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Diaz v. McCain

United States District Court, E.D. Louisiana

January 25, 2019

FRANK DIAZ
v.
W.S. “SANDY” MCCAIN

         SECTION “G” (2)

          REPORT AND RECOMMENDATION

          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. Upon review of the entire record, I have determined that a federal evidentiary hearing is unnecessary. See 28 U.S.C. § 2254(e)(2).[1] For the following reasons, I recommend that the instant petition for habeas corpus relief be DISMISSED WITHOUT PREJUDICE for failure to exhaust state court remedies.

         I. FACTUAL AND PROCEDURAL BACKGROUND

         The petitioner, Frank Diaz, is incarcerated in the Raymond Laborde Correctional Center in Cottonport, Louisiana.[2] On January 21, 2015, Diaz was charged by bill of information in Orleans Parish with second degree battery, attempted second degree murder and extortion.[3] The Louisiana Fourth Circuit Court of Appeal summarized the facts established at trial in relevant part as follows:

Kristen Blake, a 911 operator and a custodian of records of the 911 dispatch office, identified an incident recall printout containing information received during a 911 call from the victim, B.A., who reported that the subject, Frank Diaz, had a warrant out of Florida for domestic violence. B.A. described a history of domestic abuse and reported that during the previous evening, Diaz had struck her in the face, head, and on her body, resulting in a bump on her forehead. B.A. advised that, when Diaz was asleep, she had packed up all of her belongings and fled the location and was on a RTA bus headed to the Greyhound Station. Based on the victim's report, the 911 operator dispatched an EMS unit and advised B.A. to exit the bus and wait for the ambulance to arrive. The 911 operator also dispatched the police under a signal of misdemeanor domestic abuse battery. The signal was later changed by the operator to attempted domestic homicide at the direction of the police officers responding to the call.
[. . .]
B.A. was the last witness for the State. She testified that she was fifty-two years old and originally from New York. In 2008, she was living and working in Miami, Florida where she began a romantic relationship with Diaz, who was a neighbor. B.A. stated that while initially everything in the relationship was fine, things deteriorated when Diaz began drinking heavily and would become belligerent and berate her. B.A. described Diaz as a jealous man. If he saw her speaking with another man, Diaz would accuse her of sleeping with the man. According to B.A., the situation escalated over July 3 and 4, 2013, when Diaz got intoxicated, accused her of sexual infidelity, and then began hitting her. B.A. testified that she called 911, and when she did so, Diaz left the residence and did not return. In fear, B.A. went to a women's shelter and eventually obtained an order of protection. In the process of doing so, she received a phone message from Diaz stating that if he were to catch her, he would kill her.
Following the incident in Florida, B.A. testified that she moved to Puerto Rico for eight months and then relocated to New York, where she lived on the streets. While in New York, B.A. reconnected with Diaz through his mother with whom she had kept in touch. B.A. relocated to Texas to be with Diaz, where he was then living. Diaz then moved to New Orleans to look for work and, in late December 2014, he asked B.A. to come to New Orleans and spend New Year's with him. B.A. stated that Diaz offered to pay for her bus ticket; she agreed and arrived in New Orleans on New Year's Eve.
According to B.A., when she arrived in New Orleans, she stayed with Diaz in his rented trailer located on Chef Menteur Highway. At first Diaz was “nice, ” but that changed when he began drinking and possibly using drugs. B.A. testified that on January 8, 2015, it was her birthday and she was celebrating by drinking. She claimed that Diaz became angry and demanded anal sex; she refused. Later, B.A. spoke with her son and made the decision to leave New Orleans.
The following day, January 9, 2015, B.A. testified that she secretly packed up her belongings while Diaz was at work because she did not want Diaz to suspect that she was leaving for fear that he would get more angry. B.A. stated that Diaz arrived home that evening at approximately 8:00 p.m. and that “[h]e didn't look right. His eyes were weird.” She claimed Diaz was angry and that he began to beat her up because she had consumed his beer. He demanded they have anal sex and when she refused, he continued to hit her with an open hand and pushed her to the floor where he positioned himself on top of her. Diaz began choking her causing her to lose consciousness.
