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Ware v. Vannoy

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

July 9, 2019

RUSSELL G. WARE
v.
DARREL VANNOY

          DRELL JUDGE

          REPORT AND RECOMMENDATION

          JOSEPH H. L. PEREZ-MONTES UNITED STATES MAGISTRATE JUDGE

         Petitioner Russell G. Ware (“Ware”) filed a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254 (Docs. 1, 10, 11). Because Ware has not carried his burden of proving he is entitled to habeas relief, his petition should be DENIED AND DISMISSED WITH PREJUDICE.

         I. Background

         Ware filed a § 2254 petition contesting his 2009 convictions for aggravated rape and sexual battery by a judge in the Ninth Judicial District Court in Rapides Parish. Ware was sentenced to a total of life plus 25 years of imprisonment. Ware's convictions and sentences were affirmed on appeal. See State v. Ware, 2011-337 (La.App. 3d Cir. 11/23/11), 80 So.3d 593, writs den., 2011-1391 (La. 3/9/12), 84 So.3d 549, and 2012-0046 (La. 8/22/12), 97 So.3d 358.

         The facts of this case, as set forth by the Louisiana Court of Appeal for the Third Circuit in Ware, 80 So.3d at 595-96, are as follows:

In December 2007, Defendant, Russell Gene Ware, Jr., allegedly engaged in sexual intercourse with his live-in girlfriend's daughter, M.H., who was eleven years old at the time. On that morning, after her mother had gone to work, Defendant took the victim from her bedroom and put her into the bed he shared with her mother. He undressed her and inserted his penis into her vagina. In February 2008, while her mother was at work, after the minor child had taken a bath, Defendant entered the bathroom and, despite her protests, insisted on applying medication to sores she had on her buttocks. He then rubbed M.H.'s anus and vagina. The following weekend, M.H. told her father about the touching in the bathroom. He reported the incident to the police. The victim's father arranged for her to immediately see a counselor about the incident. At this time, the victim told the counselor about the incident in December. Again, the victim's father contacted the police department.
Ware raises the following grounds for habeas relief (Docs. 1, 10, 11):
1. There was insufficient evidence to support Ware's conviction for aggravated rape and sexual battery. The only evidence was the testimony of the victim, M.H., and the altered testimony of Defendant's previous victim, L.L., from a 16-year-old conviction for indecent behavior with a juvenile.
2. The trial court erred in allowing the State to introduce evidence from a 16-year-old prior conviction on an unrelated charge.
3. There was prosecutorial misconduct because the prosecutor “coached” M.H., deliberately misrepresented the truth, and knowingly and intentionally presented perjured testimony.
4. Ware's attorney refused to allow him to testify at trial, in violation of his Sixth Amendment right to the effective assistance of counsel.
5. Ware was tried by a biased judge and denied his rights to counsel and a fair trial because the trial judge: (1) forced Ware to choose between his right to counsel and his right to trial by jury; (2) deprived Ware of the effective assistance of counsel by refusing to continue the trial more than one day; (3) rejected the testimony of the state's expert witness; and (4) made an improper comment regarding pedophiles during closing arguments.
6. Ware had ineffective assistance of counsel because his attorney: (1) failed to conduct pre-trial discovery; (2) failed to investigate, interview and call witnesses; (3) allowed improper other crimes evidence to be presented unchallenged; (4) failed to present a defense; (5) failed to call an expert witness in the area of child sexual abuse to challenge the State's expert witness and evidence; and (6) failed to confront and cross-examine the State's witnesses.
7. The trial court erred in denying defense counsel's motion for a continuance to allow defense counsel to adequately prepare for trial.
Respondent filed a response to Ware's petition (Doc. 15), to which Ware replied

(Doc. 26).

         II. Law and Analysis

         A. Rule 8(a) Resolution

         The Court is able to resolve this petition without the necessity of an evidentiary hearing because there is no genuine issue of material fact relevant to the petitioner's claims, and the state court records provide the required and adequate factual basis. See Moya v. Estelle, 696 F.2d 329, 332-33 (5th Cir. 1983); Easter v. Estelle, 609 F.2d 756, 761 (5th Cir. 1980); Habeas Corpus Rule 8(a).

         B. Standard of Review

         An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a state court shall be considered only on the ground that he is in custody in violation of the Constitution, laws, or treaties of the United States. 28 U.S.C. § 2254(a). The role of a federal habeas court is to guard against extreme malfunctions in the state criminal justice systems, not to apply de novo review of factual findings and to substitute its own opinions for the determination made on the scene by the trial judge. See Davis v. Ayala, 135 S.Ct. 2187, 2202 (U.S. 2015) (citing Harrington v. Richter, 562 U.S. 86, 102-03 (2011).

         Under 28 U.S.C. § 2254 and AEDPA, which is applicable to habeas petitions filed after its effective date on April 24, 1996, habeas relief is not available to a state prisoner with respect to a claim that was adjudicated on the merits in the State court proceedings unless the adjudication of the claim (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. See Martin v. Cain, 246 F.3d 471, 475-76 (5th Cir. 2001), cert. den., 534 U.S. 885 (2001). Therefore, Section 2254(d) demands an initial inquiry into whether a prisoner's “claim” has been “adjudicated on the merits” in state court; if it has, AEDPA's highly deferential standards kick in. See Davis, 135 S.Ct. at 2198 (citing Richter, 562 U.S. at 103).

