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Joseph v. Vannoy

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

February 7, 2019

DEWAYNE LAKEITH JOSEPH #579562
v.
DARRYL VANNOY

          JUNEAU JUDGE.

          REPORT AND RECOMMENDATION

          CAROL B. WHITEHURST UNITED STATES MAGISTRATE JUDGE.

         Pro se petitioner Dewayne Lakeith Joseph (“Joseph”), an inmate in the custody of Louisiana&#3');">39;s Department of Corrections, filed the instant petition for writ of habeas corpus pursuant to 28 U.S.C. §2254 on November 2, 2017. Petitioner attacks his 2011 conviction for first degree murder, and the life sentence imposed thereon by the Sixteenth Judicial District Court, St. Martin Parish. This matter has been referred to the undersigned for review, report, and recommendation in accordance with the provisions of 28 U.S.C. §63');">36 and the standing orders of the Court.

         Statement of the Case

         On February 2, 2011, a jury found Joseph guilty of one count of first degree murder in the Sixteenth Judicial District Court, Parish of St. Martin, and he was subsequently sentenced to life in prison.

         Petitioner filed a direct appeal in the Third Circuit Court of Appeal, alleging a sole assignment of error that the evidence adduced at trial was insufficient to sustain his first degree murder conviction. [Rec. Doc. 1-3');">3, pp. 6-16');">16]. On March 6, 2013');">3, the Third Circuit affirmed the conviction. State of Louisiana v. Joseph, 12-466, (La.App. 3');">3 Cir.), 29 So.3');">3d 69');">129 So.3');">3d 69; see also Rec. Doc. 1-3');">3, pp. 17-24]. Petitioner applied for writs of certiorari in the Louisiana Supreme Court, and on October 25, 2013');">3, his writ application was denied without comments. State of Louisiana v. Joseph, 2013');">3-KO-0658 (La. 10/25/13');">3), 24 So.3');">3d 1091');">124 So.3');">3d 1091. He did not apply for certiorari in the United States Supreme Court. [Doc. 1, p. 3');">3, ¶9(h)]

         On September 3');">30, 2014, Joseph filed his first Application for Post Conviction Relief in the trial court, asserting that trial counsel was ineffective for failing to investigate every element of his mental health history. [Rec. Doc. 1-3');">3, pp. 25-70]. The trial court denied his application on December 4, 2015. [Rec. Doc. 1-3');">3, p. 72-75]. On January 12, 2015, he filed a writ application in the Third Circuit Court of Appeal, bearing Docket number KH-15-00026, which was denied on May 7, 2015. [Rec. Doc. 1-3');">3, p. 77]. Petitioner sought supervisory and/or remedial writs in the Louisiana Supreme Court; which were denied on May 20, 2016');">16. State ex rel Dewayne Lakeith Joseph v. State of Louisiana, 2016');">16-KH-1126 (La. 5/20/16');">16), 3');">3d 572');">191 So.3');">3d 572.

         On September 3');">30, 2015, petitioner filed a second post-conviction application in the trial court, while his first post-conviction application was pending review in the Louisiana Supreme Court. Therein, he raised claims of counsel&#3');">39;s ineffectiveness; specifically, that counsel failed to investigate the insanity defense and petitioner&#3');">39;s competency to proceed to trial, that trial counsel failed to enter a dual plea of not guilty and not guilty by reason of insanity and that counsel failed to object to the court not raising his competency to proceed sua sponte. On December 23');">3, 2015, the trial court denied petitioner&#3');">39;s second application, finding all claims procedurally barred under La. C.Cr.P. article 93');">30.4(D), which prohibits review of a successive application which fails to raise a new or different claim. [Rec. Doc. 1-3');">3, pp. 123');">3-124]. Petitioner sought writs in the Third Circuit Court of Appeal on January 27, 2016');">16. The Third Circuit, denying writs on May 17, 2016');">16, relied on the trial court&#3');">39;s findings that the first two claims were repetitive, but addressed and rejected petitioner&#3');">39;s third claim for relief (ineffective assistance of counsel for failing to raise petitioner&#3');">39;s mental capacity to proceed and for not objecting when the trial court failed to do so sua sponte) on the merits, citing Strickland v. Washington, because petitioner&#3');">39;s “capacity to proceed was fully litigated prior to trial and resulted in the exclusion of the death penalty.” [Rec. Doc. 1-3');">3, p. 126]. He sought supervisory and/or remedial writs in the Louisiana Supreme Court, which were denied on September 29, 2017. State ex rel Dewayne Lakeith Joseph v. State of Louisiana, 2017-KH-1087 (La. 9/29/17), 227 So.3');">3d 264; see also Rec. Doc. 1-3');">3, p. 148. In denying petitioner&#3');">39;s writ, the court held that he had “previously exhausted his right to state collateral review, ” citing their ruling on his first post-conviction application.

         On November 2, 2017, Joseph filed the instant petition, which raises the following claims: (1) insufficiency of the evidence; (2) ineffective assistance of counsel due to counsel&#3');">39;s failure to thoroughly investigate every element of petitioner&#3');">39;s mental health history; (3');">3) ineffective assistance of counsel due to counsel&#3');">39;s failure to do a pre-trial investigation to discover medical records and/or interview potential expert witnesses to illustrate the extent of petitioner&#3');">39;s mental illness; (4) ineffective assistance of counsel due to counsel&#3');">39;s failure to enter a dual plea of not guilty and not guilty by reason of insanity; (5) ineffective assistance of counsel due to counsel&#3');">39;s failure to object to the trial court not raising the issue of petitioner&#3');">39;s mental incapacity to proceed sua sponte.[1]

         Law and Analysis

         I. Statute of Limitations

         In 1996, as part of the Antiterrorism and Effective Death Penalty Act

         ("AEDPA"), Congress enacted 28 U.S.C. § 2244(d), which provides a one-year statute of limitations for filing applications for writs of habeas corpus by persons in custody pursuant to the judgment of a state court. This limitations period generally runs from “the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review. . . .” 28 U.S.C. § 2244(d)(1)(A). Federal courts may raise the one-year limitations period sua sponte. See Kiser v. Johnson, 16');">163');">3 F.3');">3d 3');">326');">16');">163');">3 F.3');">3d 3');">326 (5th Cir. 1999).

