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Smoot v. Vannoy

United States District Court, E.D. Louisiana

May 17, 2018

CODY SMOOT
v.
DARRELL VANNOY, WARDEN

         SECTION: “A” (3)

          REPORT AND RECOMMENDATION

          DANIEL E. KNOWLES, III UNITED STATES MAGISTRATE JUDGE

         This matter was referred to this United States Magistrate Judge for the purpose of conducting a hearing, including an evidentiary hearing, if necessary, and submission of proposed findings of fact 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 in the United States District Courts. Upon review of the record, the Court has determined that this matter can be disposed of without an evidentiary hearing. See 28 U.S.C. § 2254(e)(2). Therefore, for all of the following reasons, IT IS RECOMMENDED that the petition be DISMISSED WITH PREJUDICE.

         Petitioner, Cody Smoot, is a state prisoner incarcerated at the Louisiana State Penitentiary, Angola, Louisiana. On August 25, 2011, Smoot was charged in the Parish of Jefferson for second degree murder.[1] Smoot was tried before a jury on January 23 and 24, 2013, and was found guilty as charged.[2] The court sentenced Smoot to life imprisonment at hard labor without the benefit of probation, parole or suspension of sentence.[3] Smoot's motion to reconsider sentence was denied.[4]

         Smoot filed a direct appeal to the Louisiana Fifth Circuit Court of Appeal alleging that the state district court erred in denying his motion reconsider sentence and in failing to allow him the right to present a defense.[5] The court denied petitioner's appeal on January 15, 2014.[6] The Louisiana Supreme Court denied Smoot's writ application without stated reasons on September 12, 2014.[7]

         On September 1, 2015, petitioner filed an application for post-conviction relief with the state district court in which he claimed: (1) ineffective assistance of counsel for failing to file a motion to suppress; and (2) ineffective assistance of counsel for failing to object to hearsay identification evidence.[8] The state district court denied petitioner's application on December 3, 2015, finding petitioner failed to show that his counsel acted deficiently or any resulting prejudice.[9] The Louisiana Fifth Circuit Court of Appeal denied petitioner's application for supervisory writ finding that petitioner failed to show prejudice as a result of his counsel's failure to file a motion to suppress and object to identification evidence.[10] The Louisiana Supreme Court denied petitioner's application for review finding he failed to show he received ineffective assistance of counsel under the standard of Strickland v. Washington, 466 U.S. 668 (1984), referencing the attached state district court's written reasons.[11]

         Petitioner thereafter filed the instant federal application seeking habeas corpus relief alleging the following claims: (1) excessive sentence; (2) the trial court denied him his right to present a defense; and (3) ineffective assistance of counsel in that counsel failed to (a) file a motion to suppress; and (b) object to hearsay testimony by Detective Goff.[12]

         The state does not challenge the timeliness of petitioner's application. The state argues that petitioner's claims relating to excessive sentence and ineffective assistance of counsel lack merit. The state argues that petitioner's claim regarding his right to present a defense is procedurally barred.[13] Petitioner filed a traverse.[14]

         I. Standards of Review

         The Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”) comprehensively overhauled federal habeas corpus legislation, including 28 U.S.C. § 2254. Amended subsections 2254(d)(1) and (2) contain revised standards of review for pure questions of fact, pure questions of law, and mixed questions of both. The amendments “modified a federal habeas court's role in reviewing state prisoner applications in order to prevent federal habeas ‘retrials' and to ensure that state-court convictions are given effect to the extent possible under law.” Bell v. Cone, 535 U.S. 685, 693 (2002).

         As to pure questions of fact, factual findings are presumed to be correct and a federal court will give deference to the state court's decision unless it “was 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); see also 28 U.S.C. § 2254(e)(1) (“In a proceeding instituted by an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State court, a determination of a factual issue made by a State court shall be presumed to be correct. The applicant shall have the burden of rebutting the presumption of correctness by clear and convincing evidence.”).

         As to pure questions of law and mixed questions of law and fact, a federal court must defer to the state court's decision on the merits of such a claim unless that decision “was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States.” 28 U.S.C. § 2254(d)(1). Courts have held that the “‘contrary to' and ‘unreasonable application' clauses [of § 2254(d)(1)] have independent meaning.” Bell, 535 U.S. at 694.

         Regarding the “contrary to” clause, the United States Fifth Circuit Court of Appeals has explained:

A state court decision is contrary to clearly established precedent if the state court applies a rule that contradicts the governing law set forth in the [United States] Supreme Court's cases. A state-court decision will also be contrary to clearly established precedent if the state court confronts a set of facts that are materially indistinguishable from a decision of the [United States] Supreme Court and nevertheless arrives at a result different from [United States] Supreme Court precedent.