         When state courts have adjudicated the petitioner's claims on the merits, the Court's review is subject to AEDPA's so-called “relitigation bar.” See Thomas v. Vannoy, 898 F.3d 561, 566 (5th Cir.2018), cert. denied, 139 S.Ct. 1321 (2019) (citing 28 U.S.C. § 2254(d)(1)). Because that relitigation bar applies, the Court may not grant habeas relief unless “the [state court's] adjudication of the claim 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.” See id.

         Pursuant to AEDPA, pure questions of law and mixed questions of law and fact are reviewed under' 2254(d)(1), and questions of fact are reviewed under' 2254(d)(2). See Martin, 246 F.3d at 475-76.

         C. Ware's convictions are supported by sufficient evidence.

         Ware contends there is insufficient evidence to support his convictions for aggravated rape and sexual battery since the only evidence was the testimony of the victim, M.H., and the altered testimony of Defendant's previous victim, L.L., from a 16-year-old conviction for indecent behavior with a juvenile.

         A reviewing court confronted with a claim of insufficient evidence must, after viewing all the evidence in the light most favorable to the conviction (prosecution), determine whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. See Cupit v. Whitley, 28 F.2d 532, 542 (5th Cir. 1994), cert. den., 513 U.S. 1163 (1995) (citing Jackson v. Virginia, 443 U.S. 307 (1979)).

         Habeas relief on a claim of insufficient evidence is appropriate only if it is found that, upon the record evidence adduced at trial, no rational trier of fact could have found proof of guilt beyond a reasonable doubt. See West v. Johnson, 92 F.3d 1385 (5th Cir. 1996), cert. den., 520 U.S. 1242 (1997) (citing Jackson, 443 U.S. at 322-26). To apply this standard, courts look to elements of the offense as defined by state substantive law. See Donahue v. Cain, 231 F.3d 1000, 1004 (5th Cir. 2001).

         In order to prove a defendant was guilty of aggravated rape of a child less than thirteen under La. R.S. 14:42(A)(4), the State must have proven beyond a reasonable doubt that: (1) the defendant engaged in anal, oral, or vaginal intercourse deemed to be without consent of the victim because of (2) the victim's age at the time of the rape. See State v. Ricks, 49, 609 (La.App. 2 Cir. 1/14/15), 194 So.3d 614, 624 (citing State v. Prejean, 2007-1269 (La.App. 3 Cir. 4/30/08), 981 So.2d 272, vac'd in other part, 2008-1192 (La. 2/6/09), 999 So.2d 1135). Force is not an element of rape of a child under the age of 12. See Ricks, 194 So.3d at 624 (citing State v. Taylor, 36, 066 (La.App. 2 Cir. 6/12/02), 821 So.2d 633, writ den., 2002-2068 (La. 6/20/03), 847 So.2d 1222).

         La. R.S. 14:43.1(A)(2) defines sexual battery of a juvenile as: “[T]he intentional touching of the anus or genitals of the victim by the offender using any instrumentality or any part of the body of the offender, directly or through clothing, or the touching of the anus or genitals of the offender by the victim using any instrumentality or any part of the body of the victim, directly or through clothing, when…(2) The victim has not yet attained fifteen years of age and is at least three years younger than the offender.” See also State v. Cavazos, 2011-0733 (La.App. 4th Cir. 5/16/12), 94 So.3d 870, 878, writs den., 2012-1372 and 2012-1438 (La. 10/26/12), 99 So.3d 645.

         “The testimony of the victim alone is sufficient to establish the elements of the offense of aggravated rape, even where the State does not introduce medical, scientific, or physical evidence to prove the commission of the offense by the defendant.” State v. Wallace, 2013-0149 (La.App. 4 Cir. 6/25/14), 143 So.3d 1275, 1279 (citing State v. Lewis, 97-2854, p. 33 (La.App. 4 Cir. 5/19/99), 736 So.2d 1004, 1023, writ den., 1999-2694 (La. 3/17/00), 756 So.2d 325); see also Broadway v. Office of District Attorney, 676 Fed.Appx. 346, 347 (5th Cir. 2017), cert. den., 137 S.Ct. 2197 (U.S. 2017) (“[I]n the absence of scientific evidence, testimony alone is sufficient to establish penetration.”) (citing State v. Rives, 407 So.2d 1195, 1197 (La. 1981); Wilson v. Cain, 2014 WL 3700962, *14 (E.D. La. 2014).

         In this case, the victim testified as to the elements of the offense, and the witness testified as to Ware's past sexually assaultive behavior with children under 17 years old pursuant to La. C. E. art. 412.2. That testimony was sufficient evidence to support Ware's convictions.

         Moreover, where there has been a thoughtful review of the sufficiency of the evidence by a state appellate court, that court's findings are entitled to great weight. See Jackson, 443 U.S. at 322 n.15. The Court of Appeal considered the weight of the victim's testimony and found the State established the elements of aggravated rape beyond a reasonable doubt. See Ware, 80 So.3d at 598. It is apparent, and significant, that the court plainly credited the victim's testimony.

         Therefore, there is no merit to Ware's contention that the victim's and witness's testimony was insufficient evidence to support his convictions.

         D. Evidence of Ware's prior conviction and the underlying facts were admissible to show Ware's “lustful disposition toward children.”

         Ware contends he was prejudiced when the trial court erred in allowing the State to introduce evidence from a 16-year-old ...


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