Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Frank v. Vannoy

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

December 27, 2018

JONATHAN J. FRANK D.O.C. # 329734
v.
DARREL VANNOY

         SECTION P

          DOUGHTY 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 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.

         I. Background

         Following a jury trial in the Fourteenth Judicial District Court, Calcasieu Parish, Louisiana, Frank was convicted on May 15, 2014, of one count of aggravated rape, a violation of Louisiana Revised Statute § 14:42. State v. Frank, 159 So.3d 1131, 1132 (La. Ct. App. 3d Cir. 2015). He sought review in the Louisiana Third Circuit Court of Appeal, raising the following assignments of error:

1. The evidence was insufficient to support the conviction.
2. The trial court erred in denying Frank's motion for a new trial.

Id. The court also found one error patent relating to Frank's absence from the courtroom while the jury viewed the state's exhibits. Id. at 1133. The court reviewed all issues on the merits and denied relief on March 4, 2015. Id. at 1133-37. Frank states that he then sought review in the Louisiana Supreme Court, but we cannot locate a copy of that court's decision. Doc. 1, p. 4.

         Frank states that, after conclusion of review on his direct appeal, he “timely filed” an application for post-conviction relief through counsel. Doc. 1, att. 2, p. 3. Frank's exhibits show that his post-conviction counsel mailed the application to the trial court on April 26, 2016, but his copies do not show the date that the pleading was received by the court. Doc. 1, att. 3, p. 3. There Frank claimed that he was denied his right to effective assistance of trial counsel. Id. at 4-9. He also contends that relief was denied by the trial court and Third Circuit Court, and the record shows that the Louisiana Supreme Court denied review on August 31, 2018. Doc. 1, p. 5; State ex rel. Frank v. Frank, 251 So.3d 1068 (La. 2018).

         Frank filed the instant petition for writ of habeas corpus on or about November 1, 2018, raising ineffective assistance of trial counsel as his claim for relief.[1] Accordingly, we now begin our initial review of the petition.

         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)). ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.