Wooten v. Thaler, 598 F.3d 215, 218 (5th Cir. 2010) (internal quotation marks, ellipses, brackets, and footnotes omitted).

         Regarding the “unreasonable application” clause, the United States Supreme Court has held: “[A] state-court decision is an unreasonable application of our clearly established precedent if it correctly identifies the governing legal rule but applies that rule unreasonably to the facts of a particular prisoner's case.” White v. Woodall, 134 S.Ct. 1697, 1706 (2014). However, the Supreme Court cautioned:

Section 2254(d)(1) provides a remedy for instances in which a state court unreasonably applies this Court's precedent; it does not require state courts to extend that precedent or license federal courts to treat the failure to do so as error. 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. AEDPA's carefully constructed framework would be undermined if habeas courts introduced rules not clearly established under the guise of extensions to existing law.

Id. (citations and quotation marks omitted). Therefore, when the Supreme Court's “cases give no clear answer to the question presented, let alone one in [the petitioner's] favor, it cannot be said that the state court unreasonably applied clearly established Federal law.” Wright v. Van Patten, 552 U.S. 120, 126 (2008) (quotation marks and brackets omitted). The Supreme Court has also expressly cautioned that “an unreasonable application is different from an incorrect one.” Bell, 535 U.S. at 694. Accordingly, a state court's merely incorrect application of Supreme Court precedent simply does not warrant habeas relief. Puckett v. Epps, 641 F.3d 657, 663 (5th Cir. 2011) (“Importantly, ‘unreasonable' is not the same as ‘erroneous' or ‘incorrect'; an incorrect application of the law by a state court will nonetheless be affirmed if it is not simultaneously unreasonable.”).

         While the AEDPA standards of review are strict and narrow, they are purposely so. As the United States Supreme Court has held:

[E]ven a strong case for relief does not mean the state court's contrary conclusion was unreasonable.
If this standard is difficult to meet, that is because it was meant to be. As amended by AEDPA, § 2254(d) stops short of imposing a complete bar on federal court relitigation of claims already rejected in state proceedings. It preserves authority to issue the writ in cases where there is no possibility fairminded jurists could disagree that the state court's decision conflicts with this Court's precedents. It goes no farther. Section 2254(d) reflects the view that habeas corpus is a guard against extreme malfunctions in the state criminal justice systems, not a substitute for ordinary error correction through appeal. As a condition for obtaining habeas corpus from a federal court, a state prisoner must show that the state court's ruling on the claim being presented in federal court was so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement.

Harrington v. Richter, 562 U.S. 86, 102-03 (2011) (citations omitted; emphasis added); see also Renico v. Lett, 559 U.S. 766, 779 (2010) (“AEDPA prevents defendants - and federal courts - from using federal habeas corpus review as a vehicle to second-guess the reasonable decisions of state courts.”).

         The Supreme Court has expressly warned that although “some federal judges find [28 U.S.C. § 2254(d)] too confining, ” it is nevertheless clear that “all federal judges must obey” the law and apply the strictly deferential standards of review mandated therein. White, 134 S.Ct. at 1701.

         II. Facts

         On direct appeal, the Louisiana Fifth Circuit Court of Appeal summarized the facts of this case as follows:

Benny Ferrell and his brother Johnny, the victim in this case, had been homeless for most of their lives and were both users of crack cocaine. In March of 2011, Benny had taken up residence in a shed behind his nephew's house. However, Johnny was not allowed to stay there because he was a nuisance in the neighborhood, often begging for money.
In the early morning hours of March 29, 2011, Johnny appeared at his brother's shed with a companion. Johnny asked Benny if he could sell his boombox in order to get money to purchase crack cocaine. After Benny refused his brother's request, Johnny took the boombox from the shed and told Benny that his companion would give him a “dime rock” for it. Again, Benny refused to sell his boombox, and he put it back in the shed. Johnny's companion then began to walk off and told Johnny to “come on” in a loud, angry voice. Johnny and his companion left, and Benny returned to the shed to get some rest. Within a few minutes, Benny heard several gunshots in the area. Fearing that his brother was involved, he ran to the corner, but did not see anything. Benny returned to the shed and went to sleep.
At approximately 7:00 a.m. on March 29, 2011, Officer Paul Dupuis of the Jefferson Parish Sheriff's Office was on routine patrol when he was flagged down by Eddie Deamer, who informed him that a “man was down” farther up the street. Officer Dupuis continued up the street and observed a dead body on the ground near the sidewalk in front of an empty lot located just around the corner from Benny's shed. Officer Dupuis advised headquarters and secured the scene.
Detective Matthew Vazquez of the Jefferson Parish Sheriff's Office arrived on the scene and found five .40 caliber Winchester casings and a projectile fragment in the vicinity of the victim's body, as well as a projectile under the victim's body.1 In addition, he and Detective Rhonda Goff, the lead investigator, encountered Benny who, by this time, had arrived on the scene having been alerted that his brother had been shot. Benny, who was visibly upset about his brother's death, agreed to go to the detective bureau to give a statement to the police.
1 At trial, Dr. Susan Garcia, a forensic pathologist, testified that she performed an autopsy on the victim and determined that the manner of death was homicide and that the cause of death was multiple gunshot wounds. In addition, Deputy Jene Rauch, an expert in the field of firearm and tool mark examination, testified that the four projectiles recovered from the victim's body and the projectile recovered from under the victim's body were .40 caliber and were fired from the same weapon.
In connection with his statement, Benny described the person he last saw with his brother. A composite sketch was produced and distributed to the police districts. Detective Goff received leads concerning two different individuals, and she prepared two separate photographic lineups. When she presented these lineups to Benny, he advised her that the individual who was with his brother the morning of the shooting was not in the lineups. Thereafter, a fellow officer saw the sketch and commented that it looked like Cody Smoot. Detective Goff compiled another photographic lineup, which contained defendant's picture, and presented it to Benny on March 31, 2011. From this third photographic lineup, Benny positively identified defendant as his brother's companion in the early morning hours of March 29, 2011.
After this positive identification, Detective Goff obtained a search warrant for defendant's last known address, and on April 12, 2011, officers searched that residence. In addition, she obtained a search warrant for a white Pontiac Grand Prix, which was parked outside the residence at the time of the search. The vehicle was towed back to the detective's bureau and searched pursuant to the warrant.
Defendant was subsequently taken into custody and transported to the detective bureau for questioning. After being advised of his rights and executing a waiver of rights form, defendant gave a recorded statement. In his statement, defendant admitted ownership of some of the items found during execution of the search warrants, including the crack cocaine, the 9 mm round of ammunition, the .40 caliber rounds of ammunition, and a Glock magazine. He admitted that he intended to sell the crack, and he explained that the Grand Prix belonged to his sister, but that he had been using it for the past three or four days.
Defendant further explained that the victim was his parran, who “smoked a lot of crack” and that he had last seen him several months earlier on January 21, 2011. He said he learned of the victim's death around 7:00 a.m. on March 29, 2011, while at his grandfather's house on Lloyd Price Avenue. He explained he was asleep with his girlfriend Joanna Miller when he was awakened by a phone call from his cousin, Rynell Allen, informing him that the victim had been killed and to watch the news.
The detectives subsequently investigated Rynell Allen, but were unable to locate any such person. The detectives also spoke with Joanna Miller, who informed them that she was working at a McDonald's restaurant near Zephyr Field on Airline Drive that evening, that she left work around 1:00 a.m. on March 29, 2011, and that she met defendant at his grandfather's house, where they spent the night. However, Detective Goff spoke with the manager of that McDonald's, who informed the detective that a person by that name had never worked there. When Detective Goff confronted Ms. Miller with this information, she explained she made a mistake because she was scared, but had actually been working at the McDonald's on Claiborne Avenue and Louisiana Avenue in Orleans Parish. Detective Goff determined that Ms. Miller had been fired from this McDonald's on March 17, 2011, twelve days before the murder. Subsequently, at trial, Ms. Miller explained that she was untruthful with the police because she was scared and did not want to get involved.
At trial, Ms. Miller testified that at around 1:00 a.m. that same morning, she received a telephone call from defendant, her boyfriend, who asked her to pick him up. Ms. Miller drove and picked defendant up from a trailer park near the Mark Twain apartment complex. When defendant got into the car, Ms. Miller observed that he was out of breath, “agitated, sweaty, and just didn't want to be bothered.” Ms. Miller asked defendant what had happened; defendant initially did not respond, but then explained that he had shot someone.
Defendant then directed Ms. Miller to drive to her grandmother's house on Simon Street, which was uninhabited and abandoned due to a fire. When they arrived, defendant exited the car and proceeded to the back of the house and returned to the car after a few minutes. Defendant then directed Ms. Miller to go to her parents' house. When they arrived, the couple retreated to her bedroom, where Joanna's mother discovered defendant the next morning. Ms. Miller testified that she did not observe defendant with a gun that night, but acknowledged that she has seen him with a “big and bulky” gun 2 in the past.[15]
2 At trial, Deputy Jene Rauch testified that the projectiles recovered from the victim's body exhibited signs consistent with having been fired from a hi-point firearm, which she described as “usually pretty big and bulky ... a real heavy gun.”.