         The statutory tolling provision of 28 U.S.C. § 2244(d)(2) provides that the time during which a properly filed application for post-conviction relief was pending in state court is not counted toward the limitations period. See 28 U.S.C. § 2244(d)(2); Ott v. Johnson, 192 F.3');">3d 510, 512 (5th Cir. 1999); Fields v. Johnson, 159 F.3');">3d 914, 916');">16 (5th Cir. 1998). However, any lapse of time before the proper filing of an application for post-conviction relief in state court is counted against the one-year limitation period. See Villegas v. Johnson, 3');">3d 467');">184 F.3');">3d 467, 472 (5th Cir. 1999) (citing Flanagan v. Johnson, 3');">3d 196');">154 F.3');">3d 196, 199 (5th Cir.1998)).

         Petitioner&#3');">39;s conviction became final for AEDPA purposes on January 23');">3, 2014, upon the expiration of the 90-day period for applying for certiorari with the United States Supreme Court. Under 28 U.S.C. § 2244(d)(1) petitioner had one year, or until January 23');">3, 2015, within which to file his federal habeas petition.

         Petitioner&#3');">39;s first application for post-conviction relief was filed on October 6, 2014, after 256 days accrued against §2244&#3');">39;s one-year limit. See Rec. Doc. 1-3');">3, p. 123');">3. After moving through the Louisiana state courts, his writ application was denied by the Louisiana Supreme Court on May 20, 2016');">16. While that application was pending, petitioner filed a second application for post-conviction relief on September 3');">30, 2015. After moving through the Louisiana state courts, this writ application was denied by the Louisiana Supreme Court on September 29, 2017. While it was ultimately determined that this application was successive, it was properly filed and continued to toll the statute of limitations under the AEDPA. See Mathis v. Thaler, 16');">16 F.3');">3d 461');">616');">16 F.3');">3d 461, 472 (5th Cir. 2010). His petition was filed in this court on November 2, 2017, after a total of 290 days had accrued against §2244&#3');">39;s one-year limit. Thus, this matter is timely.

         II. Procedural Default

         The State argues that claims 3');">3, 4 and 5 are untimely and unexhausted. For the reasons stated above, the Court finds that claims 3');">3, 4, and 5 are timely. However, the Court does find that these claims are procedurally defaulted.

         While petitioner&#3');">39;s claims are all timely, claims three and four, that he was denied ineffective assistance of counsel for various reasons regarding his mental capacity, are procedurally defaulted. “A fundamental prerequisite to federal habeas relief under Section 2254 is the exhaustion of all claims in state court prior to requesting federal collateral relief.” Preiser v. Rodriguez, 441 U.S. 475, 500 (1973');">3); Whitehead v. Johnson, 157 F.3');">3d 3');">384, 3');">387 (5th Cir. 1998) (citing Rose v. Lundy, 455 U.S. 509, 519-20 (1982)); Nobles, 127 F.3');">3d at 419. “A federal habeas petition should be dismissed if state remedies have not been exhausted as to all of the federal court claims.” Whitehead, 157 F.3');">3d at 3');">387 (citing 28 U.S.C. § 2254(b)(1)(A); Rose, 455 U.S. at 519-20). In claims three and four of the instant petition, the petitioner contends that he was denied ineffective assistance of counsel for various reasons regarding his mental capacity. These claims were raised in his second application for post-conviction relief on September 3');">30, 2015, which was deemed successive by the trial court. The Third Circuit Court of Appeal deemed claims three and four, related to petitioner&#3');">39;s mental health history, substance abuse, failure to enter an insanity defense and failure to present an insanity defense, successive. While the Third Circuit did address the merits of claim five, denying on the merits petitioner&#3');">39;s claim that his attorney was ineffective for failing to raise his mental capacity to proceed and for not objecting when the trial court failed to do so sua sponte, the Louisiana Supreme Court denied certiorari on claims 3');">3, 4, and 5, based on petitioner, “… previous[ly] exhaust[ing] his right to state collateral review.”

         The state courts relied on La. Code Crim. P. Art. 93');">30.4(D) in denying petitioner&#3');">39;s second post-conviction application as successive because he raised the same claims in his first post-conviction application. "The bars to repetitive claims and successive petitions found in La. Code Crim. P. Art. 93');">30.4 are clearly independent state law procedural bases for denying review of an inappropriately raised post-conviction claim," and "the bar in Article 93');">30.4(D) prevents further review based on the assumption that an issue was addressed in a prior proceeding and is now repetitive. . . ." Nicholson v. Michael, 2006 U.S. Dist. LEXIS 55297, 2006 WL 20883');">306, *5, (E.D. La. June 5, 2006) (No. Civ.A. 05-6490) (emphasis in original); cf. Graham v. Johnson, 16');">168 F.3');">3d 762');">16');">168 F.3');">3d 762, 774 n. 7 (5th Cir. 1999) [*3');">31] (citing Felker v. Turpin, ...


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