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Duraso v. Vannoy

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

June 7, 2018

DEKE DURASO D.O.C. # 352900
v.
DARREL VANNOY

         SECTION P

          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 Deke Duraso, who is proceeding pro se in this matter. Duraso 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

         On March 5, 2009, Duraso was charged with four counts of aggravated incest, [1] a violation of Louisiana Revised Statute § 14:89.1, in the Fourteenth Judicial District, Calcasieu Parish, Louisiana. Doc. 17, att. 6, pp. 10-11. The record reflects that he was arrested in West Virginia on December 9, 2008, and later extradited to Calcasieu Parish, after the victim disclosed that he had sexually abused him/her.[2] See Id. at 61-66, 79-89.

         On June 7, 2011, Duraso filed a pro se motion to quash based on the state's failure to commence trial within the time set forth under Article 578(A)(2) of the Louisiana Code of Criminal Procedure.[3] Id. at 164-68. The trial court denied Duraso's motion without a hearing. Id. at 169. On September 2, 2011, defense counsel filed a motion to quash based on the trial court's failure to grant a hearing on the defendant's pro se motion. Id. at 183. The trial court responded by ordering a response from the state. Id. It then denied Duraso's motion, which it termed a “Motion to Reconsider the Motion to Quash.” Id. at 28. A jury trial began the next day, on September 7, 2011. Id. at 29. Instead of proceeding to trial, however, Duraso entered a guilty plea to all four charges before jury selection was complete. Id. at 29-30.

         The trial court rejected the parties' sentencing recommendation of twenty-five years and instead sentenced Duraso to terms of twenty years on each count, with the terms for first two counts to run consecutively, ten years of the third count to run consecutive to the terms imposed for counts 1 and 2 and ten years to run concurrent to those terms, and with all twenty years of count 4 to run concurrent to the terms imposed for counts 1 through 3, resulting in a total term of imprisonment of fifty years. Id. at 30-31; see doc. 17, att. 7, pp. 177-78. The petitioner then filed a motion to withdraw guilty plea and a motion to reconsider sentence, which the trial court heard and denied on September 23, 2011. Doc. 17, att. 6, p. 32. He also filed a motion for appeal and designation of record on October 21, 2011. Doc. 17, att. 7, pp. 83-84.

         On January 10, 2012, the Louisiana Third Circuit Court of Appeal granted Duraso's writ application as it related to the denial of his motion to quash and found that Duraso was entitled to an evidentiary hearing on that matter. Id. at 88. The trial court set the matter for hearing on February 8, 2012, but then determined that it did not have jurisdiction because an appeal of the conviction and sentence was already pending as described below. Id. at 105. The trial court informed Duraso and the state, via letter, that “[t]he Third Circuit has been alerted to the issue and informed the District Attorney that they will likely remand this case for the hearing once the record has lodged.” Id. The Third Circuit then remanded the appeal to the trial court for a hearing on the motion to quash. Doc. 17, att. 9, p. 10. On October 15, 2012, the trial court issued written reasons denying the motion to quash, based on its finding that Duraso's preliminary pleas had interrupted the limitations period for commencing prosecution under Article 578 of the Louisiana Code of Criminal Procedure. Id. at 49-52.

         B. Direct Appeal

         Duraso raised the following assignments of error in the Louisiana Third Circuit Court of Appeal:

1. The trial court erred in denying his motion to quash, because prosecution was commenced outside of the two year limitations period under Louisiana Code of Criminal Procedure Article 580.
2. The trial court erred in denying his motion to withdraw guilty plea, based on the court's rejection of the 25-year sentencing recommendation agreed to by the parties.
3. The sentence was excessive.
4. The trial transcript contained errors.

State v. Duraso, 127 So.3d 1015 (La. Ct. App. 3d Cir. 2013). The Third Circuit reviewed all claims on the merits and denied relief. Id. Duraso sought review in the Louisiana Supreme Court through applications for supervisory and remedial writs, both of which were denied on June 20, 2014. State v. Duraso, 141 So.3d 286 (La. 2014). He did not file a petition for writ of certiorari in the United States Supreme Court. Doc. 1, p. 2.

