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Green v. McCain

United States District Court, W.D. Louisiana, Lafayette Division

January 31, 2019


         SEC P




         Pro se petitioner Chonquaro Green (“Green”), an inmate in the custody of Louisiana's Department of Corrections, filed the instant petition for writ of habeas corpus, pursuant to 28 U.S.C. §2254, on June 15, 2018. [Rec. Doc. 1] Petitioner attacks his 2013 conviction for forcible rape and the subsequent thirty year sentence imposed thereon by the 27th Judicial District Court, St. Landry Parish. This matter has been referred to the undersigned for review, report, and recommendation in accordance with the provisions of 28 U.S.C. §636 and the standing orders of the Court.


         The Louisiana Third Circuit Court of Appeal, on direct appeal, succinctly summarized the facts of the matter before this court as follows: “Defendant forced the victim into his truck while armed with a hatchet. He raped the victim twice.” State v. Green, 2014-334 (La.App. 3 Cir. 10/1/14).

         Petitioner, Chonquaro Green, was charged by bill of indictment with aggravated kidnapping, a violation of La.R.S. 14:44, and aggravated rape, a violation of La.R.S. 14:42. On July 25, 2013, a jury found him not guilty of the charge of aggravated kidnapping and guilty of the responsive verdict of forcible rape on the second count. After a hearing on a habitual offender bill, the trial court found Green to be a second offense sex offender, under La.R.S. 15:529.1, and on January 16, 2014, he was sentenced to thirty years at hard labor without benefit of probation, parole, or suspension of sentence.

         He appealed his conviction and sentence and, on October 1, 2014, the Third Circuit Court of Appeals affirmed both. State of Louisiana v. Chonquaro Green, 2014 WL 4926196 (La.App. 3 Cir. 10/1/2014), 2014-334. He did not apply for writs of certiorari in the Louisiana Supreme Court [Rec. Doc. 1, p. 2, ¶ 9(g)].

         On March 24, 2015, Petitioner filed an application for post-conviction relief in the 27th Judicial District Court, raising the following claims: (1) Petitioner was denied the right to “effective representation of counsel under the 6th and 14thAmendments to the U.S Constitution by overruling counsel's objection to late witness disclosure, ” (2) Petitioner was denied due process of law by being tried and convicted by a biased jury when a prior relationship existed between one juror and a witness of prior bad acts disclosed by the state prior to jury voir dire;” and (3) Petitioner was denied Due Process of Law when witnesses of prior bad acts testimony went beyond the scope of mere admission of a prior bad act and went into intricate detail of the alleged event itself.” [Rec. Doc. 1-3, p.56.] The trial court denied his application on April 29, 2015. [Rec. Doc. 1-3, pp. 67-68.]

         On June 11, 2015, Petitioner filed a writ application in the Third Circuit Court of Appeal, Docket No. KH-15-00552, which was denied, in part, granted, in part, and made peremptory, in part. [Rec. Doc. 1-3, p. 69] On October 22, 2015, the appellate court denied writs on the issue of ineffective assistance of counsel, noting that petitioner conceded that his attorney was not at fault. Because the issue of the State's failure to give notice of calling a witness at sentencing to testify as to other crimes is not a grounds for post-conviction relief under La. C.Crim.P. 930.3, the court held that this claim was precluded from review. Finally, with respect to the argument that petitioner was denied due process by being tried and convicted by a biased juror, the father of a victim previously assaulted by petitioner, who later testified at his sentencing hearing, the trial court was ordered to hold an evidentiary hearing.

         On February 18, 2016, an evidentiary hearing was held before the trial court. [See Rec. Doc. 1-3, pp. 17-40.] Petitioner was represented by counsel and at the conclusion of the testimony, the trial court found that the juror at issue was not aware prior to the trial that the petitioner was the perpetrator of the assault on his daughter. Id. at p. 22. Petitioner sought writs in the Third Circuit, in Docket Number KH-16- 00608, which was denied on February 22, 2107. [Rec. Doc. 1-3, p. 71.] His writ application to the Louisiana Supreme Court [Rec. Doc. 1-3, pp. 4-13] was denied on May 25, 2018. [Rec. Doc. 1-3, pp. 2-3.]

         Petitioner filed the instant petition for habeas relief on June 15, 2018. He makes the following arguments: “(1) Petitioner was denied 5th and 14th Amendments Due Process protection against being tried and convicted by a biased jury, where the state knew prior to voir dire, but withheld from defense, that one of the jurors were the father of the state witness whom would be testifying during sentencing concerning an incident in which she was allegedly raped by defendant; and (2) Petitioner was constructively denied 6th Amendment right to effective assistance of counsel, by the state's late or no notice that other crimes evidence would be offered by the juror Carroll Soileau, Sr. Daughter Jessica Soileau, at petitioner's sentencing hearing, that ‘Petitioner had raped her,' and by the trial court's denial of continuance or for a seven day recess.” [Rec. Doc. 1-2, p. 3.]

         Law and Analysis

         I. Standard of Review - 28 U.S.C. § 2254

         The Antiterrorism and Effective Death Penalty Act (“AEDPA”) of 1996, 28 U.S.C. § 2254, governs habeas corpus relief. The AEDPA limits how a federal court may consider habeas claims. After the state courts have “adjudicated the merits” of an inmate's complaints, federal review “is limited to the record that was before the state court[.]” Cullen v. Pinholster, 31 S.Ct. 1388');">131 S.Ct. 1388, 1398 (2011). An inmate must show that the adjudication of the claim in state court:

(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or
(2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.

28 U.S.C. § 2254(d)(1)-(2).

         A decision is “contrary to” clearly established Federal law “if the state court arrives at a conclusion opposite to that reached by . . . [the Supreme Court] on a question of law or if the state court decides a case differently than [the Supreme Court] has on a set of materially indistinguishable facts.” Dowthitt v. Johnson, 30 F.3d 733');">230 F.3d 733, 740-41 (5th Cir. 2000) (quoting Williams v. Taylor, 362');">529 U.S. 362 (2000)). “The ‘contrary to' requirement refers to holdings, as opposed to the dicta, of . . . [the Supreme Court's] decisions as of the time of the relevant state court decision.” Id. at 740. Under the “unreasonable application” clause, a federal habeas court may grant the writ only if the state court “identifies the correct governing legal principle from . .. [the Supreme Court's] decisions but unreasonably applies the principle to the facts of the prisoner's case.” Id. at 741.

         Section 2254(d)(2) speaks to factual determinations made by the state courts. Federal courts presume such determinations to be correct; however, a petitioner can rebut this presumption by clear and convincing evidence. 28 U.S.C. § 2254(e)(1).


         Statute ...

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