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Brown v. Vannoy

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

November 29, 2018

JEREMY LEE BROWN D.O.C. # 32084
v.
VERSUS DARRELL VANNOY

         SECTION P

          HICKS, CHIEF JUDGE.

          MEMORANDUM ORDER

          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 Jeremy Lee Brown, who is proceeding pro se in this matter. Brown 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 recommendation in accordance with the provisions of 28 U.S.C. § 636.

         I.

         Background

         Following a jury trial in the 33rd Judicial District Court, Allen Parish, Louisiana, Brown was convicted of two counts of first degree murder and one count of obstruction of justice on May 25, 2012. State v. Brown, 2013 WL 1319551, at *1 (La. Ct. App. 3d Cir. Apr. 3, 2013). These charges related to the death of his mother and stepfather. Id. Brown was sentenced to life imprisonment without the benefit of probation, parole, or suspension of sentence on the first degree murder convictions and a ten-year term of imprisonment on the obstruction of justice conviction, with all sentences to be served concurrently. Id. He sought review in the Louisiana Third Circuit Court of Appeal, raising the following assignments of error: (1) the convictions were based on insufficient evidence; (2) that the trial court erred in denying his motion for mistrial based on the allegedly prejudicial remarks in the state's closing argument; and (3) that his right to a fair trial was violated when the Third Circuit granted the state's writ of supervisory review and reversed the trial court's decision to bar evidence of other crimes. Id. at *2-*10. The Third Circuit considered these claims on the merits and denied relief. Id. Brown states that he filed a writ application in the Louisiana Supreme Court for this decision and was denied same on November 5, 2018, but the Louisiana Supreme Court decision for that date relates to his application for post-conviction relief. State ex rel. Brown v. State, 2018 WL 5962537 (La. Nov. 5, 2018).

         Brown states that he also filed a motion for post-conviction relief in the trial court on some unspecified date. Doc. 1, att. 2, p. 156. According to the Louisiana Third Circuit, that application was denied on October 5, 2016. Id. at 167. The Third Circuit denied review of his claims on July 7, 2017, and described his claims for relief as alleged constitutional violations based on (1) juror misconduct, (2) an illegal arrest, (3) prosecutorial misconduct and perjured testimony, and (4) ineffective assistance by appellate counsel. Id. On November 5, 2018, the Louisiana Supreme Court denied review without comment. Doc. 1, att. 2, p. 180; Brown, 2018 WL 5962537, at *1. Brown filed the instant petition for writ of habeas corpus on November 15, 2018, [1] and asserts only a claim of juror misconduct based on his belief that the others are unexhausted. Doc. 1.

         II.

         Law & Application

         A. Rule 4 Review

         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.

         B. Timeliness

         The Antiterrorism and Effective Death Penalty Act (“AEDPA”) 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, which includes the period for filing certiorari in the United States Supreme Court. Id.; Ott v. Johnson, 192 F.3d 510, 513 (5th Cir. 1999). 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. 28 U.S.C. ยง ...


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