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Ventura v. Vannoy

United States District Court, E.D. Louisiana

May 23, 2019

RIGOBERTO VENTURA
v.
DARREL VANNOY, WARDEN

          REPORT AND RECOMMENDATION

          MICHAEL B. NORTH, UNITED STATES MAGISTRATE JUDGE

         This matter was referred to the undersigned United States Magistrate Judge to conduct a hearing, 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 in the United States District Courts. 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). For the following reasons, IT IS RECOMMENDED that the petition for habeas corpus relief be DISMISSED WITH PREJUDICE.

         Procedural History

         Petitioner, Rigoberto Ventura, is a convicted inmate currently incarcerated at the Louisiana State Penitentiary in Angola, Louisiana. On November 15, 2011, he was charged by bill of indictment with aggravated rape of G.L. On October 18, 2012, the bill was amended to include a count of sexual battery of H.W. (referred to by the time of trial as H.G.), a victim under the age of 13.[1] On the morning of voir dire, defense counsel sought various sanctions including severance of the counts or continuance, in response to the State's failure to provide certain discovery pertaining to the sexual battery charge. The request was denied. The State obtained the available evidence and turned it over to the defense, and trial proceeded as scheduled. A jury subsequently found Ventura guilty as charged on both counts.[2]

         On July 13, 2015, his motions for post-verdict judgment of acquittal and for new trial were denied, and he was sentenced to life imprisonment at hard labor without benefit of probation, parole or suspension of sentence for aggravated rape and a term of 50 years imprisonment at hard labor, with the first 25 years to be served without benefit of probation, parole or suspension of sentence for the sexual battery, to run consecutively. His motion to reconsider the sentence was also denied.[3]

         On direct appeal, he assigned as grounds for error the trial court's denial of his motion to sever the counts and alternative motion to continue the trial. He argued that in light of evidence only recently disclosed to the defense (a Texas Office of Community Services ("OCS") file in Texas on H.G. and a statement made by H.G.'s mother in Texas), the trial court should have granted his request to sever the counts and proceed only with the aggravated rape count, or alternatively, should have allowed a one-day continuance to allow the defense additional time to obtain the evidence relevant to the sexual battery count. On April 15, 2016, the Louisiana First Circuit Court of Appeal affirmed his convictions and sentences.[4] On April 24, 2017, the Louisiana Supreme Court denied his application for writ of certiorari.[5]On or about May 8, 2017, Ventura submitted an application for post-conviction relief to the state district court.[6] In that application, he asserted the following claims: (1) he was denied effective assistance of trial counsel when Ventura failed to subpoena records or to object to prejudicial remarks by the prosecutor during closing argument; (2) denial of transcripts and the right to full appellate review; (3) the prosecutor used peremptory challenges in a discriminatory manner during voir dire; (4) the State was allowed 13 peremptory challenges; (5) he was denied a fair trial due to prosecutorial misconduct during closing argument; and (6) he was denied the right to testify. He also filed a motion for production of documents requesting a free copy of the record. On May 22, 2017, the state district court denied the motion and his application for post-conviction relief.[7] The district court explained that the claims and factual allegations raised on his behalf by inmate substitute counsel inexplicably mirrored those in a different Angola inmate's entirely unrelated application for post-conviction relief submitted about the same time to the same division of court. In denying relief, the district court explained that "providing a laundry list of claims that might apply in some case, to some defendant, as a result of some trial, does not satisfy the requirement of 'particularized need' necessary to grant Defendant the relief he seeks."[8]

         On August 7, 2017, Ventura's related supervisory writ application was denied by the Louisiana First Circuit Court of Appeal.[9] The court of appeal doubted the veracity of the allegations for the reasons set forth by the state district court. The appellate court reasoned:

Pursuant to article 926(C) of the Code of Criminal Procedure, a petitioner is required to provide an affidavit that the allegations contained in the petition are true to the best of his information and belief. This court is under the impression that the allegations in one or both of the applications for postconviction relief appear to be false.

         The court of appeal rejected Ventura's application pursuant to Louisiana Code of Criminal Procedure article 926(E), which provides that inexcusable failure to comply with the provisions of article 926 may be a basis for dismissal. The court's ruling also specifically reserved for him the opportunity to file a new application for post-conviction relief in the state district court raising claims tailored specifically to his own case and to seek supervisory writs from any adverse ruling with no bar imposed for repetitiveness or successiveness. Ventura however did not pursue a new application for post-conviction relief. Instead, he filed a related supervisory writ application with the Louisiana Supreme Court. On November 5, 2018, the Louisiana Supreme Court issued a one-word denial.[10]

