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Pierre v. Cain

United States District Court, E.D. Louisiana

June 24, 2019

DELIS PIERRE
v.
N. BURL CAIN

         SECTION “E” (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, Delis Pierre (“Pierre”), is a convicted inmate incarcerated in the Louisiana State Penitentiary in Angola, Louisiana.[2] On January 13, 2011, Pierre charge by Bill of Information in Tangipahoa Parish with two counts of armed robbery, one count of second degree kidnapping, and one count of purse snatching.[3] The State eventually severed the first count of armed robbery without objection.[4]

         The record reflects that, before sunrise on October 10, 2010, Angela Sampere Gomez exited a friend's apartment in Hammond, Louisiana, and began walking to her vehicle that was parked on Oak Street about a block from the apartment.[5] As she walked along Thomas Street, a white pickup truck approached her. The driver, a man she did not know and who was later identified as Pierre, leaned out of the window and asked her if the bars were still open. Noting that it was clearly past 2:00 a.m., Gomez responded negatively and kept walking. Pierre then asked Gomez, “Is this Hammond?” After Gomez responded positively, Pierre put the truck in park and stumbled out of the truck to grab Gomez. A physical struggle ensued. As she fought with Pierre, Gomez began screaming. She fell backwards onto the ground, and Pierre, who was standing over her, grabbed her purse and left in his truck. Pierre's flip-flop sandals came off during the attack, and he left them at the scene. Gomez alerted bystanders at a nearby store of the attack, and the police were called.

         Gomez provided a statement including a description of the perpetrator. The police seized the sandals that were left at the scene. A DNA sample was taken from the sandals and was determined to be that of Pierre, and this later was stipulated to at trial. About two weeks after the attack, the police showed Gomez a photographic lineup and she was unable to identify her attacker. Gomez later positively identified Pierre at trial.

         On October 28, 2010, Milton Perilloux, an employee of a Hammond, Louisiana Wal-Mart store, exited the store at the end of his shift to walk home. A photograph from the store surveillance camera showed the time to be 11:09 p.m. As Perilloux entered a Wendy's restaurant parking lot, he saw a white pickup truck pull into the lot. The driver, later identified as Pierre, rolled down his window and spoke to Perilloux about needing food. Pierre exited his truck and walked around it, leaving the driver's door open and still asking for assistance. As Perilloux turned around to point to a nearby church, Pierre grabbed Perilloux's sleeve, put a sharp object to his neck, and threatened to stab him if he did not give him money. Perilloux pleaded for his life, stating that he had a pregnant wife at home and that he didn't have any money. After Pierre threatened to kill him, Perilloux added that he did have credit cards. Pierre coerced Perilloux into his truck and drove to a nearby ATM machine. Perilloux tried to get out of the vehicle, but the passenger door was broken and would not open. Pierre demanded that Perilloux give him his ATM card and PIN. Pierre then took $200.00 from Perilloux's account, let Perilloux out of the vehicle, and drove away.

         Perilloux called the police to report the incident. Surveillance photographs introduced during the trial showed that Pierre arrived at the ATM at 11:22 p.m., used the machine, and stepped out of his vehicle just before Perilloux got out of the truck. On November 1, 2010, Perilloux identified Pierre as the perpetrator from a photographic lineup.

         During a recorded interview with the police, Pierre admitted taking Perilloux to an ATM machine and using Perilloux's ATM card to withdraw $200.00 from his account. However, Pierre claimed that Perilloux approached his truck as he sat in a parking lot smoking crack and asked to smoke with him. Pierre said that he allowed Perilloux to enter his truck, noting that he had to step out, and let Perilloux slide in from the driver's side, since the passenger door was broken. Pierre said that he and Perilloux sat in his truck talking and smoking for about thirty minutes. Pierre further claimed in the interview that Perilloux asked to go to the ATM machine and gave Pierre his card and PIN to take money from his account for the crack Pierre provided. Pierre further stated that he accidentally withdrew more money than Perilloux owed him, but Perilloux kept the extra money.

         At trial, Gomez was able to positively identify Pierre as her attacker. During his trial testimony, Pierre admitted to stealing Gomez's purse, but denied physically attacking her. Instead, Pierre claimed that he picked up the purse after Gomez dropped it and, as she tried to run from him, she tripped and fell.

         Pierre also admitted at trial that he stole money from Perilloux, because he was only supposed to take out $20.00. When Perilloux realized that he withdrew $200.00, Perilloux chased Pierre's truck out of the parking lot. Pierre repeatedly denied using a weapon. When Perilloux testified, he repeatedly denied knowing Pierre, ever smoking crack, or giving Pierre permission to withdraw money from his account.

