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Diggs v. Vannoy

United States District Court, W.D. Louisiana, Lafayette Division

September 18, 2018

JAMAAL DIGGS #486702
v.
DARREL VANNOY

          REPORT AND RECOMMENDATION

          CAROL B. WHITEHURST UNITED STATES MAGISTRATE JUDGE.

         Pro se petitioner Jamaal Diggs, an inmate in the custody of Louisiana&#3');">3');">3');">39;s Department of Corrections, filed the instant petition for writ of habeas corpus pursuant to 28 U.S.C. §2254');">4 on December 11, 2017. Petitioner attacks his 2012 conviction for second degree murder and the life sentence imposed thereafter by the Fifteenth Judicial District Court, Vermilion Parish, Louisiana. This matter has been referred to the undersigned for review, report, and recommendation in accordance with the provisions of 28 U.S.C. §63');">3');">3');">36 and the standing orders of the Court.

         I. Background

         On October 24');">4, 2012, a jury found petitioner guilty as charged of second degree murder and he was sentenced to serve life in prison without the benefit of parole, probation, or suspension of sentence. His retained appellate attorney argued the following assignments of error on direct appeal to the Third Circuit Court of Appeal: (1) evidence at trial was contradictory, inconsistent and tainted, therefore, legally insufficient; and (2) his sentence was unconstitutionally excessive. On February 12, 2014');">4, the Third Circuit affirmed petitioner&#3');">3');">3');">39;s conviction and sentence. State of Louisiana v. Jamaal Cole Diggs, 13');">3');">3');">3-766 (La.App. 3');">3');">3');">3 Cir. 2/14');">4/2014');">4), 4');">4 So.3');">3');">3');">3d 15');">154');">4 So.3');">3');">3');">3d 15; see also Rec. Doc. 1-3');">3');">3');">3, pp. 4');">4-15. Petitioner did not file an application for writ of certiorari in the Louisiana Supreme Court. See Rec. Doc. 1-2, p. 3');">3');">3');">3.

         On February 11, 2015, petitioner filed a pro se application for post-conviction relief in the Fifteenth Judicial District Court. [Rec. Doc. 1-3');">3');">3');">3, pp. 23');">3');">3');">3-56]. Petitioner alleged three claims for relief: (1) ineffective assistance of trial counsel in failing to object when prosecutor elicited police officer testimony of petitioner&#3');">3');">3');">39;s post-Miranda exercise of his Fifth Amendment right against self-incrimination; (2) ineffective assistance of appellate counsel in failing to raise the issue of trial counsel failing to object to the prosecutor elicited police officer testimony; (3');">3');">3');">3) ineffective assistance of trial counsel in failing to raise issue of impeached testimony, standing alone, being unconstitutionally used to obtain conviction; and (4');">4) ineffective assistance of trial counsel in failing to object to prosecutorial misconduct where prosecutor made prejudicial remarks concerning facts not offered in evidence. [Rec. Doc. 1-3');">3');">3');">3, 4');">41');">p. 4');">41]

         The trial court denied plaintiff&#3');">3');">3');">39;s application on August 10, 2015. [Rec Doc. 1-4');">4, pp. 2-3');">3');">3');">3] On September 8, 2015, Petitioner sought further review in the Third Circuit Court of Appeal [Rec. Doc. 1-4');">4, pp. 5-3');">3');">3');">30] and on March 14');">4, 2016, in Docket Number KH-15-00853');">3');">3');">3, the Court of Appeal denied writs, finding no error in the trial court&#3');">3');">3');">39;s ruling. [Rec. Doc. 1-4');">4, p. 3');">3');">3');">32] Thereafter, Petitioner filed an application for writs in the Louisiana Supreme Court. [Rec. Doc. 1-4');">4, pp. 3');">3');">3');">35-57] On September 29, 2017, that court denied writs without comments. State of Louisiana ex rel. Jamaal Cole Diggs v. State of Louisiana, 2016-KH-0697 (La. 9/29/2017), 227 So.3');">3');">3');">3d 260; see also Rec. Doc.1-4');">4, p. 60] Petitioner asserts, however, that he did not receive the Court&#3');">3');">3');">39;s ruling until November 9, 2017, due to a delay in the sending of the Court&#3');">3');">3');">39;s ruling, established by correspondence sent from Louisiana Supreme Court Clerk of Court, John Tarlton Olivier, and attached as an exhibit to the instant petition. [Rec. Doc. 1-3');">3');">3');">3, p. 2]

         Petitioner filed the instant petition on December 11, 2017. He argues the following claims for relief: (1) the evidence at trial was contradictory, inconsistent and tainted, therefore legally insufficient to establish the defendant&#3');">3');">3');">39;s guilty behind reasonable doubt; (2) should a defendant be automatically imprisoned for life without the chance or opportunity to ever be released without a meaningful and particularized evaluation of an appropriate sentence in view of Dorthey and its progeny; (3');">3');">3');">3) trial counsel in failing to object when prosecutor elicited police officer testimony of petitioner&#3');">3');">3');">39;s post-Miranda exercise of his Fifth Amendment right against self-incrimination; (4');">4) trial counsel failed to object to prosecutor elicited police officer testimony of petitioner&#3');">3');">3');">39;s post-Miranda silence and ask for a mandatory mistrial/appellate counsel failed to raise the issue on direct appeal; (5) trial counsel failed to raise issue of impeached testimony, standing alone, being unconstitutionally used to obtain conviction; and (6) trial counsel failed to object to prosecutorial misconduct where prosecutor made prejudicial remarks concerning facts not offered in evidence.

         II. Law and Analysis

         A. Standard of Review - 28 U.S.C. § 2254');">4

         The Antiterrorism and Effective Death Penalty Act (“AEDPA”) of 1996, 28 U.S.C. § 2254');">4, governs habeas corpus relief. The AEDPA limits how a federal court may consider habeas claims. After the state courts have “adjudicated the merits” of an inmate&#3');">3');">3');">39;s complaints, federal review “is limited to the record that was before the state court[.]” Cullen v. Pinholster, 3');">3');">3');">31 S.Ct. 13');">3');">3');">388');">13');">3');">3');">31 S.Ct. 13');">3');">3');">388, 13');">3');">3');">398 (2011). An inmate must show that the adjudication of the claim in state court:

(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or
(2) resulted in a decision that 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');">4(d)(1)-(2).

         A decision is “contrary to” clearly established Federal law “if the state court arrives at a conclusion opposite to that reached by . . . [the Supreme Court] on a question of law or if the state court decides a case differently than [the Supreme Court] has on a set of materially indistinguishable facts.” Dowthitt v. Johnson, 3');">3');">3');">30 F.3');">3');">3');">3d 73');">3');">3');">33');">3');">3');">3');">23');">3');">3');">30 F.3');">3');">3');">3d 73');">3');">3');">33');">3');">3');">3, 74');">40-4');">41 (5 Cir. 2000) (quoting Williams v. Taylor, 3');">3');">3');">362');">529 U.S. 3');">3');">3');">362 (2000)). “The ‘contrary to&#3');">3');">3');">39; requirement refers to holdings, as opposed to the dicta, of . . . [the Supreme Court&#3');">3');">3');">39;s] decisions as of the time of the relevant state court decision.” Id. at 74');">40. Under the “unreasonable application” clause, a federal habeas court may grant the writ only ...


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