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Thibodeaux v. Vannoy

United States District Court, E.D. Louisiana

August 10, 2018

TIMOTHY THIBODEAUX
v.
DARRYL VANNOY ET AL.

         SECTION “E” (2)

          REPORT AND RECOMMENDATION FOR STAY ORDER

          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. It may be one of those rare petitions filed by a prisoner in proper person that warrants federal habeas corpus relief. However, the strongest basis that might support such relief - a standalone claim that petitioner's Confrontation Clause rights were violated, compounded by the admission of his counsel that counsel knew nothing about the Confrontation Clause at the time of trial - has not been exhausted in the state courts. Comity and the obligation of this court to defer to the preeminent position of the state courts in this circumstance mandate requiring plaintiff to exhaust his state court remedies. To preserve his federal habeas corpus rights, however, I recommend that this court STAY this case while plaintiff pursues exhaustion of review of his substantial standalone Confrontation Clause claim in the state courts.

         I. FACTUAL AND PROCEDURAL BACKGROUND

         Petitioner Timothy Thibodeaux is an inmate currently incarcerated in the Louisiana State Penitentiary in Angola, Louisiana. On September 21, 2009, Thibodeaux was charged in a grand jury indictment in Lafourche Parish with one count of aggravated rape of a minor, his daughter C.T., and with one count of aggravated incest of a minor, his daughter A.T.[1] After a one-day bench trial on June 20, 2011, Thibodeaux was found guilty as charged.[2] He was sentenced to life in prison plus 50 years without benefit of parole on September 12, 2011.[3]

         At trial, the assistant district attorney and Thibodeaux's trial attorney stipulated that Thibodeaux and his attorney viewed the following audio video interview of the child victims from the Children's Advocacy Center of Lafourche Parish: (1) video of C.T. dated 10/4/07; (2) video of C.T. dated 8/5/09; (3) video of A.T. dated 10/4/07; (4) video of A.T. dated 8/5/09. In 2007, C.T. was nine years old and A.T. was seven years old.[4]Those four videos were the only exhibits introduced into evidence.[5] The children did not testify at trial.

         The State called Sergeant Toby Gambarella and Shannon Gros as witnesses.[6] In October 2007, Gambarella worked in the Lafourche Parish Sheriff's Office juvenile investigations division. Gambarella testified that he was present for the separate interviews of C.T. and A.T. on October 4, 2007, and that Lafourche Parish Sheriff's Office and Children's Advocacy Center of Lafourche Parish protocol was followed. He stated that protocol dictated that no attorneys were present during either of the girls' interviews, and that only the forensic interviewer, Shannon Gros, was in the room with the girls. Gambarella testified that he did not “feel there was enough probable cause to make an arrest” in 2007. He stated that he was also present for the separate interviews of C.T. and A.T. on August 5, 2009, and that C.T.'s 2009 interview was more detailed in terms of what happened with her father.[7]

         Shannon Gros testified that he was a forensic interviewer at the Children's Advocacy Center of Lafourche Parish at the time of the interviews. He described the Children's Advocacy Center as “a place where children are brought to be interviewed by a forensic interviewer utilizing what we call a ‘multiple disciplinary approach' where members of the multidisciplinary team, who are currently involved in an investigation, monitor the interview from an observation room.” Gros identified the October 4, 2007 and August 5, 2009 videos of C.T. and A.T., which were offered, filed and introduced into evidence as State's Exhibits Nos. 1, 2, 3 and 4. After each video was offered, filed and introduced into evidence at trial, the court asked defense counsel if he had any objections, and each time he answered, “No objection.”[8]

         After Gros' testimony, court recessed to watch all four videos in the jury room. Present in the jury room were the judge, the assistant district attorney, her secretary, counsel for Thibodeaux, Thibodeaux himself, the judge's minute clerk and the bailiff.[9]Deputy Gambarella was then called back to the stand, and he testified that no physical examinations were done on either child in 2007 or 2009.[10]

         The defense called defendant Thibodeaux as its only witness.[11] Thibodeaux denied that any of his daughters witnessed him and his wife engaging in sexual activities, and he denied exposing himself to his daughters. He testified that he always slept clothed, and that he always locked the door when he was in the bathroom. Thibodeaux denied ever doing anything inappropriate with any of his daughters. He admitted that he and his wife watched pornographic videos, but he testified that they did so out of the sight of their daughters. Thibodeaux described two instances when he found his oldest daughter, C.T., beginning to watch one of the videos, but he testified that he caught her when the video was in the opening credits before anyone appeared on screen.[12]

