United States District Court, W.D. Louisiana, Lake Charles Division
DEKE DURASO D.O.C. # 352900
REPORT AND RECOMMENDATION
KATHLEEN KAY, UNITED STATES MAGISTRATE JUDGE.
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.
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.
March 5, 2009, Duraso was charged with four counts of
aggravated incest,  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. See Id. at 61-66, 79-89.
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. 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.
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.
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.
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
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.
State Collateral Review
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. 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).
Federal Habeas Petition
instant petition was filed in this court on November 17,
2017. Doc. 1. Here Duraso raises the following claims for
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
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.
on Habeas Review
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).
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
Exhaustion and Procedural Default
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.
Exhaustion of State Court Remedies
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, ...