         Pierre was tried before a jury on July 19 and 20, 2011, and found guilty as charged of the armed robbery and second degree kidnapping of Perilloux and the Gomez purse snatching.[6] On September 7, 2011, the Trial Court denied Pierre's motions for a new trial and for post-verdict judgment of acquittal.[7] On October 17, 2011, the Court sentenced Pierre to concurrent terms of 99 years in prison at hard labor for armed robbery, 20 years in prison at hard labor for second degree kidnapping, and 20 years in prison at hard labor for purse snatching, with the first two sentences to be served without benefit of parole, probation, or suspension of sentence.[8] The Court also denied Pierre's motion to reconsider the sentences.[9]

         On direct appeal, Pierre's appointed counsel asserted two errors:[10] (1) the trial court erred when it denied the motion for mistrial based on introduction of other crimes evidence; and (2) he received ineffective assistance when his counsel failed to move to prevent the State from playing the taped police interview which mentioned an uncharged armed robbery and uncharged purse snatching. On September 12, 2012, the Louisiana First Circuit affirmed Pierre's convictions and sentences finding no merit in the claims.[11]

         The Louisiana Supreme Court denied Pierre's related writ application without stated reasons on April 1, 2013.[12] Pierre's convictions and sentences were final 90 days later, on Monday, July 1, 2013, [13] 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 June 26, 2014, [14] Pierre submitted to the state trial court an application for post-conviction relief asserting two grounds for relief: (1) he was denied effective assistance of trial counsel where counsel failed to seek recusal of the district attorney's office, failed to object to prosecutorial misconduct, and failed to request a continuance to investigate mitigating circumstances before sentencing; and (2) there was prosecutorial misconduct when the prosecutor vouched for witness credibility, bolstered the witness credibility, and destroyed Pierre's credibility. On July 1, 2014, the state trial court denied the application as meritless.[15]

         On November 3, 2014, the Louisiana First Circuit summarily denied Pierre's related writ application.[16] On October 9, 2015, the Louisiana Supreme Court denied Pierre's subsequent writ application without stated reasons.[17]

         On May 23, 2016, Pierre submitted to the state trial court a second application for post-conviction relief asserting 20 grounds for relief presenting numerous alleged errors by the state trial court, his counsel, and the prosecutor.[18] The state trial court denied the application on August 30, 2016, as repetitive under La. Code Crim. P. art. 930.4 and untimely under La. Code Crim. P. art. 930.8.[19]

         On January 10, 2017, the Louisiana First Circuit denied Pierre's related writ application also finding that the application was untimely under La. Code Crim. P. art. 930.8.[20] On May 25, 2018, the Louisiana Supreme Court denied Pierre's subsequent writ application finding that Pierre failed to show that recusal was required, exculpatory evidence was withheld, or he received ineffective assistance of counsel.[21] In addition, the Court held that the remaining claims were not timely asserted on post-conviction review, citing La. Code Crim. P. art. 930.8 and State ex rel. Glover v. State, 660 So.2d 1189 (La. 1995).

         II. Federal Petition and Procedural History

         On November 3, 2015, after correction of certain deficiencies, the clerk of this Court filed Pierre's federal petition for habeas corpus relief in which he asserted four grounds for relief:[22] (1) the Trial Court erred in denying the motion for mistrial based on the introduction of other crimes evidence; (2) he was denied effective assistance when counsel failed to object to other crimes evidence mentioned in his taped statement to police;(3) he was denied effective assistance when counsel failed to object to the district attorney's conflict, failed to object to prosecutorial misconduct through the mention of religious accountability, vouching for witnesses' credibility, discrediting the defendant, use of other crimes evidence, and failing to request a continuance to investigate mitigating evidence before sentencing; and (4) prosecutorial misconduct occurred when the prosecutor vouched for witness's credibility, bolstered witness's credibility and destroyed Pierre's credibility.

         On December 23, 2015, the State filed a response asserting the defenses of untimeliness and failure to exhaust.[23] After filing a reply to the State's opposition, Pierre moved for leave to amend his petition to include additional claims that he claimed were not exhausted because of prior acts of ineffective assistance of counsel and for a stay to allow him to complete exhaustion.[24] The record was not clear at the time as to whether Pierre's federal petition was untimely as suggested by the State. Out of an abundance of caution, the Court stayed the proceedings on April 11, 2016, to allow Pierre the opportunity to complete exhaustion on the newly asserted claims.[25]

