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Alexander v. Vannoy

United States District Court, E.D. Louisiana

January 30, 2019

JAMARIO ALEXANDER
v.
DARREL VANNOY, WARDEN

         SECTION “J” (4)

          REPORT AND RECOMMENDATION

          KAREN WELLS ROBY CHIEF 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 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, the Court has determined that this matter can be disposed of without an evidentiary hearing. See 28 U.S.C. § 2254(e)(2) (2006).[1]

         I. Factual and Procedural Background

         The petitioner, Jamario Alexander (“Alexander”), is a convicted inmate incarcerated in the Louisiana State Penitentiary in Angola, Louisiana.[2] On September 15, 2011, Alexander was indicted by a Jefferson Parish Grand Jury for the second degree murder of William Kerner and with one count of possession of a firearm by a convicted felon.[3]

         The record reflects that, on May 27, 2011, at 8:27 a.m. and 8:46 a.m., a man calling himself “Carlos” called United Cab from 504-287-8932 to request that a taxicab be dispatched to 4121 d'Hemecourt in New Orleans, Louisiana.[4] According to United Cab's records, the driver, William Kerner, IV, was dispatched and picked-up the man.

         At 9:14 a.m. that morning, Shawn Deggins, called 911 from his home at 204 Adonis Way in Terrytown to report that a cab driver had been shot and was lying in the street in front of 211 Adonis Way. Deggins reported that he heard multiple gunshots. When he looked out of his window, he saw a man with a gun run down Adonis Way and jump a fence at the back of an empty lot. Deggins told police that the man, whom he saw from “the back primarily, ” was wearing a black t-shirt, dark pants, and a Hornets cap turned backwards.

         Captain Dennis Thornton, the Commander of the Jefferson Parish Sheriff's Office (“JPSO”) Homicide Division, arrived to find Kerner lying face down with his United Cab identification badge next to him. It would later be discovered by deputies that Kerner was a “whistleblower” who was helping the New Orleans Mayor's Office investigate corruption in the New Orleans Taxicab Bureau. The Dodge van painted with the logo of United Cab was found three houses down where it collided with a pickup truck.

         Based on information obtained from United Cab, the officers determined that the call for the cab was placed from a cell phone registered to Mary Alexander. Ms. Alexander later told police she purchased the phone for her grandson, Jamario Alexander. The telephone records showed that Alexander called his girlfriend, Brittney Jones, at 9:11 a.m., which was just minutes after the shooting, asking her to pick him up in Terrytown. When Jones picked him up, Alexander was wearing a black shirt, black jeans, and a Hornets cap.

         When Jones and Alexander arrived at her home in Algiers, Alexander immediately discarded his t-shirt and hat in a trash bag in her kitchen. He also emptied the clip of his gun which only had a few remaining bullets. After Alexander left Jones's house, he texted her to say that his phone and gun were behind her sofa. He later returned to Jones's house to retrieve those items.

         JPSO deputies were able to track Alexander through his cell phone activity. He was arrested while hiding in an apartment in which the deputies found a Smith and Wesson 9-mm handgun, which as it turned out was not the murder weapon. After his arrest, the deputies determined that Alexander had two prior felony convictions in Orleans Parish. In 2005, he pleaded guilty to distribution of cocaine, and in 2006, he pleaded guilty to possession of cocaine.

         In his second statement to police after his arrest, Alexander told officers that, on the day of the murder, his mother dropped him off at his grandmother's house on d'Hemecourt where he called for a cab to pick him up a few houses down. He directed the cab driver to Adonis Way, even though he did not know anyone on that street. Alexander stated that he intended to “skip out” on the fare, but when the driver asked for the money, he panicked and shot at the driver multiple times. The driver exited the vehicle through the driver's side door, and Alexander climbed out of the same door. Alexander ran down the street and jumped a fence behind the houses and walked toward Terrytown, where he had his girlfriend pick him up.

