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Thompson v. Vannoy

United States District Court, W.D. Louisiana, Lake Charles Division

June 7, 2018

RANDALL C. THOMPSON D.O.C. # 590603
v.
DARREL VANNOY

         SECTION P

          UNASSIGNED DISTRICT JUDGE

          REPORT AND RECOMMENDATION

          KATHLEEN KAY UNITED STATES MAGISTRATE JUDGE

         Before the court is a petition for writ of habeas corpus filed pursuant to 28 U.S.C. § 2254 by Randall C. Thompson, who is proceeding pro se in this matter. Thompson is an inmate in the custody of the Louisiana Department of Public Safety and Corrections and is currently incarcerated at the Louisiana State Penitentiary in Angola, Louisiana. Darrel Vannoy, warden of that facility and respondent in this matter, opposes the petition.

         This petition 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 for writ of habeas corpus be DENIED and DISMISSED WITH PREJUDICE.

         I.

         Background

         A. Conviction

         Thompson was charged by bill of information in the Fourteenth Judicial District Court, Calcasieu Parish, Louisiana, with one count of aggravated incest, a violation of Louisiana Revised Statute § 14:78.1.[1] Doc. 17, att. 3, p. 52. At the conclusion of a jury trial on September 13, 2011, he was convicted as charged with 11 of 12 jurors concurring in the verdict. Id. at 46. He was sentenced to a 35 year term of imprisonment, without benefit of probation, parole, or suspension of sentence. Doc. 17, att. 12, p. 204.

         B. Direct Appeal

         Thompson filed an appeal in the Louisiana Third Circuit Court of Appeal, alleging the following assignments of error:

1. The trial court erred when it instructed the jury that jurisdiction was not an issue for consideration, despite two requests from the jury asking to consider the issue.
2. The trial court erred when it failed to grant the defense's request for a mistrial after the State presented “other crimes” evidence in violation of the court's order.
3. The trial court erred in depriving the defendant of a unanimous jury.
4. The case proceeded to trial in violation of the speedy trial act.

State v. Thompson, 111 So.3d 580, 581 (5th Cir. 2013). Finding no merit to the above claims and noting that the defense had waived the jurisdictional argument by failing to file a motion to quash, the Third Circuit affirmed Thompson's conviction. Id. at 581-87. Thompson sought review in the Louisiana Supreme Court, which denied same. State v. Thompson, 125 So.3d 1102 (2013). He then filed a petition for writ of certiorari in the United States Supreme Court, which was denied on April 28, 2014. Thompson v. Louisiana, 134 S.Ct. 1942 (2014).

         C. State Collateral Review

         Thompson filed a pro se application for post-conviction relief, claiming ineffective assistance of trial counsel, in the state district court on or about January 21, 2015.[2] Doc. 17, att. 13, pp. 57-80. He also requested appointment of counsel and an evidentiary hearing. Id. at 54-56. After receiving a response from the state, the court denied the application without a hearing. Id. at 100. The petitioner sought a writ of review in the Third Circuit, which denied same with the following:

WRIT DENIED: Relator was not prejudiced by counsel's failure to file a motion to quash the indictment or a motion to continue the trial. Relator had sufficient time to investigate and interview witnesses based on discovery responses filed on March 21, 2011. Accordingly, Relator's writ application seeking review of the trial court's June 15, 2015 order is denied. See Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052 (1984).

Id. at 107. The petitioner then sought review in the Louisiana Supreme Court, which denied same on April 7, 2017, while also noting cursorily that “Relator fails to show he received ineffective assistance of counsel under the standard of Strickland . . . .” Id. at 110-11; State ex rel. Thompson v. State, 215 So.3d 663 (La. 2017).

         D. Federal Habeas Petition

         The instant petition was filed in this court on July 5, 2017. Doc. 1, p. 15. Thompson raises the following claims for relief:

1. The state courts circumvented federal law by failing to rule on the petitioner's motion to appoint counsel in his application for post-conviction relief.
2. Thompson received ineffective assistance based on:
a. Trial counsel's failure to file a motion to quash challenging jurisdiction.
b. Trial counsel's failure to seek a continuance.
c. Trial counsel's failure to properly investigate and interview witnesses.
d. The cumulative effect of trial counsel's errors.
3. The allowance of a conviction by non-unanimous jury under Louisiana law is unconstitutional.
4. The state court lacked jurisdiction over Thompson's case.
5. The state court erred in not granting a mistrial after prosecutors elicited other crimes evidence.

Doc. 1, att. 2. The respondent has filed an answer and memorandum in opposition [doc. 17; doc. 17, att. 1] and Thompson has filed a reply. Doc. 19. Accordingly, ...


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