         On Pierre's motion and after an opposition response from the State, the Court reopened the matter on November 13, 2018, and granted Pierre's request to amend and supplement his petition to assert the following claims, which include his original claims, all of which are now pending before the Court:[26] (1) he was denied a fair trial when the state trial court denied the motion for mistrial based on the introduction of other crimes evidence; (2) he received ineffective assistance when counsel failed to take action to prevent the playing of his statement that mentioned uncharged offenses; (3) he was denied effective assistance when counsel (a) failed to request that the District Attorney's Office be recused, (b) failed to object to prosecutorial misconduct, and (c) failed to request a continuance to investigate mitigating factors for sentencing; (4)(A) prosecutorial misconduct occurred when the prosecutor raised religious accountability and destroyed Pierre's credibility; (4)(B) the state trial court denied him due process when he was brought to trial without being arraigned on the purse snatching charge; (5) the state trial court erred when it denied the motion to sever and for new trial; (6) the state trial court erred when it denied the motion to recuse the district attorney and committed perjury; (7) the state trial court erred when it allowed him to appear for trial in prison garb; (8) the state trial court erred when it allowed a biased juror to serve; (9) the state trial court erred when it failed sua sponte to examine the voluntariness of his inculpatory statement when trial counsel failed to object or move to suppress the statement; (10) the state trial court erred by admitting other crimes evidence; (11) the state trial court failed to establish his competence and sanity; (12) the state trial court failed to admonish the jury and otherwise address prosecutorial misconduct; (13) the state trial court imposed an excessive sentence; (14) the State suppressed favorable evidence; (15) prosecutorial misconduct occurred when the State (a) knowingly introduced uncorrected false evidence, (b) elicited false testimony from witnesses, and (c) slandered petitioner's character and introduced other crimes evidence; (16)(A) the State failed to properly notice its intent to use other crimes evidence; (16)(B) counsel failed to withdraw when there was a clear conflict of interest; (17)(A) he was denied a fair trial when the state trial judge failed to recuse himself; (17)(B) counsel failed to conduct a reasonable investigation in preparation for trial; (18) he received ineffective assistance when counsel failed to investigate petitioner's mental health, competence, and the viability of an insanity defense; (19) he received ineffective assistance when counsel (a) failed to file for review of the denial of motions, (b) failed to present petitioner for trial in civilian clothes, (c) failed to object to the prosecutor's attack on petitioner's character, (d) manipulated petitioner into signing a stipulation, (e) waived petitioner's presence at sidebars during voir dire and accepted a bias juror, (f) failed to object to the lack of notice for other crimes evidence, (g) failed to move to suppress the video interview, (h) deceived petitioner about the evidence to convince him to accept a plea offer, (i) failed to review the motion for new trial and preserve issues for appeal, and (j) infringed on their confidentiality; and (20) he received ineffective assistance of appellate counsel for failing to include specific claims requested by petitioner.

         On January 2, 2019, the State filed an opposition to Pierre's amended and supplemental petition asserting that the original federal petition was not timely filed, some of the supplemental claims are not timely, and that more than half of the claims[27] now asserted are procedurally barred from federal habeas corpus review.[28] Pierre filed a reply to the State's opposition response asserting that his original petition was timely filed and that he had been diligent in his efforts to do so.[29] For the following reasons, the record demonstrates that Pierre's federal petition was not timely filed and should be dismissed for that reason.

         III. General Standards of Review

         The Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), Pub. L. No. 104-132, 110 Stat. 1214, [30] applies to Pierre's petition, which is deemed filed in this Court under the mailbox rule on October 16, 2015. Because Pierre challenges this as the filing date under the mailbox rule, the Court will address it further here.

         The Fifth Circuit has recognized that a “mailbox rule” applies to pleadings, including habeas corpus petitions filed after the effective date of the AEDPA, submitted to federal courts by prisoners acting pro se. Under this rule, the date when prison officials receive the pleading from the inmate for delivery to the court is considered the time of filing for limitations purposes. Coleman v. Johnson, 184 F.3d 398, 401 (5th Cir. 1999); Spotville v. Cain, 149 F.3d 374, 378 (5th Cir. 1998); Cooper v. Brookshire, 70 F.3d 377, 379 (5th Cir. 1995). In this case, the official stamp of the Louisiana State Penitentiary's Legal Programs Department reflects the petition and accompanying documents were received from Pierre by prison officials on October 16, 2015, for electronic mailing to a federal court.[31] The official stamp, and this Court's records, also reflect that the pleadings were emailed to and received by the clerk of court that same day.[32]

         The official stamps appearing on Pierre's pleadings are considered by this Court to establish the date on which the pleadings were presented to prison officials. This court may sometimes presume an inmate's signature date to be the date of presentation when there is no other proof of when the pleadings were presented for mailing. However, when the pleadings bear an official stamp date from the prison, the official stamp acts as proof of the date of presentation and preempts the need to consider the inmate's signature date. See, e.g., Smith v. Cain, No. 12-2014, 2014 WL 2898457, at *6 n.16 (E.D. La. Jun. 26, 2014); see also, England v. Cain, No. 15-0961, 2015 WL 5971196, at *4 n.33 (E.D. La. Oct. 14, 2015) (Order adopting attached Report and Recommendation). Here Pierre has provided only self-serving argument for the court to consider and accept a different, earlier presentation date. The Court is not persuaded that his ...


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