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McClain v. Vannoy

United States District Court, W.D. Louisiana, Lafayette Division

April 10, 2018

ERIC P. MCCLAIN LA. DOC#391003
v.
DARREL VANNOY

         SECTION P

          REPORT AND RECOMMENDATION

          CAROL B. WHITEHURST, UNITED STATES MAGISTRATE JUDGE

         Before the court is a petition for writ of habeas corpus (28 U.S.C. § 2254) filed on December 19, 2017, by pro se petitioner Eric P. McClain. McClain is an inmate in the custody of Louisiana&#3');">3');">3');">39;s Department of Public Safety and Corrections (LDOC). He is incarcerated at the Louisiana State Penitentiary, where he is serving a life sentence imposed following his December 2010 conviction in the Sixteenth Judicial District Court, St. Mary Parish.

         This matter has been referred to the undersigned for review, report, and recommendation in accordance with the provisions of 28 U.S.C. § 63');">3');">3');">36 and the standing orders of the court.

         I. STATEMENT OF THE CASE

         The petition, its accompanying memorandum, and exhibits establish that the defendant was charged by a bill of information with possession of a schedule II controlled dangerous substance (cocaine) with intent to distribute, a violation of La. R.S. 40:967(A)(1). He pled not guilty and, following a jury trial, he was found guilty as charged on December 6, 2010. Defendant filed counseled and pro se motions for new trial and post-verdict judgment of acquittal, which were denied by the trial court. The state then filed a habitual offender bill of information, alleging the defendant to be a third-felony habitual offender. He was ultimately adjudicated a third-felony habitual offender and sentenced to life imprisonment without benefit of parole, probation or suspension of sentence.

         He filed a direct appeal in the First Circuit Court of Appeal, raising the following four counseled assignments of error: (1) trial court erred in failing to suppress petitioner&#3');">3');">3');">39;s first statement; (2) trial court abused its discretion in failing to order a mistrial when the district attorney elicited testimony at trial regarding the trial court&#3');">3');">3');">39;s finding at the motion to suppress hearing that defendant&#3');">3');">3');">39;s statement was freely and voluntarily given; (3');">3');">3');">3) & (4) Louisiana Constitution that allows for non-unanimous jury verdicts violates the right to a jury trial and the right to equal protection of the laws guaranteed by the Sixth and Fourteenth Amendments [Rec. Doc. 1-4, pp. 1-29]; and the following four pro se assignments of error: (1) trial court erred in failing to suppress his statements; (2) trial court abused its discretion and violated due process by not viewing the two recorded confessions prior to ruling at the motion to suppress hearing; (3');">3');">3');">3) videotaped recordings of his two confessions were illegally redacted, prohibiting the jury from weighing the totality of the circumstances surrounding each statement; and (4) search warrant and application for the search warrant were based on fabrications and fraud constituting intentional misrepresentations to gain illegal entry into his residence [Rec. Doc. 1-4, pp. 3');">3');">3');">30-59].

         The First Circuit affirmed the conviction and sentence on January 7, 2013');">3');">3');">3. [Rec. Doc. 1-4, pp. 125-13');">3');">3');">37; see also State v. McClain, 2012-1755 (La.App. 1 Cir. 6/7/13');">3');">3');">3) 2013');">3');">3');">3 WL 24903');">3');">3');">364.] All issues were addressed on the merits, excluding pro se assignments two, three and four, which the appellate court held were not reviewable on appeal, as they were not raised in the trial court. Petitioner applied for writs in the Louisiana Supreme Court [Rec. Doc. 1-4, pp. 13');">3');">3');">38-158]; his application was denied on January 27, 2014 [Rec. Doc. 1-4, p. 159; see also State v. McClain, 2013');">3');">3');">3- 163');">3');">3');">37 (La. 1/27/14), 3');">3');">3');">31 So.3');">3');">3');">3d 53');">3');">3');">3');">13');">3');">3');">31 So.3');">3');">3');">3d 53');">3');">3');">3]. Petitioner sought writs in the United States Supreme Court on April 7, 2014. [Rec. Doc. 1-4, p. 160] His petition to the United States Supreme Court was denied on June 23');">3');">3');">3, 2014. McClain v. Louisiana, 13');">3');">3');">34 S.Ct. 2845 (2014).

