Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Simmons v. Vannoy

United States District Court, E.D. Louisiana

April 24, 2018

JERRY SIMMONS
v.
DARRYL VANNOY, WARDEN

         SECTION “I” (2)

          REPORT AND RECOMMENDATION

          JOSEPH C. WILKINSON, JR. 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 for disposition 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, I have determined that a federal evidentiary hearing is unnecessary. See 28 U.S.C. § 2254(e)(2).[1] For the following reasons, I recommend that the instant petition for habeas corpus relief be DENIED and DISMISSED WITH PREJUDICE.

         I. FACTUAL AND PROCEDURAL BACKGROUND

         The petitioner, Jerry Simmons, is incarcerated in the Louisiana State Penitentiary in Angola, Louisiana.[2] On October 13, 2010, Simmons was charged by bill of information in St. Charles Parish with resisting an officer with force or violence, attempted first degree murder of a police officer and disarming a police officer by use of force or threat of force.[3] The Louisiana Fifth Circuit Court of Appeal summarized the facts determined at trial in relevant part as follows:

At trial, Deputy Thomas Plaisance of the St. Charles Parish Sheriff's Office (“SCPSO”) testified that, on August 23, 2010, at about 10:40 p.m., he stopped a driver on River Road in New Sarpy for speeding. After the driver pulled his truck into the parking lot of the Friendly Quick Stop at the corner of Clement and River Road, Officer Plaisance observed a large pit bull terrier, untethered, in the bed of the truck. As Deputy Plaisance exited his police unit, the dog barked and lunged at him. Deputy Plaisance instructed the driver to restrain the dog so the driver put the dog in the cab of the truck. Unfortunately, Deputy Plaisance was unaware that the truck's passenger window was open.
As Deputy Plaisance observed the driver, he suspected that the driver had been drinking alcohol. When asked, the driver admitted that he had consumed two to three beers that night but refused to submit to a field sobriety test.
When Deputy Plaisance instructed the driver to place his hands behind his back for arrest, he initially hesitated then turned as if to run away. Deputy Plaisance drew and activated his Taser then again ordered the driver to place his hands behind his back and instructed him to lie on the ground. Eventually, the driver, identified as Jerry Simmons, defendant-herein, complied.
As defendant lay on the ground, Deputy Plaisance succeeded in getting the handcuff on defendant's right wrist but, as Deputy Plaisance attempted to handcuff defendant's left wrist, defendant rolled onto his back and struck Deputy Plaisance with his fist. As defendant punched Deputy Plaisance, the pit bull jumped out of the truck and bit Deputy Plaisance on the head and on the side. When defendant saw his dog biting Deputy Plaisance, defendant encouraged the dog, saying “Kill him! Get him! Bite him!” Deputy Plaisance, who was kneeling, drew his gun and fired at the dog, which enraged defendant.
At this point, Deputy Plaisance had his attention on the dog, which he felt was the greater threat. When Deputy Plaisance attempted to holster his sidearm, he could not because he had forgotten to “decock it.” Defendant, who had moved behind Deputy Plaisance, immediately attempted to remove the weapon from the holster. Deputy Plaisance, who was still kneeling, realized that he would lose control of his sidearm and released the magazine from the weapon, which left only one round of ammunition in the gun. Defendant did gain control of Deputy Plaisance's sidearm but dropped it during the struggle.
As the two men struggled, defendant knocked Deputy Plaisance to the ground, straddled his torso, and struck him with his fists in the face and jaw. Defendant also repeatedly lifted Deputy Plaisance's head and slammed it into the ground, which caused lacerations on his scalp. Additionally, defendant bit Deputy Plaisance's first finger, causing a deep laceration.
During this incident, James Wilcox, his wife, three children, and his friend, Travis Credeur, were standing outside their houses across the street from the Friendly Quick Stop. James Wilcox testified that, when Deputy Plaisance and defendant began speaking loudly, the dog jumped out of the truck and attacked Deputy Plaisance. Mr. Wilcox testified that, after defendant started beating Deputy Plaisance's head into the ground, he and his friend, Pete Massengale, approached to help the officer. According to Mr. Massengale, he thought that if he failed to stop defendant, defendant was going to kill Deputy Plaisance.
Mr. Massengale, who grabbed a wooden boat paddle from another bystander, approached Deputy Plaisance and warned defendant to stop. According to Deputy Plaisance, when Mr. Massengale asked, Deputy Plaisance told Mr. Massengale to hit defendant with the paddle. Mr. Massengale struck defendant in the shoulders but defendant ignored Mr. Massengale and continued to hit Deputy Plaisance. Mr. Massengale struck defendant again in the shoulders, to no avail. Finally, Mr. Massengale struck defendant forcefully, with the flat of the paddle, in the back of the head.
Defendant finally stopped hitting Deputy Plaisance and rolled to his side. After defendant released him, Deputy Plaisance tased defendant, which subdued him. Lieutenant Mike Folse arrived almost immediately, and he and Deputy Plaisance together were finally able to handcuff defendant. The dashboard camera Deputy Plaisance's vehicle recorded the incident. The video of the incident was introduced into evidence and played for the jury.
During the altercation, Deputy Plaisance received a laceration to his forehead, which required stitches; the dog bites on his scalp, which required stitches; the human bite on the right index finger, which required stitches and caused the most time out of work; and bruising and swelling to his face and jaw. For four days, he was unable to chew solid food.
Lieutenant George Breedy of the SCPSO testified that, on August 24, 2010, he was dispatched to the St. Charles Parish Hospital to investigate defendant for driving while intoxicated and obtained consent from defendant to draw blood. The Louisiana State Police Crime Lab tests showed that defendant's blood alcohol level was 0.20 grams percent, which was almost three times the legal limit of .08.

