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Hughes v. Vannoy

United States District Court, E.D. Louisiana

May 28, 2019

EVERETT HUGHES
v.
DARREL VANNOY, WARDEN

         SECTION: “F” (5)

          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, Everett Hughes, is a convicted inmate currently incarcerated at the Louisiana State Penitentiary in Angola, Louisiana. On May 3, 2012, he was charged by bill of indictment with one count of second-degree murder and one count of attempted second-degree murder.[1] On September 26, 2013, a jury found him guilty as charged on both counts.[2] On November 15, 2013, his motions for post-verdict judgment of acquittal and for new trial were denied, and he was sentenced to life imprisonment without benefit of probation, parole or suspension of sentence for second-degree murder and a term of 50 years imprisonment at hard labor without benefit of probation, parole or suspension of sentence for attempted second-degree murder, to run concurrently.[3]

         On direct appeal, he asserted that the evidence was insufficient to support the convictions and that his sentences were excessive. On November 25, 2014, the Louisiana Fifth Circuit Court of Appeal affirmed his convictions and sentences.[4] On October 9, 2015, the Louisiana Supreme Court denied his application for writ of certiorari.[5]

         On or about November 28, 2016, Hughes submitted an application for post-conviction relief to the state district court.[6] In that application, he asserted that trial counsel was constitutionally ineffective for failing to (1) make contemporaneous objections during trial; (2) call witnesses for the defense and prevent the State from presenting the uncalled witnesses' statements through other means at trial; and (3) investigate and call a defense witness, who was a friend of Hughes, at trial. On February 21, 2017, the state district court denied his application for post-conviction relief.[7] The district court first noted that he failed to specify with reasonable particularity the factual basis for his first ineffective-assistance claim as required by Louisiana Code of Criminal Procedure article 926(B)(3). The court then denied that claim, along with the others, on the merits. His related supervisory writ application was denied by the Louisiana Fifth Circuit Court of Appeal on June 7, 2017.[8] The court of appeal rejected the first claim citing Louisiana Code of Criminal Procedure article 926(B)(3) and denied the remaining claims on the merits. He subsequently filed a supervisory writ application with the Louisiana Supreme Court. On October 15, 2018, the Louisiana Supreme Court denied relief on the merits stating, “[r]elator fails to show that he received ineffective assistance of counsel under the standard of Strickland v. Washington.”[9]

         In November 2018, Hughes filed his federal application for habeas corpus relief asserting the same three ineffective-assistance-of-counsel claims he raised on post- conviction review.[10] The State's response concedes that the federal application is timely and that his claims were exhausted in the state courts.[11] As to claim one, the State submits that it should be rejected as procedurally defaulted based on the intermediate court's ruling and the presumptive adoption of those grounds by the Louisiana Supreme Court, or alternatively denied on the merits along with his other claims.

         Facts

         On direct appeal, the Louisiana Fifth Circuit summarized the following facts adduced at trial:

Shane Petty, a victim of the shooting incident and the nephew of the murder victim (Mr. Williams), testified that he was present on January 2, 2012 when defendant shot and killed Mr. Williams. He also identified defendant in court.
Mr. Petty testified that he and Mr. Williams ran errands for the family that day, visiting several stores together on the date of the incident. He stated that they also visited the residence of Mr. Williams' fiancé, Rachel Durall, where defendant was present. While at Ms. Durall's residence, Mr. Williams and defendant had a “basic conversation” about Ms. Durall. According to Mr. Petty, he had no reason to believe that the conversation would lead to later violence between the two and believed the problem was solved. Mr. Petty stated that after he and Mr. Williams finished visiting the stores, they visited the home of Mr. Petty's grandmother, Barbara Williams, who was also Mr. Williams' mother. As Mr. Petty left Ms. Williams' house, Ms. Williams stopped him and told him to let Mr. Williams (the victim) bring him home because Mr. Petty did not have car insurance. Mr. Petty stated that as a result, he and Mr. Williams left the house together in a vehicle belonging to Mr. Petty's mother, with Mr. Petty driving.
Mr. Petty stated that after leaving the house, they turned on Spruce Street, where defendant was standing on the corner. He testified that defendant “flagged” them down, and Mr. Williams told Mr. Petty to stop the vehicle. Mr. Petty stated that an altercation began, with defendant stating that he did not like what had occurred in their first conversation. Mr. Petty stated that Mr. Williams responded that he thought the first conversation was finished. The argument became louder, angrier, and more heated. Mr. Petty stated that Mr. Williams was angry, and both Mr. Williams and defendant elevated their voices. He stated that Mr. Williams attempted to exit the vehicle, and at that point defendant backed up, opened fire, and shot him. Mr. Petty stated that after defendant began shooting, he had to “run for his life” around the corner of the houses. Mr. Petty stated that when he looked back, he saw that defendant was shooting while running in the opposite direction.
Mr. Petty testified that he and Mr. Williams did not have a gun during the incident. He stated that only one gun was involved, and that defendant was the only person who fired a gun. He stated that after the shooting, he ran directly to his grandmother's house and informed her of the shooting. As he and his grandmother walked back to the crime scene, he realized that he had been injured. Mr. Petty stated that he did not enter the vehicle at that point. He explained that he was afraid to return to the vehicle because he believed his uncle had been killed, and he did not want to see him in that condition. He further testified that he did not remove anything from the vehicle and did not see anyone, other than an officer or an emergency responder, remove anything from the vehicle. Mr. Petty said that he did not see the person who opened the car doors remove anything from the vehicle. He also testified that there were more than four people around the vehicle.
Mr. Petty stated that he provided a statement to officers and identified defendant as the shooter in a photographic lineup. Officers took photographs of his injuries sustained during the shooting incident, and he testified that the photographs accurately depicted his injuries. He testified that he never had any dispute with defendant and that defendant had no reason to shoot him on the date of the incident. According to Mr. Petty, he did not attack defendant, and instead, he exited the vehicle and fled in a different direction.
On cross-examination, Mr. Petty acknowledged that although the conversation became heated, he and Mr. Williams chose to stay during the altercation when they could have driven away. He also stated that Mr. Williams told defendant that if he had something against him, then he would have previously “smacked” him when they first met. Mr. Petty further stated that Mr. Williams was “furious” because he believed defendant was behaving disrespectfully to him during the conversation.
Barbara Williams, the mother of the murder victim, testified on behalf of the State that prior to the shooting, her son (Mr. Williams) left her house with her grandson, Mr. Petty. She explained that Mr. Williams was accompanying Mr. Petty to the house of her daughter, who was also Mr. Petty's mother. Ms. Williams stated that it was common for her family to drive down Avenue I to Spruce Street to exit the neighborhood and reach her daughter's house.
Ms. Williams stated that within minutes after Mr. Williams and Mr. Petty left her house, Mr. Petty returned and informed her that her son was the victim of a shooting. According to Ms. Williams, neither she nor Mr. Petty called 9-1-1 on the date of the incident. She further stated that she walked up to the vehicle and saw her son lying inside. She explained that Mr. Williams' eyes were open at first, and when his eyes closed, she called her daughter. She also testified that she did not see Mr. Williams or Mr. Petty with a gun, she did not keep a gun in her house, and she did not know Mr. Williams to possess a gun. Ms. Williams further testified that no one brought a gun to her house after the shooting.
M.H., who was eleven years old at the time of trial, testified that on the date of the incident, she and her younger brother were in her mother's vehicle, which was parked outside of their residence on Spruce Street. M.H. testified that a man and two boys were talking while standing on the sidewalk. She stated that a gold SUV pulled up and stopped. M.H. stated that the passenger of the SUV and the man on the sidewalk began arguing. She testified that as the arguing became louder, the man standing outside the SUV pulled a gun from his jacket pocket and shot the other man. According to M.H., she did not see anyone else with a gun. She also stated that she was unable to see inside the SUV.
M.H. said that after the shooting began, she grabbed her younger brother, ducked between the car seats, and continued to peek. She also stated that the two boys on the sidewalk began running, and the driver of the SUV jumped out and also began running. M.H. testified that after the shooter shot the man, he ran to a corner, [12] shot “on the ground, ” and ran towards the back street of the neighborhood. M.H. testified that the driver of the SUV did not have anything in his hands when he exited the vehicle because he was pulling his pants up.
M.H. stated that after the shooter left the scene, her mother told her to grab her brother, and they ran inside their house and locked the doors. M.H. stated that she later provided a statement to police officers. She explained that she was unable to identify anyone from a photographic lineup because she only saw the side of the shooter's face. M.H. described the perpetrator as wearing a black coat, having dreadlocks that reached down to the middle of his back, and having gold teeth.