         On May 15, 2014, petitioner filed an application for post-conviction relief, raising the following issues: (1) trial court erred in allowing the introduction of a DVD recorded statement without the proper foundation laid as required by law, and trial counsel was ineffective for failing to object to such an error; (2) a conflict between petitioner and his counsel before and during trial constitutes ineffective assistance of counsel; (3');">3');">3');">3) bill of information was defective; (4) trial court abused its discretion by not viewing the two recorded confessions prior to ruling at the motion to suppress hearing and trial counsel was ineffective for failing to object to such an error; (5) trial court abused its discretion regarding the videotaped recorded statements of petitioner&#3');">3');">3');">39;s confessions which were illegally redacted, prohibiting the jury to weight the totality of the circumstances surrounding each statement made, and trial counsel was ineffective for failing to object to such an error; (6) trial counsel was ineffective for failing to file a motion to quash the affidavit for search warrant; (7) petitioner was denied effective assistance of counsel when his counsel failed to request to be provided with the name of the confidential informant whose information was used to obtain the search warrant; and (8) defense counsel rendered ineffective assistance of counsel. [Rec. Doc. 1-3');">3');">3');">3, pp. 1-43');">3');">3');">3] On June 29, 2015, the State filed “Respondent&#3');">3');">3');">39;s Procedural Objections, Motion to Dismiss, Response, and Answer to Petitioner&#3');">3');">3');">39;s Application for Post-Conviction Relief, ” pursuant to which it objected, on procedural grounds, to petitioner&#3');">3');">3');">39;s claims 1, 3');">3');">3');">3, 4, 5 & 6, as the claims were not on the grounds listed for post-conviction relief in Article 93');">3');">3');">30.3');">3');">3');">3 of the Louisiana Code of Criminal Procedure, and addressed the merits of claims 2, 7 and 8. [Rec. Doc. 1-3');">3');">3');">3, pp. 44-48]

         The trial court denied petitioner&#3');">3');">3');">39;s application “on the merits and procedurally for claims 1, 3');">3');">3');">3, 4, 5 & 6, ” on July 8, 2015. [Rec. Doc. 1-3');">3');">3');">3, p. 72] On an unknown date, petitioner filed an application for supervisory writs in the First Circuit Court of Appeal, which was denied on March 7, 2016, under Docket Number 2015 KW 2008, “on the showing made.” [Rec. Doc. 1-3');">3');">3');">3, p. 145] The court noted that petitioner failed to include portions of the district court record that might support the claims in his application for post-conviction relief. He was instructed to file a new application with that court by May 6, 2016, as supplementation of that writ application would not be considered. Id. Petitioner presumably re-filed in the First Circuit, as a second application for supervisory writs was denied on June 17, 2016, under Docket Number 2016 KW 0489 [Rec. Doc. 1-3');">3');">3');">3, p. 146]. He filed a writ application in the Louisiana Supreme Court, which was denied on November 13');">3');">3');">3, 2017, under Docket Number 2016-KH-894. [Rec. Doc. 1-3');">3');">3');">3, pp. 147-148]

         The instant petition for writ of habeas corpus was filed on December 19, 2017. Petitioner raises the following claims: 1) trial court erred in failing to suppress petitioner&#3');">3');">3');">39;s first statement; (2) trial court abused its discretion in failing to order a mistrial when the district attorney elicited testimony at trial regarding the trial court&#3');">3');">3');">39;s finding at the motion to suppress hearing that defendant&#3');">3');">3');">39;s statement was freely and voluntarily given; (3');">3');">3');">3) trial court erred in allowing the introduction of a DVD recorded statement without the proper foundation laid as required by law, and trial counsel was ineffective for failing to object to such an error; (4) a conflict between petitioner and his counsel before and during trial constitutes ineffective assistance of counsel; (5) bill of information was defective; (6) trial court abused its discretion by not viewing the two recorded confessions prior to ruling at the motion to suppress hearing and trial counsel was ineffective for failing to object to such an error; (7) trial court abused its discretion regarding the videotaped recorded statements of petitioner&#3');">3');">3');">39;s confessions which were illegally redacted, prohibiting the jury to weight the totality of the circumstances surrounding each statement made, and trial counsel was ineffective for failing to object to such an error; (8) trial counsel was ineffective for failing to file a motion to quash the affidavit for search warrant; (9) petitioner was denied effective assistance of counsel when his counsel failed to request to be provided with the name of the confidential informant whose information was used to obtain the search warrant; and (10) defense counsel rendered ineffective assistance of counsel.

         II. LAW AND ANALYSIS

         A. Claims 1, 2, 4, 9 & 10

         Claims 1, 2, 4, 9 & 10 will be addressed in a separate ...


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