         Ventura subsequently filed his federal application for habeas corpus relief asserting six claims for relief: (1) the trial court erred in denying his motion to sever the counts, or in the alternative, denying his motion to continue; (2) trial counsel was constitutionally ineffective for failing to subpoena G.L.'s counseling records; (3) he was denied the right to transcripts and full appellate review; (4) the prosecutor used peremptory challenges in a discriminatory manner; (5) prosecutorial misconduct during closing argument denied him a fair trial; and (6) he was denied the right to testify.[11] The State's response concedes that the federal application is timely and that his claims were exhausted in the state courts.[12] As to claims two through six, specifically, the State argues that they should be rejected as procedurally defaulted or alternatively denied on the merits. Ventura filed a reply contesting the State's procedural default argument and reasserting the merit of his claims for relief.[13]

         Facts

         On direct appeal, the Louisiana First Circuit briefly summarized the facts:

At trial, nineteen-year-old G.L. testified that when he was between the ages of six and ten years old, the defendant sexually abused him approximately fifteen times. Specifically, G.L. and the defendant performed oral sex on each other. The abuse took place at G.L.'s grandmother's house in Slidell. G.L. disclosed the abuse years later during counseling.
After learning of G.L.'s accusations against the defendant, H.G.'s mother questioned her children about whether anything had happened to them. H.G.'s mother was divorced from H.G.'s father, the defendant's brother, but the children, who lived with their mother in Texas, visited with their father and saw the defendant during the summers. H.G. disclosed that the defendant had inappropriately touched her during one of those visits. At trial, twelve-year old H.G. testified that the defendant touched her vagina on two occasions while she visited his home in Bush, during the summer of 2011.[14]

         Preliminary Review-Procedural Default

         As a preliminary matter, the Court considers the State's assertion that claims two through six, which Ventura raised on collateral review, were denied as procedurally barred under state law by the state courts and thus procedurally defaulted on federal review. The State relies on the Louisiana First Circuit's writ denial pursuant to Louisiana Code of Criminal Procedure articles 926(C) and 926(E). Article 926 sets forth pleading requirements for an application for post-conviction relief. Subsection C provides that the application must be signed by the petitioner and be accompanied by his affidavit that the allegations contained in the petition are true to the best of his information and belief. Ventura's application contained the verification statement; however, the appellate court denied relief based upon its impression that under the circumstances the allegations in his application appeared to be false, contrary to the verification. The appellate court thus summarily denied relief pursuant to subsection E, which permits dismissal for inexcusable failure of the petitioner to comply with the provisions of article 926. The Louisiana Supreme Court denied relief without explanation.

         Under the procedural-default doctrine, federal courts are precluded from considering claims on federal habeas review where the last state court to consider the claims based its denial of relief on an independent and adequate state-law procedural ground. Coleman v. Thompson, 501 U.S. 722, 729-30 (1991). To satisfy the "independent" and "adequate" requirements, the state court's dismissal must clearly and expressly reflect that it rests on a state procedural bar, and the bar must be strictly or regularly applied by state courts to the vast majority of similar claims. Finley v. Johnson, 243 F.3d 215, 218 (5th Cir. 2001).

         With little discussion or citation of authority, the State relies on the last reasoned decision by the Louisiana First Circuit and argues generally, without reference to any specific subsection, that Louisiana Code of Criminal Procedure article 926 is "presumptively independent and adequate."[15] In his traverse, Ventura emphasizes a discrepancy in the dismissal for failing to comply with Louisiana Code of Criminal Procedure article 926 (C) ("[t] he application shall be signed by the petitioner and accompanied by his affidavit that the allegations contained in the petition are true to the best of his information and belief"), a requirement with which he did technically comply even if the appellate court disputed the veracity of the allegations made on his behalf by inmate counsel substitute.[16] This Court's independent review found no similar application of the rule in this context by Louisiana courts as its usual practice to support a conclusion that the rule was firmly established and regularly followed. Walker v. Martin, 562 U.S. 307, 316 (2011). Thus, considering Ventura's traverse, which the Court broadly construes as opposing the presumptively adequate nature of the state procedural bar imposed, and the absence of a well-supported, compelling argument by the State in favor of procedural default, the Court finds insufficient grounds exist for refusing to reach the merits of five federal claims for relief presented by Ventura on federal habeas review. The Court turns now to the State's alternative argument for denial of the claims on the merits.