         III. Petitioner's Claims

         A. Excessive Sentence

         Smoot, who was a juvenile at the time of the crime, claims that the trial court erred in denying his motion to reconsider sentence. He contends that his sentence violates Miller v. Alabama, 567 U.S. 460 (2012), and Montgomery v. Louisiana, 136 S.Ct. 718 (2016), because he was not given the opportunity to present mitigating factors such as the attendant qualities of youth at his sentencing hearing. He also claims his life sentence without parole is excessive.

         Petitioner raised this claim on direct appeal. In the last reasoned state court judgment, the Louisiana Fifth Circuit Court of Appeal found:

In the instant case, the trial court clearly complied with the sentencing directives set forth in Miller v. Alabama, supra. At the sentencing hearing conducted on January 31, 2013, defendant argued that he should be allowed parole eligibility pursuant to the principles set forth in Miller. Citing studies about the intellectual ability, psychological development, and reasoning processes of adolescents, defense counsel suggested to the court that defendant, who was 17 at the time of the crime, “did not possess the full reasoning capabilities of an adult in his early twenties; that he would have been more prone to be influenced by risk taking and sensation thinking.” Defense counsel then advised the court that defendant came from a broken home; that he was raised primarily by his grandfather; that between the ages of 12 and 15, defendant was placed in group homes and Boys Town; and that during that three-year time period, he was treated by psychiatrists, psychologists, and counselors. Defense counsel then asked the court to take these factors into consideration and fashion a sentence that would afford defendant at least the opportunity for parole.
The State then articulated that it took no position as to sentencing; however, the prosecutor then discussed the principles of Miller and reviewed the factors set forth in LSA-C.Cr.P. arts. 894.1 and 905.5 that should be taken into consideration in the imposition of sentence. In particular, the State noted that “this was an elderly victim, who had HIV, who was homeless, was crack addicted, and was shot multiple times, in the front and in the back.” The State stressed that a firearm was used, that the murder occurred as a result of defendant's involvement in the drug trade, and that a sentence of life with parole would deprecate the seriousness of the matter. The State also informed the trial judge that defendant was presently serving a sentence for his conviction for possession with intent to distribute cocaine. In addition, defendant has a prior arrest for second degree murder, but the charge was refused because the witnesses failed to come forward to testify. The State also discussed the mitigating factors and found the only applicable one under the circumstances of this case to be the youth of the offender. In discussing this factor, the State stressed that defendant was 17 years old at the time of the offense and noted that under Louisiana law, a 17-year-old can receive adult consequences.
After hearing extensive argument from both sides, the trial court articulated its considerations before imposing sentence, specifically noting that it had read Miller and the other applicable cases. The trial court stated that it had taken into account the youth of defendant as well as his upbringing and previous criminal activity. Despite defendant's youth, the court found that defendant preyed upon a particularly vulnerable individual who was a homeless, HIV positive drug addict.5 Further, the court also expressed astonishment that defendant shot this victim multiple times over a stereo.
5 Although the trial court specifies that the victim was HIV positive, this fact was not confirmed by any evidence.
The court then meticulously considered the sentencing guidelines as provided in LSA-C.Cr.P. art. 894.1. From the fact that a bullet was located underneath the victim's body, the court reasoned that defendant had shot the victim while he was incapacitated on the ground, shooting him “like a dog.” The court found this conduct demonstrated that defendant had “so little value [for] life” and exhibited a deliberate cruelty to the victim. Finally, the court contemplated the statutory mitigating circumstances for capital sentencing as provided in LSA-C.Cr.P. art. 905.5, finding no applicable circumstances other than defendant's youth.
In the instant case, it is clear that the trial court complied with the principles set forth in Miller prior to imposing sentence. He considered mitigating factors and particularly took defendant's youth into account before imposing a sentence of life imprisonment without benefit of parole. Accordingly, we find no error in the trial court's denial of defendant's motion to reconsider sentence. The arguments raised by defendant in this assigned error are without merit.[16]

         The Louisiana Supreme Court denied writs without stated reasons.[17]