State v. Simmons, 136 So.3d 358, 362-64 (La.App. 5th Cir. 2014); State Record Volume 5 of 12, Louisiana Fifth Circuit Opinion, 13-KA-258, pages 3-6, February 26, 2014.

         Following an August 11, 2011, hearing, the state trial court granted Simmons's request to represent himself based on his desire to pursue a defense that his appointed counsel did not find viable.[4] The court also appointed Simmons's previously appointed attorney to act as standby counsel through trial and a second attorney to act only as additional pretrial standby counsel.

         Simmons was tried before a jury on September 7 and 8, 2011, and found guilty as charged on all counts.[5] On September 21, 2011, the state trial court denied Simmons's pro se motion for a new trial alleging ineffective assistance of counsel.[6] At an October 12, 2011 hearing, the state trial court denied Simmons's oral motion for post-verdict judgment of acquittal.[7] That same day, Simmons was sentenced to serve concurrent prison sentences of three years for resisting an officer, 22 years for attempted first degree murder of an officer and five years for disarming an officer.

         On November 15, 2011, the state trial court denied Simmons's motion to reconsider the sentence.[8] On March 28, 2012, the court denied Simmons's second motion for a new trial asserting ineffective assistance of counsel.[9]

         After hearings on April 25 and May 23, 2012, the state trial court adjudicated Simmons a “multiple offender.”[10] The court sentenced Simmons on May 29, 2012, as a sixth felony offender to serve concurrent prison sentences of 25 years for resisting an officer, 75 years for attempted first degree murder of an officer and 25 years for disarming an officer, each without benefit of parole, probation or suspension of sentence.[11]