         Standards of Review on the Merits

         Title 28 U.S.C. § 2254(d)(1) and (2), as amended by The Antiterrorism and Effective Death Penally Act of 1996 (AEDPA), provides the applicable standards of review for pure questions of fact, pure questions of law, and mixed questions of both. A state court's purely factual determinations are presumed to be correct and a federal court will give deference to the state court's decision unless it "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)(2); see also 28 U.S.C. § 2254(e)(1) ("In a proceeding instituted by an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State court, a determination of a factual issue made by a State court shall be presumed to be correct. The applicant shall have the burden of rebutting the presumption of correctness by clear and convincing evidence."). With respect to a state court's determination of pure questions of law or mixed questions of law and fact, a federal court must defer to the decision on the merits of such a claim unless that decision "was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States." 28 U.S.C. § 2254(d)(1).

         The "'contrary to' and 'unreasonable application' clauses [of § 2254(d)(1)] have independent meaning." Bell v. Cone, 535 U.S. 685, 694 (2002). A state-court decision is "contrary to" clearly established precedent if the state court applies a rule that contradicts the governing law set forth in the United States Supreme Court's cases or if the state court confronts a set of facts that are materially indistinguishable from a decision of the United States Supreme Court and nevertheless arrives at a result different from United States Supreme Court precedent. Williams v. Taylor, 529 U.S. 362, 405-06 (2000); Wooten v. Thaler, 598 F.3d 215, 218 (5th Cir.), cert, denied, 131 S.Ct. 294 (2010). An "unreasonable application" of [United States Supreme Court] precedent occurs when a state court "identifies the correct governing legal rule... but unreasonably applies it to the facts of the particular state prisoner's case." Williams, 529 U.S. at 407-08; White v. Woodall, 134 S.Ct. 1697, 1706 (2014).

         It is well-established that "an unreasonable application is different from an incorrect one." Bell, 535 U.S. at 694. A state court's merely incorrect application of Supreme Court precedent simply does not warrant habeas relief. Puckett v. Epps, 641 F.3d 657, 663 (5th Cir. 2011) ("Importantly, 'unreasonable' is not the same as 'erroneous' or 'incorrect'; an incorrect application of the law by a state court will nonetheless be affirmed if it is not simultaneously unreasonable."). "[E]ven a strong case for relief does not mean the state court's contrary conclusion was unreasonable" under the AEDPA. Harrington v. Richter, 562 U.S. 86, 102 (2011). Section 2254(d) preserves authority to issue the writ in cases where there is "no possibility fairminded jurists could disagree that the state court's decision conflicts with [United States Supreme Court] precedents." Id. (emphasis added); see also Renico v. Lett, 559 U.S. 766, 779 (2010) ("AEDPA prevents defendants-and federal courts-from using federal habeas corpus review as a vehicle to second-guess the reasonable decisions of state courts.").

         The AEDPA's deferential standards of review apply only to claims adjudicated on the merits by the state courts. 28 U.S.C. § 2254(d); Henderson v. Cockrell, 333 F.3d 592, 597 (5th Cir. 2003). For claims that were not considered on the merits in the state courts, the pre-AEDPA standard of review applies. Id. at 598 (citing/ones v. Jones, 163 F.3d 285, 299- 300 (5th Cir. 1998) (applying de novo standard of review to ineffective assistance of counsel claims that were raised in state court, but not adjudicated on the merits)); see also Carty v. Thaler, 583 F.3d 244, 253 (5th Cir. 2009).

         Claims for Relief[17]

         A. Denial of Severance or Continuance

         Ventura claims that the trial court improperly denied his motion to sever the counts against him or alternatively continue the trial based on the State's belated disclosures of evidence pertaining to the sexual-battery offense. He also alleges that joinder of the count involving H.G. amounted to impermissible "other crimes" evidence that served only to bolster G.L's story and made it difficult for him to present separate defenses to each count.

         In rejecting the severance claim on direct appeal, the Louisiana First Circuit reasoned:

Prior to the start of the defendant's Monday trial, the defense made an oral motion for discovery sanctions, seeking to exclude any information learned from any investigation of the sexual battery of H.G. that was conducted in Texas, the state where H.G. was living at the time she disclosed the abuse. The defense contended that it was only on the previous Friday that the state provided it with a Texas police report that referenced statements by H.G.'s mother and a Texas Office of Community Services (OCS) case file on H.G. The defense asked that any information obtained in Texas be excluded based on the state's late disclosure of the evidence.
The state opposed the motion, arguing that it provided the defense with open file discovery, that the defense had only requested the Texas police report a week prior to trial, and that the state obtained the report on Friday and promptly turned it over to the defense. The state further argued that the forensic interview of H.G. that was conducted in Texas had been turned over to the defense as part of open file discovery. The state contended that it was unaware of any Texas OCS records prior to receiving the police report, therefore none had been sought or located.
The defense, the state, and the trial court then engaged in a discussion about the appropriate course of action. The defense again asked that the state not be allowed to use the evidence, and in the event that was not satisfactory to the trial court, asked that it consider severing the counts "so that the Texas count has no bearing on the Louisiana count." And if that was not satisfactory, the defense requested a one-day delay of the trial. When the trial court asked the reason for the proposed delay, the defense answered that it was to "assimilate the newfound information into [their] case," and indicated that during that time they may be able to obtain H.G.'s mother's recorded statement.
Considering the assertions of the defense and state, the trial court denied the request for sanctions, as well as the request for severance. The trial court indicated that they would only be conducting voir dire that day, and on the following day they would see whether the evidence had been obtained. The trial court stated it was effectively granting a recess of one day, but was denying the motion to continue the trial. Later that day, the state informed the court that it had obtained the statement made by H.G.'s mother and was in the process of providing it to the defense. The state also stated it had confirmed that Texas OCS had only "taken down a referral and sent the information to Louisiana" and that Louisiana's OCS had no complaints or investigations on file. The defense then indicated it was satisfied with the discovery.
Now, on appeal, the defendant asserts that the trial court erred denying the motion to sever, arguing that he was forced to go to trial without evidence that may have been exculpatory and may have aided him in impeaching witnesses or undermining the credibility of H.G.'s testimony. However, at trial, the state indicated it provided the defense with the statement by H.G.'s mother, and the defense indicated that it was satisfied with the discovery provided. The defendant further complains about a missing OCS file, but that issue was also resolved at trial, with the state confirming that there was no Texas OCS file, and the defendant indicating it was satisfied with the discovery provided. The trial court did not abuse its discretion in denying the motion to sever based on these evidentiary issues. Cf. State v. Allen, 95-1515 (La.App. 1 Cir. 6/28/96), 677 So.2d 709, 713, writ denied, 97-0025 (La. 10/3/97), 701 So.2d 192 (a motion for severance is addressed to the sound discretion of the trial court and its ruling should not be disturbed on appeal absent a showing of an abuse of discretion).[18]

         Additionally, on the severance claim, the court of appeal refused to consider whether the separate offenses were improperly joined because that claim was not preserved for review by contemporaneous objection at trial pursuant to Louisiana Code of Criminal Procedure article 841(A).

         The court of appeal also rejected his argument that the trial court improperly denied him a continuance. In denying the alternate claim for relief, the court reasoned:

Alternatively, the defendant contends that he should have been granted a one-day continuance to obtain the OCS file and the statement of H.G.'s mother.[19]We reiterate that the record reflects that the statement was provided, the defense was informed that there was no OCS file, and the defense thereafter indicated it was satisfied with the discovery provided. Further, as the trial court noted, the trial's presentation of evidence did not begin until the day after the motion was made. And when trial began the next day, the defendant did not urge any further objection. Accordingly, the trial court did not abuse its discretion in denying the motion to continue. Cf. State v. Strickland, 94- 0025 (La. 11/1/96), 683 So.2d 218, 229 ("The decision whether to grant or refuse a motion for a continuance rests within the sound discretion of the trial judge and a reviewing court will not disturb such a determination absent a clear abuse of discretion.").[20]

         The Louisiana Supreme Court subsequently denied relief without additional stated reasons. See Ylstv. Nunnemaker, 501 U.S. 797, 803 (1991) ("Where there has been one reasoned state judgment rejecting a federal claim, later unexplained orders upholding that judgment or rejecting the same claim rest upon the same ground.").

         To the extent Ventura argues that the trial court erred as a matter of state law in denying the severance, he has failed to state a cognizable federal claim. A federal habeas court does not sit to correct errors made by state courts in interpreting and applying state law. Swarthoutv. Cooke, 562 U.S. 216 (2011) (federal habeas review does not lie for mere errors of state law); Narvaiz v. Johnson, 134 F.3d 688, 695 (5th Cir. 1998) (citing Estelle v. McGuire,502 U.S. 62, 67-68, 112 S.Ct. 475, 116 L.Ed.2d 385 (1991), Lewis v.Jeffers,497 U.S. 764, 780, 110 S.Ct. 3092, 111 L.Ed.2d 606 (1990) and West v. Johnson, 92 F.3d 1385, 1404 (5th Cir. 1996)). "[I]t is notthe province of a federal habeas court to reexamine state-court determinations on state-law questions." Estelle, 502 U.S. at 67-68, 112 S.Ct. 475; see also,Molo v. Johnson,207 F.3d 773, 776 n. 9 (5th Cir. 2000) ("Federal habeas review does not extend to state court conclusions of state law."); Hogue v. Johnson,131 F.3d 466, 506 (1997) (a disagreement as to state law is not cognizable on federal habeas review). Here, the court of appeal addressed the state-law issue in the context raised by Ventura at trial, i.e., the discretionary decision to afford ...


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