         C. State Collateral Review

         Duraso filed a pro se application for post-conviction relief in the trial court on August 21, 2015, claiming ineffective assistance of counsel and that the trial court applied Article 580 of the Louisiana Code of Criminal Procedure unconstitutionally by denying his motion to quash.[4] Doc. 17, att. 3, pp. 138-83. The trial court denied the application without a hearing. Doc. 17, att. 4, pp. 237-39. Duraso sought review in the Third Circuit, which denied same with a brief written opinion noting that Duraso had failed to show ineffective assistance under Strickland v. Washington, 104 S.Ct. 2052 (1984), and that his claim relating to the motion to quash was repetitive under Article 930.4(A) of the Louisiana Code of Criminal Procedure. Id. at 248. Duraso then sought review in the Louisiana Supreme Court, which denied same in a one-word order on September 22, 2017. State ex rel. Duraso v. State, 227 So.3d 821 (La. 2017). As Duraso shows, however, and the respondent agrees, mailing of notice of this ruling was possibly delayed until at least October 25, 2017, due to staffing problems at the Louisiana Supreme Court. See doc. 1, att. 3, p. 143 (letter from Louisiana Supreme Court clerk noting a general mailing delay from that court to the Louisiana State Penitentiary); id. at 144 (envelope from Louisiana Supreme Court, marked as received on October 31, 2017); doc. 17, att. 1, p. 16 (respondent's agreement that October 25, 2017, should be used as the date of notice for that ruling).

         D. Federal Habeas Petition

         The instant petition was filed in this court on November 17, 2017. Doc. 1. Here Duraso raises the following claims for relief:

1. Duraso was denied his constitutional rights to due process and a speedy trial through the denial of his motion to quash.
2. The trial court erred in denying Duraso's motion to withdraw his guilty plea.
3. The enforcement of Louisiana Code of Criminal Procedure Article 580 is unconstitutional as applied to Duraso's case.
4. Trial counsel provided ineffective assistance by failing to (a) sufficiently consult with Duraso and conduct an adequate investigation, (b) present a defense, (c) object to any of the state's continuances, and (d) advise Duraso of the possible sentencing range, including the potential for the sentences to run consecutively.
5. Trial counsel provided ineffective assistance based on the complete breakdown of communication or irreconcilable conflict with his client, arising from Duraso's challenge to trial counsel's refusal to file a motion to quash and failure to prepare a defense.
6. Trial counsel provided ineffective assistance when Mr. Williams and his supervisor, Mr. Dixon, betrayed Duraso's trust and testified against him.

Id. He also appears to request an evidentiary hearing on his claims. Doc. 1, att. 2, p. 56.

         II.

         Standards on Habeas Review

         A. Timeliness

         Federal law imposes a one-year limitation period within which persons who are in custody pursuant to the judgment of a state court may seek habeas review in federal court. 28 U.S.C. § 2244(d)(1). This period generally runs from the date that the conviction becomes final. Id. The time during which a properly-filed application for post-conviction relief is pending in state court is not counted toward the one-year limit. Id. at § 2244(d)(2); Ott v. Johnson, 192 F.3d 510, 512 (5th Cir. 1999). However, any lapse of time before proper filing in state court is counted. Flanagan v. Johnson, 154 F.3d 196, 199 n. 1 (5th Cir. 1998).

         A state application is considered pending both while it is in state court for review and also during intervals between a state court's disposition and the petitioner's timely filing for review at the next level of state consideration. Melancon v. Kaylo, 259 F.3d 401, 406 (5th Cir. 2001). The limitations period is not tolled, however, for the period between the completion of state review and the filing of the federal habeas application. Rhines v. Weber, 125 S.Ct. 1528 (2005). Accordingly, in order to determine whether a habeas petition is time-barred under the provisions of §2244(d) the court must ascertain: (1) the date upon which the judgment became final either by the conclusion of direct review or by the expiration of time for seeking further direct review, (2) the dates during which properly filed petitions for post-conviction or other collateral review were pending in the state courts, and (3) the date upon which the petitioner filed his federal habeas corpus petition.

         B. Exhaustion and Procedural Default

         Exhaustion and procedural default are both affirmative defenses that may be considered waived if not asserted in the respondent's responsive pleadings. E.g., Cupit v. Whitley, 28 F.3d 532, 535 (5th Cir. 1994). However, the federal district court may also consider both doctrines on its own motion. Magouirk v. Phillips, 144 F.3d 348, 357-59 (5th Cir. 1998). Therefore we consider any assertions by respondent under these doctrines, in addition to conducting our own review.

         1. Exhaustion of State Court Remedies

         The federal habeas corpus statute and decades of federal jurisprudence require that a petitioner seeking federal habeas corpus relief exhaust all available state court remedies before filing his federal petition. 28 U.S.C. § 2254(b)(1); e.g., Whitehead v. Johnson, 157 F.3d 384, 387 (5th Cir. 1998). This is a matter of comity. Ex parte Royall, 6 S.Ct. 734, 740-41 (1886). In order to satisfy the exhaustion requirement, the petitioner must have “fairly presented” the substance of his federal constitutional claims to the state courts “in a procedurally proper manner according to the rules of the state courts.” Wilder v. Cockrell, 274 F.3d 255, 259 (5th Cir. 2001); Dupuy v. Butler, 837 F.2d 699, 702 (5th Cir. 1988). Each claim must be presented to the state's highest court, even when review by that court is discretionary. Wilson v. Foti, 832 F.2d 891, ...


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