         On direct appeal to the Louisiana Fifth Circuit, appointed counsel asserted a single claim that the state trial court erred in denying the motion to continue trial, which abridged Simmons's rights to present a defense, confrontation and a fair trial.[12] In his pro se supplemental brief, Simmons asserted twelve errors:[13] (1) The state trial court erred by denying his request for compulsory process. (2) The state trial court erred in its jury instruction regarding reasonable doubt. (3) The state trial court prevented him from providing the jury with all relevant facts to render a proper verdict. (4) The state trial court did not allow him to conduct a meaningful investigation after his request to represent himself was granted. (5) The state trial court erred in denying his motion to change his plea to not guilty by reason of insanity. (6) The state trial court did not allow him “full confrontation” of the State's witnesses. (7) His defense was prejudiced because his legs were shackled during trial. (8) A “prosecutor's remark” affected the jury's decision. (9) He was denied effective assistance of counsel before trial. (10) The state trial court erred in failing to appoint different counsel, which forced him to move to represent himself. (11) The state trial court abused its discretion in denying his pre-trial motion to recuse himself when the court denied him compulsory process, the right of confrontation, meaningful cross-examination and a fair trial. (12) He challenges the not guilty plea entered on advice of counsel.

         The Louisiana Fifth Circuit affirmed the conviction and sentence on February 26, 2014.[14] The court found no merit in the claim filed by counsel or in pro se claims one, three, four, six, eight and ten. The court held that Simmons failed to preserve for appeal pro se claims two, five, seven and eleven, and alternatively, that each of those claims were meritless. The court also held that Simmons failed to brief and therefore abandoned the twelfth pro se claim. The court declined to consider claim nine asserting ineffective assistance of counsel, deferring it to post-conviction review.

         The Louisiana Supreme Court denied Simmons's related writ application on October 31, 2014, without stated reasons.[15] His conviction became final ninety (90) days later on January 29, 2015, 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) (period for filling for certiorari with the United States Supreme Court is considered in the finality determination under 28 U.S.C. § 2244(d)(1)(A)), cert. denied, 529 U.S. 1099 (2000); U.S. Sup. Ct. Rule 13(1).

         On July 10, 2015, Simmons signed and submitted to the state trial court an application for post-conviction relief and accompanying memorandum in which he asserted the following grounds for relief:[16] (1) He received ineffective assistance of counsel when his appointed counsel (a) failed to conduct a prompt and independent investigation into the background of the officers to be called at trial and retrieve the records of Simmons's past traffic citations; (b) failed to subpoena and preserve meaningful evidence, including obtaining statements from hospital staff and hospital security; investigate his prior traffic citations and the background of the officers; pursue a psychiatric evaluation; obtain the hospital security video; and verify his claims of racial discrimination; (c) failed to question the deputy at the preliminary hearing as to whether he assaulted Simmons at the hospital and failed to subpoena hospital staff to discredit the officer; (d) failed to develop and pursue a not guilty plea and not guilty by reason of insanity to challenge his mental state during the offense; (e) gave unreasonable advice for Simmons to maintain his not guilty plea and not enter the insanity plea; (f) had an irreconcilable conflict with Simmons and caused a complete breakdown in communication, which affected Simmons's ability to raise the insanity defense; (g) misled and manipulated the court proceedings with his arguments at the preliminary hearing; and (h) failed to request to be removed from the case in light of his foregoing failures and conflicts with Simmons. (2) The state trial court erred when it failed to appoint a different, conflict-free attorney to assist him and erred further when the court (a) vouched for counsel's capabilities and (b) failed to address counsel's conflicts with Simmons. (3) The state trial court erred by denying Simmons the fundamental right to represent himself when the court failed to recognize the presumption against waiver of counsel. (4) The state trial court failed to inform Simmons of his fundamental rights during waiver of counsel. (5) The state trial court denied him the right to compulsory process. (6) The state trial court denied him the right to testify on his own behalf. (7) He was denied due process when the prosecutor relied on perjured testimony and he was required to wear shackles during trial and had police present in the courtroom. (8) The state trial court erred when it violated Simmons's confrontation rights during cross-examination. (9) He was adjudicated by a biased judge who denied the motion for his own recusal after denying Simmons the opportunity to change his guilty plea. (10) The state trial court erred in denying Simmons's request to change his plea and for a continuance, ruled on his mental state during the offense and denied Simmons the right to present a defense. (11) The state trial court violated Simmons's right to a jury trial on his mental state. (12) The trial court erred in instructing the jury.