         The United States Supreme Court in Miller v. v. Alabama, 567 U.S. 460 (2012), held that criminal sentences of “mandatory life without parole for those under the age of 18 at the time of their crimes violates the Eighth Amendment's prohibition on ‘cruel and unusual punishments.' ” Id. at 465. The Miller Court stated that mandatory life sentences “by their nature, preclude a sentence from taking account of an offender's age and the wealth of characteristics and circumstances attendant to it.” Id. at 476. Miller stated that it did not foreclose a sentencer's ability to impose a life sentence, but the sentencer must take into account how children are different, and how those differences counsel against irrevocably sentencing them to a lifetime in prison. The Court opined that “appropriate occasions for sentencing juveniles to this harshest possible penalty will be uncommon.” Id. at 479. Miller explained, “[o]ur decision ... mandates only that a sentencer follow a certain process -- considering an offender's youth and attendant characteristics -- before imposing a particular penalty.” Id. at 483.

         In Montgomery v. Louisiana, 136 S.Ct. 718 (2016), the Supreme Court held that Miller is in fact retroactive. The Court reasoned:

Miller, then, did more than require a sentencer to consider a juvenile offender's youth before imposing life without parole; it established that the penological justifications for life without parole collapse in light of “the distinctive attributes of youth.” Id., at __, 132 S.Ct., at 2465. Even if a court considers a child's age before sentencing him or her to a lifetime in prison, that sentence still violates the Eighth Amendment for a child whose crime reflects “ ‘unfortunate yet transient immaturity.' ” Id., at __, 132 S.Ct., at 2469 (quoting Roper, 543 U.S., at 573, 125 S.Ct. 1183). Because Miller determined that sentencing a child to life without parole is excessive for all but “ ‘the rare juvenile offender whose crime reflects irreparable corruption, ' ” 567 U.S., at __, 132 S.Ct., at 2469 (quoting Roper, supra, at 573, 125 S.Ct. 1183), it rendered life without parole an unconstitutional penalty for “a class of defendants because of their status”-that is, juvenile offenders whose crimes reflect the transient immaturity of youth. Penry, 492 U.S., at 330, 109 S.Ct. 2934. As a result, Miller announced a substantive rule of constitutional law. Like other substantive rules, Miller is retroactive because it “ ‘necessarily carr[ies] a significant risk that a defendant' ” -- here, the vast majority of juvenile offenders -- “ ‘faces a punishment that the law cannot impose upon him.'” Schriro, 542 U.S., at 352, 124 S.Ct. 2519 (quoting Bousley v. United States, 523 U.S. 614, 620, 118 S.Ct. 1604, 140 L.Ed.2d 828 (1998)).

Montgomery, 136 S.Ct. at 734.

         It is undisputed that petitioner was 17 years old at the time of the offense and was indicted prior to Miller. Petitioner, however, was convicted and sentenced approximately six months after the Miller decision. The transcript of the sentencing hearing reflects that defense counsel argued that the existence of mitigating circumstances in petitioner's case warranted a sentence of life with parole:

MR. FLEMING [defense counsel]:
….
Now the Supreme Court in Miller, stated that children should not be treated identically as adults. Studies have indicated that adolescents have basic intellectual abilities by age sixteen, but they still exercise poorer judgment than their adult counterparts.
Psychological development has been found to continue into a person's early adulthood; and this development continues as a child's reasoning becomes more abstract.
However, for a child, the concepts of what constitutes right and wrong are still seen very differently from a child as opposed to an adult.
Also, Your Honor, it has been found that adolescents exhibit behavior which interferes with their reasoning and thinking which could account for increased risk taking and sensation thinking.
Now patterns of brain development entered into teenage years with - with regard to that, MRIs reveal that teenagers frequently possess emotions and emotional behavior substantially different from those of their adult counterparts.
So therefore I would submit that Mr. Smoot, while at age seventeen, did not possess the full reasoning capabilities of an adult in his early twenties; that he would have been more prone to be influenced by risk taking and sensation thinking.
And finally, with regard to Mr. Smoot's personal background: he did come from a broken home; his father had legal custody of him; however, he was reared primarily by his grandfather; between the ages of twelve and fifteen, Mr. Smoot was placed in group homes, and Boys Town; and during that three year period, he was treated by psychiatrists, psychologists, and counselors.
So I would ask the Court to take into account those considerations, and to respectfully, in light of Miller versus Alabama, fashion a sentence for Mr. Smoot which would afford him at least the opportunity for parole.[18]

         After hearing the arguments of the parties, the trial court stated that it had considered petitioner's youth along with his criminal activity.[19] The transcript reflects that the court gave the following reasons for the sentence imposed in this case:

THE ...

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