On cross-examination, M.H. testified that she saw the vehicle that was occupied by the victims circle the street twice. She also acknowledged that in her statement to the police, she stated that she did not see “the guy run from the car.” On redirect, M.H. explained that she was nervous, shaking, and crying when she spoke to the police, but that she really did see someone exit the vehicle. She also stated that she only saw one gun during the incident.
Chiva Lagarde, who testified for the State, stated that at the time of the shooting, she was inside of her residence on Spruce Street near the corner of Avenue I. She stated that prior to the shooting, she brought the garbage outside and saw defendant, Rashad Walker, and David Alexander walking towards Spruce Street. She explained that she knew defendant, Mr. Williams, Mr. Petty, Mr. Walker, and Mr. Alexander from the neighborhood.
Ms. Lagarde stated that she returned inside and was in her kitchen cooking when she heard gunshots. After the shooting, she looked out of her screen door and saw two people running. Defendant was running farther away from her residence, and the other unknown person ran through the field across from her residence. She stated that she was unable to determine whether either person held a gun because she was not wearing her eyeglasses at that time. Ms. Lagarde stated that after the shooting, she called 9-1-1, went outside, and saw people walking towards the vehicle.
Ms. Lagarde walked towards the vehicle and saw someone sunken in between the two front seats. She testified that another female, possibly named Shandell, opened the driver side door and screamed. Ms. Lagarde stated that she opened the passenger side door because she was unable to see anything through the driver's side. She stated that Mr. Williams looked at her and made guttural noises as if he was trying to speak to her. She testified that she did not see a gun in the vehicle, but she was focused on Mr. Williams and not on the interior of the vehicle. Ms. Lagarde also testified that she did not remove a gun from the vehicle and did not see anyone else remove a gun from the vehicle. She stated that she saw Mr. Petty outside after the shooting, but she was unsure whether or not he approached the vehicle.
Sergeant Michael Nocito, a road supervisor of the Westwego Police Department, testified on behalf of the State that on January 2, 2012, he was the first officer to respond to a shooting that occurred in the 1000 block of Spruce Street in Westwego. Sergeant Nocito stated that he observed a black male in the passenger seat of a SUV. He described the victim as being slumped over the console towards the back of the vehicle and that the top portion of his shirt was “full of blood.” Sergeant Nocito explained that after he secured the crime scene, he located the driver of the vehicle.
Keith Dykes, a former uniformed patrolman of the Westwego Police Department, testified on behalf of the State that on the date of the incident, he patrolled the neighborhood where the shooting occurred. He stated that he stopped three individuals who fit the general description of the subjects. Mr. Dykes stated that he conducted a field interview of two of the subjects, and another officer conducted a field interview on the third subject. According to Mr. Dykes, the subjects identified themselves as “Jared” Walker and David Alexander during the interview. On cross-examination, Mr. Dykes stated that his attempt to verify the information by conducting a search for both names yielded no results. On redirect, Mr. Dykes testified that another officer was able to determine that Mr. Walker had provided a false name.
Detective Corey Boudreaux of the Westwego Police Department testified on behalf of the State that on the date of the incident, he was working dually as a patrolman and a crime scene technician. He testified that he did not locate any firearms in the vehicle or anywhere on the scene. He stated that the evidence collected at the scene included spent casings and bullet fragments. On cross-examination, Detective Boudreaux acknowledged that although he did not see anyone access the vehicle, anyone was able to access the vehicle.
Thomas Bryson, a former officer of the Westwego Police Department, testified on behalf of the State that on the date of the incident, he participated in the investigation that led to the arrest of defendant for the shooting death of Mr. Williams. Mr. Bryson testified that he did not develop any information or any physical evidence that would indicate that there was more than one gun at the time of the shooting. Mr. Bryson stated that one or more 9-1-1 callers provided information that there was one suspect. He explained that one 9-1- 1 caller stated that three black males left the area, which prompted the officers to look for those subjects to be traveling together.
Mr. Bryson also testified that he interviewed Mr. Petty on the date of the incident. He stated that Mr. Petty appeared nervous. He became aware that Mr. Petty had suffered injuries and that he received medical treatment after the interview. According to Mr. Bryson, after defendant had been developed as a possible suspect, he presented Mr. Petty with a six-panel color photographic lineup. Mr. Bryson stated that Mr. Petty identified defendant as the person he saw commit the shooting.
Mr. Bryson explained that although he made efforts to discover the firearm used in the incident, including executing a search of defendant's residence twice, he was unable to locate the firearm.
Mr. Bryson testified that Rashad Walker was the only person to make a statement that suggested there was more than one gun. However, although Officer Dykes conducted a field interview of Mr. Walker on the date of the incident, Mr. Walker provided an inaccurate name and also did not mention at that interview that he had witnessed the shooting. According to Mr. Bryson, Mr. Walker provided three taped statements to the police, including a statement on January 4 and two statements on January 11. Nine days after the date of the incident, in his second taped statement on January 11, 2012, Mr. Walker indicated for the first time that the victim, Mr. Williams, had a gun at the time of the shooting. According to Mr. Bryson, Mr. Walker did not provide this information in his first two taped statements.
In addition, Mr. Bryson stated that relevant information was recorded by two neighborhood crime cameras in close proximity to the incident, located on Avenue I and Spruce Street, and at Avenue I and Sixth Street. He testified that although it “panned away” immediately before the shooting, one of the crime camera's recordings depicted the victim's SUV and the three individuals standing near the vehicle. Mr. Bryson further stated that the crime camera's recording depicted an individual, later identified as Mr. Petty, lift up his shirt and examine his body. The crime camera also showed a woman, later identified as 9-1-1 caller Ms. Lagarde, running towards the vehicle. He further testified that between the time that the shooting would have occurred and the time the recording ended approximately forty minutes later, he did not observe anyone that was non-law enforcement remove a gun or any other object from the vehicle.[13] Mr. Bryson further explained that the second ...

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