         On August 5, 2015, the state trial court ordered the State to respond to Simmons's claims one, six and nine. The court declined to consider Simmons's claims two, three, four, five, seven, eight and ten, finding that these claims had been fully resolved on direct appeal, citing La. Code Crim. P. art. 930.4.[17] The court also declined to consider Simmons's claims eleven and twelve for his failure to provide grounds to support the claims, citing La. Code Crim. P. art. 926 and 930.3.

         After additional briefing, the state trial court held an evidentiary hearing on November 3, 2015.[18] At the conclusion of the hearing, the court entered oral reasons barring relief on claim number nine (judicial bias) and reiterating the bar to claim number four (waiver of right to counsel), finding that these issues had been resolved on direct appeal, citing La. Code Crim. P. art. 930.4.[19] As for Simmons's remaining ineffective assistance of counsel claim (number one), the court denied relief under Strickland v. Washington, 466 U.S. 688 (1984).[20]

         On December 4, 2015, Simmons sought review of that ruling in the Louisiana Fifth Circuit. Per order of the appellate court, on December 23, 2015, the state trial court issued a per curiam order restating its prior written and oral reasons for denial of Simmons's post-conviction application.[21] On April 26, 2016, the Louisiana Fifth Circuit denied Simmons's writ application, finding no error in the denial of relief on each claim for the reasons cited by the state trial court.[22] On September 22, 2017, the Louisiana Supreme Court denied Simmons's related writ application finding no error in the state trial court's ruling.[23]

         II. FEDERAL HABEAS PETITION

         On December 5, 2017, after correction of certain deficiencies, the clerk of this court filed Simmons's petition for federal habeas corpus relief in which he asserted the following two grounds for relief:[24] (1) He received ineffective assistance of counsel in that (a) his counsel had an inherently prejudicial conflict through a relationship with a key state witness and failed to call hospital staff and the officer to testify about his post-arrest assault by the same officer; (b) he had a conflict with his counsel over assertion of an insanity defense and counsel failed to request psychiatric evaluation; (c) his counsel failed to investigate his prior traffic citations history; and (d) he was constructively denied counsel when the court would not replace his ineffective appointed attorney, which forced him to move to represent himself. (2) He was adjudicated by a biased judge who (a) constructively denied him effective assistance of counsel; (b) denied him compulsory process; (c) denied him the rights of confrontation and cross-examination; (d) denied him the right to present a defense; (e) denied him the right to self-representation; and (f) denied him the right to a fair trial.

         The State filed an answer and memorandum in opposition to Simmons's petition asserting that Simmons is not entitled to federal habeas relief because he failed to prove ineffective assistance of counsel under Strickland and his claim of a biased tribunal was in procedural default.[25] Simmons filed a reply to the State's answer and memorandum urging that his claims be reviewed by this court on the merits despite any procedural grounds relied on by the state courts.[26]

III. GENERAL STANDARDS OF REVIEW

         The Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), Pub. L. No. 104-132, 110 Stat. 1214, comprehensively revised federal habeas corpus legislation, including 28 U.S.C. § 2254. The AEDPA went into effect on April 24, 1996[27] and applies to habeas petitions filed after that date. Flanagan v. Johnson, 154 F.3d 196, 198 (5th Cir. 1998) (citing Lindh v. Murphy, 521 U.S. 320 (1997)). The AEDPA therefore applies to Simmons's petition, which, for reasons discussed below, is deemed filed in a federal court on November 6, 2017.[28] The threshold questions in habeas review under the amended statute are whether the petition is timely and whether petitioner's claims were adjudicated on the merits in state court; i.e., the petitioner must have exhausted state court remedies and must not be in “procedural default” on a claim. Nobles v. Johnson, 127 F.3d 409, 419-20 (5th Cir. 1997) (citing 28 U.S.C. § 2254(b), (c)).

         The State concedes that Simmons's federal petition was timely filed and that he exhausted state court review of his claims. However, as asserted by the State, Simmons's claim of a biased state trial judge is in procedural default and should be dismissed for the following reasons.