         Alexander was tried before a jury on May 8 through 10, 2012, and found guilty as charged on both counts.[5] On May 17, 2012, the Trial Court denied Alexander's motion for a new trial.[6] After waiver of legal delays, the Court sentenced Alexander to consecutive terms of life in prison for second degree murder and 20 years for possession of a weapon, each to be served without benefit of parole, probation, or suspension of sentence.[7]

         On June 27, 2012, Alexander's counsel filed a second motion for new trial suggesting that the victim may have been killed in connection with his role in the cab bureau investigation.[8]Following a hearing on September 12, 2012, the state trial court denied the motion.[9]

         On direct appeal, Alexander's appointed counsel asserted two errors:[10] (1) the trial court erred when it denied the motion for new trial based on newly discovered evidence, and in light of the insufficient evidence to support the felon in possession conviction; and (2) the trial court erred when it denied the motion for mistrial or failed call for a new jury panel after the potential jurors heard the victim's daughter scream at the defendant in the courtroom. Alexander filed two pro se supplemental briefs asserting the following claims:[11] (1) the evidence was insufficient to support the second degree murder verdict; (2) he was denied the right to testify; (3) he was denied the right to present a defense because of funding issues; (4) he was subjected to an unreasonable arrest; (5) the out-of-court identification process was unconstitutional and the in-court identification was not reliable; and (6) he was denied a fair trial because of biased jurors, and the trial court's denial of the mistrial was an abuse of discretion.

         On May 16, 2013, the Louisiana Fifth Circuit affirmed Alexander's convictions and sentences finding no merit in the claims asserted by counsel and in three of the claims asserted pro se by Alexander.[12] The Court also specifically held that Alexander's third claim asserting insufficient funds to conduct DNA testing was procedurally barred for lack of a contemporaneous objection, and otherwise, was without merit. The Court also found that Alexander's fourth and fifth claims of unlawful arrest and improper identification processes also were procedurally defaulted and not preserved for appeal.

         The Louisiana Supreme Court denied Alexander's related writ application on January 10, 2014, without stated reasons.[13] Alexander's convictions and sentences were final 90 days later, on April 10, 2014, because he did not file for review with the United States Supreme Court. Ott v. Johnson, 192 F.3d 510, 513 (5th Cir. 1999) (period for filing for certiorari with the United States Supreme Court is considered in the finality determination under 28 U.S.C. § 2244(d)(1)(A)); U.S. S.Ct. Rule 13(1).

         Almost one year later, on April 2, 2015, Alexander signed and submitted to the state trial court an application for post-conviction relief asserting four grounds for relief:[14] (1) the state trial court abused its discretion in failing to sever the counts; (2)(a) he was denied effective assistance of trial counsel where counsel failed to investigate the other suspect, the cars seen leaving the scene, the cab industry corruption, and the gun found in the closet, failed to move to sever the counts, and failed to request a gun residue test or hire a crime scene expert; (2)(b) he was denied effective assistance of counsel on appeal when counsel failed to challenge the trial court's failure to sever the counts; (2)(c) the cumulative effect of the ineffective assistance of trial and appellate counsel violated his rights; (3) Louisiana law on non-unanimous jury verdicts is unconstitutional; and (4) he was denied due process by the discriminatory grand jury pool selection practices.

         On July 28, 2015, the state trial court denied relief finding that the first claim was procedurally barred under La. Code Crim. P. art. 930.4(C).[15] The Court also held that claims two, three, and four were procedurally barred under La. Code Crim. P. art. 930.4(B). The Court further found no merit in the ineffective assistance of counsel claims under Strickland v. Washington, 466 U.S. 668 (1984).

         On September 29, 2015, the Louisiana Fifth Circuit denied Alexander's related writ application finding no error in the trial court's order.[16] On February 17, 2017, the Louisiana Supreme Court denied Alexander's subsequent writ application finding no error in the procedural dismissal of his claims under La. Code Crim. P. art. 930.4 or the denial of relief for ineffective assistance of counsel under Strickland.[17]

         II. Federal Petition

         On June 12, 2018, after correction of certain deficiencies, the clerk of this Court filed Alexander's federal petition for habeas corpus relief in which he asserted the following grounds for relief:[18] (1) the state trial court abused its discretion by denying severance of the offenses; (2)(a) he was denied effective assistance of counsel when trial counsel failed to investigate the other suspect, the cars seen leaving the scene, the cab industry corruption, and the gun found in the closet, failed to move to sever the counts, and failed to request a gun residue test or hire a crime scene expert; (2)(b) he was denied effective assistance of counsel on appeal when counsel failed to challenge the trial court's failure to sever the counts; (2)(c) the cumulative effect of the ineffective assistance of trial and appellate counsel violated his rights; (3) the non-unanimous verdict rule in Louisiana is unconstitutional; and (4) the state procedure for selection of grand jury pools has a discriminatory effect.

         The State filed a response in opposition to Alexander's petition asserting that the petition was not filed timely and that claims one, three, and four are procedurally barred from review.[19]Alexander replied to the State's opposition response asserting that his untimeliness should be excused, because his efforts to obtain ...


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