B.A. testified that when she regained consciousness, Diaz threw her on the bed and attempted to shove a plastic bag down her throat in an effort to cover her screams. He continued to hit her and tried to grab her by the neck, choking her, while she tried to kick him off of her. B.A. believes she momentarily lost consciousness a second time. She stated that Diaz kept threatening to kill her and told her that if she ever told anyone about what he had done, he would beat her up so badly that no one would be able to recognize her because “he wasn't going to go to jail for nobody, ” not even her.
B.A. explained that after assaulting her, Diaz told her to go to sleep. She claims she pretended to do so, and after Diaz had fallen asleep, she left the trailer. B.A. stated that she boarded a local bus with the intention of going to the Greyhound Station to leave the city. She testified that she called 911 from the bus because she wanted to report the assault and was told by the 911 operator to get off of the bus. B.A. claimed she initially advised the 911 operator that she did not need an ambulance because she did not realize she was hurt. She then exited the bus, met with the paramedics, and was transported to University Hospital where she spoke to the treating physician and met with the responding officers.
During cross-examination, B.A. admitted that on her birthday, January 8, 2015, she drank an entire bottle of vodka and the beer that was in Diaz's refrigerator. While B.A. conceded that she possibly had consumed a significant amount of alcohol that day, she did not believe that she was intoxicated because she had eaten. B.A. denied that she had an alcohol problem, although she conceded that she was an everyday drinker while going through menopause. She denied having ever blacked out from drinking, but admitted she had previously suffered from dehydration. B.A. further testified that sometime between her arrival in New Orleans on December 31, 2014 and January 9, 2015, she had been drinking and had fallen while at a bus stop and was treated by paramedics at the scene.
B.A. also testified on cross-examination that, contrary to the EMS report noting the victim to be accompanied by several suitcases, she only had a single bag of clothes and a Nutribullet blender with her when she left Diaz's trailer on the morning of January 9, 2015. She claimed that she left much of her clothing behind, as well as her medicines, a towel, and all the food at the trailer.
During further cross-examination, B.A. testified that the bump (hematoma) on the left side of her forehead that was noted in the medical records was not as a consequence of the assault by Diaz on January 9, 2015. According to B.A., the bump was the result of an accident that occurred when she was living in Florida where she had fallen onto a tile floor while getting out of the shower. She denied that she had been drinking when this fall occurred.
On redirect, B.A. viewed a police photograph of the black plastic grocery bag which Diaz had in his possession when he was arrested. B.A. testified that the bag looked like the one Diaz used during the assault. B.A. also described her employment in Texas, stating that she was working at a Macy's and at a Taekwondo school. During their time together in Texas, B.A. claimed that she and Diaz lost an apartment because they could not afford to pay the rent, which resulted in her having to stay in a women's shelter while continuing to work. Despite stating that she was living in a shelter in Texas, B.A. testified that she had money in a bank account when she arrived in New Orleans. She claimed that Diaz forced her to close the account and that he spent her money. [. . .]

State v. Diaz, No. 2017-KA-0324, 2017 WL 3887341, at *1-*5 (La.App. 4th Cir. Sep. 6, 2014) (footnotes omitted); State Record Volume 1 of 7, Louisiana Fourth Circuit Opinion, 2017-KA-0324, pages 1-10, September 6, 2017.

         Diaz was tried before a jury on the first two counts on October 7 and 8, 2015, and found guilty as charged of second degree battery and guilty of the responsive verdict of attempted manslaughter.[4] At a February 29, 2016 hearing, the state trial court denied Diaz's motion for a new trial.[5] After waiver of legal delays, the court sentenced Diaz concurrently to 8 years in prison for second degree battery without benefit of parole, probation or suspension of sentence and 10 years in prison for attempted manslaughter.[6]

         On direct appeal to the Louisiana Fourth Circuit, Diaz's appointed counsel asserted two errors: (1) the evidence was insufficient to support the verdicts because the State failed to prove the victim suffered serious injury or that defendant had specific intent ...


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