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Frank v. Vannoy

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

November 14, 2018

JONATHAN J. FRANK D.O.C. # 329734
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 Jonathan J. Frank, who is proceeding pro se in this matter. Frank is an inmate in the custody of the Louisiana Department of Public Safety and Corrections and is currently incarcerated at the Louisiana State Penitentiary at Angola, Louisiana.

         This matter is before the court on initial review under Rule 4 of the Rules Governing Section 2254 Proceedings in the United States District Courts, and has been referred to the undersigned for review, report, and recommendations in accordance with the provisions of 28 U.S.C. § 636. For the following reasons IT IS RECOMMEDED that the petition be DENIED and DISMISSED WITHOUT PREJUDICE.

         I. Background

         Frank brings this petition to attack his 2014 conviction in the Fourteenth Judicial District Court, Calcasieu Parish, Louisiana, of one count of aggravated rape, a violation of Louisiana Revised Statute § 14:42. He challenges the conviction based on a claim of ineffective assistance of counsel. He has challenged the same conviction through another petition for writ of habeas corpus, pending in this court under Frank v. Vannoy, No. 2:18-cv-1432. There he also seeks relief based on a claim of ineffective assistance of counsel.

         II. Law & Application

         Rule 4 of the Rules Governing § 2254 Cases authorizes preliminary review of such petitions, and states that they must be summarily dismissed “[i]f it plainly appears from the petition and any attached exhibits that the petitioner is not entitled to relief.” Id. at Rule 4. To avoid summary dismissal under Rule 4, the petition must contain factual allegations pointing to a “real possibility of constitutional error.” Id. at Rule 4, advisory committee note (quoting Aubut v. Maine, 431 F.2d 688, 689 (1st Cir. 1970)). Accordingly, we review the pleadings and exhibits before us to determine whether any right to relief is indicated, or whether the petition must be dismissed.

         The Antiterrorism and Effective Death Penalty Act (“AEDPA”), 28 U.S.C. § 2244(b), prohibits repeated, abusive challenges to the same conviction. Accordingly, the following restrictions are placed on “second or successive” habeas petitions:

(1) A claim presented in a second or successive habeas corpus application under section 2254 that was presented in a prior application shall be dismissed.
(2) A claim presented in a second or successive habeas corpus application under section 2254 that was not presented in a prior application shall be dismissed unless--
(A) the applicant shows that the claim relies on a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable; or
(B)(i) the factual predicate for the claim could not have been discovered previously through the exercise of due diligence; and
(ii) the facts underlying the claim, if proven and viewed in light of the evidence as a whole, would be sufficient to establish by clear and convincing evidence that, but for constitutional error, no reasonable factfinder would have found ...

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