH-695
on June 18, 2013, finding no error to the trial court's
ruling. Doc. 1, att. 2, p. 34; doc. 25, att. 3, p. 5. The
petitioner then sought review under both case numbers in the
Louisiana Supreme Court. That court issued the following
ruling as to both case numbers on September 12, 2014:
“Denied. Repetitive. Cf. La.C.Cr.P. art.
930.4(D).” Doc. 25, att. 4, p. 12; State ex rel.
Lavergne v. State, 147 So.3d 702 (La. 2014). He sought
reconsideration, which the court denied on October 31, 2014.
State ex rel. Lavergne v. State, 152 So.3d 143 (La.
February 11, 2015, while the instant petition was already
pending, the petitioner filed a “supplemental”
application for post-conviction relief in the state district
court. Doc. 69, pp. 88- 100; doc. 70, pp. 1-27. There he made
several allegations of ineffective assistance of counsel and
prosecutorial misconduct, including that the plea deal had
subjected him to a “cruel and unusual sentence.”
Doc. 69, p. 100. The state district court stated that it
would not consider the other claims, as those were previously
raised and considered, but that it would consider the illegal
sentence claim. Id. at 82. It then held that the
petitioner was not entitled to relief on that claim because a
life sentence did not exceed the maximum allowed by law for
first degree murder. Id. The petitioner sought
review in the Third Circuit, which denied same and made the
following remarks with respect to his sentence claims:
Insofar as Relator asserts his sentences are illegal,
Relator's petition to the trial court did not contain any
argument cognizable as an actual illegal sentence claim. The
statutory delays for Relator's opportunities to seek
review of his sentences through appeal, motion to reconsider
sentences, and motion to amend sentences have lapsed.
Moreover, Relator received bargained-for sentences placed
into the record at the time of his plea; therefore, insofar
as Relator may actually be challenging his sentences instead
of the underlying convictions, Relator is precluded from so
Id. at 49-50. He then sought review in the Louisiana
Supreme Court, which denied same on October 30, 2015, and
noted that he had not shown that the district court erred
when it determined that his claims were repetitive. State
ex rel. Lavergne v. Lavergne, 178 So.3d 559 (La. 2015),
reconsideration denied, 184 So.3d 699 (La. 2016).
Federal Habeas Petition
instant petition was filed on September 18, 2014, while the
petitioner was proceeding pro se. See doc.
1, p. 6. He is now represented by counsel, and makes the
following claims in support of his request for habeas relief:
1. The sentences are cruel and unusual.
2. The guilty pleas are void because the Parish of Lafayette
exceeded its authority in indicting him with the murder of
Lisa Pate when none of the elements of the offense occurred
in that parish.
3. Trial counsel was ineffective for permitting the
petitioner to enter a plea to a grossly excessive sentence,
when trial counsel should have known that the parish and
trial court lacked jurisdiction and authority to ...