         IV. PROCEDURAL DEFAULT (CLAIM NO. 2)

         In his federal habeas petition, Simmons asserts that the state trial judge erred when he ruled on the motion seeking his own recusal since his bias was demonstrated by constructive denial of effective assistance of counsel, his confrontation rights, meaningful cross-examination, right to present a defense, right to self-representation and right to a fair trial. Simmons moved pretrial to recuse the trial judge on grounds that the judge failed to replace his appointed counsel, knowing that the attorney would not pursue an insanity defense.[29] At a September 6, 2011, hearing, the state trial court denied the motion finding it a baseless delay tactic.[30]

         On direct appeal, Simmons asserted that the state trial court abused its discretion in denying the pre-trial motion to recuse when the court had denied him compulsory process, the right of confrontation, meaningful cross-examination and a fair trial. The Louisiana Fifth Circuit declined to consider the claim, finding that it raised different grounds for recusal than those asserted in the original motion in the state trial court. The court cited Louisiana case law that “limited [an] appeal to those grounds articulated at trial, and a new basis for objection may not be raised for the first time on appeal. This issue is not properly before this Court on appeal.” State v. Simmons, 136 So.3d at 372 (citing State v. Jackson, 450 So.2d 621 (La. 1984); State v. Alvarez, 71 So.3d 1079, 1085 (La.App. 5th Cir. 2011)); Sate Record Volume 5 of 12, Louisiana Fifth Circuit Opinion, 13-KA-258, page 21, February 26, 2014. The Louisiana Supreme Court denied the related writ application without stated reasons.

         Simmons later asserted in his state court application for post-conviction relief that he was adjudicated by a biased judge when the state trial judge ruled to deny the motion for his own recusal. Following a post-conviction evidentiary hearing, the state trial court found that denial of the motion to recuse was “grossly insufficient” to prove bias and the claim was barred from post-conviction review under La. Code Civ. P. art. 930.4, [31] because it was fully litigated on appeal. The Louisiana Fifth Circuit agreed with the state trial court's ruling, citing its direct appeal opinion and the contemporaneous objection rule under La. Code Crim. P. art. 841. The Louisiana Supreme Court also denied Simmons's related writ application finding no error.

         Generally, a federal court will not review a question of federal law decided by a state court if the decision of that state court rests on a state ground that is both independent of the federal claim and adequate to support that judgment. Coleman v. Thompson, 501 U.S. 722, 731-32 (1991); Glover v. Cain, 128 F.3d 900, 902 (5th Cir. 1997); Amos v. Scott, 61 F.3d 333, 338 & n.10 (5th Cir. 1995) (citing Harris v. Reed, 489 U.S. 255, 260, 262 (1989)). This “independent and adequate state law” doctrine applies to both substantive and procedural grounds and affects federal review of claims that are raised on either direct or habeas review. Amos, 61 F.3d at 338.

         Procedural default does not bar federal court review of a federal claim in a habeas petition unless the last state court to render a judgment in the case has clearly and expressly indicated that its judgment is independent of federal law and rests on a state procedural bar. Harris, 489 U.S. at 263; Glover, 128 F.3d at 902. The procedural bar also prevails over any alternative discussion of the merits of the claim by a state court. See Robinson v. Louisiana, 606 Fed.Appx. 199, 203-04 (5th Cir. 2015) (citing Woodfox v. Cain, 609 F.3d 774, 796 (5th Cir. 2010)). In this case, the procedural rule cited by the Louisiana Fifth Circuit on direct appeal bars review of Simmons's federal habeas claims.

         A. INDEPENDENT AND ADEQUATE

         For the state law procedural bar to prevent review by this federal habeas court, the bar must be independent and adequate. A procedural restriction is “independent” if the state court's judgment “clearly and expressly” indicates that it is independent of federal law and rests solely on a state procedural bar. Amos, 61 F.3d at 338. The United States Fifth Circuit has held that “[a] state court expressly and unambiguously bases its denial of relief on a state procedural ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.