         At the end of the trial, the judge stated, “Without [C.T.] and [A.T.] making the statements in 2009, this case is over.” He found, based on C.T.'s and A.T.'s videotaped statements, that the state proved beyond a reasonable doubt the charges of aggravated rape and aggravated incest. The judge found Thibodeaux guilty on both counts.[13]

         During a state district court hearing on September 12, 2011, concerning Thibodeaux's motion for new trial and sentence, the judge addressed his review of “the transcript of the trial and the discussions of Counsel prior to the calling of witnesses, as well as the arguments, objections, and statements of Counsel during the trial.” The judge stated:

There was no objection to the tapes coming in of the victim's statements. In fact, almost the opposite was true. It was almost as if they were more than happy to have the tapes to be shown. There was no objection to foundation, as was the case in [State ex rel. LW, 40 So.3d 1220 (La.App. 1 Cir. 2010)]. There was no objection as to capacity of the children. There was no objection as to confrontation.
. . .
I don't even remember one request to have the children produced or the State making any statement that the children were not going to be produced. The children weren't even discussed.”

         The judge found that the State did not have a burden to call the children to the stand, and he found no basis for granting Thibodeaux's motion for new trial and sentence.[14]

         Thibodeaux filed a direct appeal in the Louisiana First Circuit Court of Appeal, which rendered judgment affirming his convictions and sentences on September 21, 2012. In its opinion, the Louisiana First Circuit summarized the trial as follows:

At trial, the State presented evidence of defendant's offenses primarily through videotaped interviews of victims, which were conducted at the Lafourche Children's Advocacy Center (“CAC”). The evidence supporting defendant's convictions was included in separate interviews conducted with C.T. and A.T. on August 5, 2009, when the victims were in the custody of a foster parent. C.T. stated during her interview that defendant had inserted his penis into her vagina one night while she was living in her mother's trailer. A.T. stated during her interview that defendant twice touched her private area with his hands. According to A.T., defendant had once touched the outside of her private area, under her underwear. A.T. said that on another occasion, defendant inserted his finger into her vagina. Both C.T. and A.T. stated that these incidents occurred prior to their placement into foster care, which occurred in late 2007.[15]

         Thibodeaux's writ of certiorari to the Supreme Court of Louisiana was denied on May 17, 2013.[16]

         Thibodeaux filed an application for post-conviction relief in the 17th Judicial District Court for Lafourche Parish on December 19, 2013.[17] In his supporting memorandum, Thibodeaux alleged ineffective assistance of counsel, which included an allegation that his counsel failed to assert his rights under the Confrontation Clause.[18]During the post-conviction relief hearing held on October 15, 2015, Thibodeaux's trial attorney admitted that he was not aware “of the law on the Confrontational (sic) Clause in the Constitution” at the time of trial. Counsel further stated, “I failed to properly represent him . . . . he didn't get an opportunity to prepare and to deal with those issues on the people that had confronted him, and I failed to call the witnesses that clearly should have been called: his mother-in-law, his wife, his older child.” Despite Thibodeaux's attorney's admission that he was ineffective, the judge denied Thibodeaux's application for post-conviction relief because Thibodeaux did not provide evidence that, but for his trial attorney's deficient representation, the result of the trial would have been different.[19]

         On April 26, 2016, the Louisiana First Circuit granted in part and denied in part Thibodeaux's application for supervisory writs. The appellate court reversed the district court's ruling denying post-conviction relief, reversed Thibodeaux's convictions, vacated his sentences and remanded the matter to the district court for a new trial. In its opinion, the Louisiana First Circuit stated that,

the videotaped interviews of the victims were the linchpin of the prosecution's case. There is no indication, however, that the State made the victims available at trial for trial for cross-examination, in person or by closed circuit television. Therefore, the use of the videotaped interviews as evidence, without affording relator an opportunity to exercise his right of cross-examination of the victims, violated relator's right to confrontation.[20]

         The Louisiana Supreme Court granted certiorari on October 27, 2017, and found that Thibodeaux had not asserted a standalone Confrontation Clause claim in his application for post conviction relief.[21] The court stated:

Defendant did not raise a standalone confrontation violation claim in his application for post-conviction relief. . . . “[A]ppellate courts will not consider issues raised for the first time” in appellate court. . . . defendant made no showing at the evidentiary hearing that the child victims were unavailable to testify at trial, and he impermissibly sought to shift his post-conviction burden of proof to the state by asserting that the state failed to demonstrate these witnesses' availability vel non to testify.[22]

         The Supreme Court of Louisiana granted Thibodeaux's writ application, reversed the court of appeal in part, and reinstated the district court's ruling denying the application for post-conviction relief, thus reinstating Thibodeaux's conviction and sentence.[23]

         II. FEDERAL ...


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