United States District Court, E.D. Louisiana
REPORT AND RECOMMENDATION
C. WILKINSON, JR., UNITED STATES MAGISTRATE JUDGE
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). 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.
FACTUAL AND PROCEDURAL BACKGROUND
petitioner, Frank Diaz, is incarcerated in the Raymond
Laborde Correctional Center in Cottonport,
Louisiana. On January 21, 2015, Diaz was charged by
bill of information in Orleans Parish with second degree
battery, attempted second degree murder and
extortion. 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
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
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.
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. At a February 29, 2016 hearing, the state
trial court denied Diaz's motion for a new
trial. 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
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 ...