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Nelson v. Vannoy

United States District Court, E.D. Louisiana

July 15, 2019

JEFFERY D. NELSON
v.
DARREL VANNOY, WARDEN

         SECTION “A” (2)

          REPORT AND RECOMMENDATION

          JOSEPH C. WILKINSON, JR. 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 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. Upon review of the entire record, I have determined that a federal evidentiary hearing is unnecessary. See 28 U.S.C. § 2254(e)(2).[1] For the following reasons, I recommend that the instant petition for habeas corpus relief be DISMISSED WITH PREJUDICE as time-barred.

         I. PREFACE

         As an initial matter, although the memorandum in support of petitioner Jeffery D. Nelson's habeas petition includes the name of his brother and co-defendant, Quentin McClure, this habeas corpus proceeding relates only to Nelson. My briefing order specifically directed the State to answer as to Nelson. See Rec. Doc. No. 5. When the petition and supporting documents were received, the clerk of court initiated a separate case for McClure, assigned C. A. No. 18-11389“M” (1). The Clerk's action had the effective of bifurcating the claims of Nelson and McClure. On March 25, 2019, McClure's separate petition was dismissed without prejudice for failure to prosecute and judgment was entered. If this court now were to consider any claims or defenses as to McClure, he would be prejudiced by the prohibitions against successive petitions under 28 U.S.C. § 2244 and Rule 9 of the Rules Governing Section 2254 Cases. Accord Castro v. United States, 540 U.S. 375, 383 (2003) (a pro se litigant is prejudiced by the recharacterization of a habeas pleading without due warning and opportunity to amend or withdraw). McClure has already chosen not to prosecute the identical claims/petition in the separate case allotted for him by the clerk under a different civil action number. I will not assume that McClure would prosecute his claims as part of this separate case and face its dismissal as a successive petition. For these reasons, I have not addressed or considered the State's opposition or defenses related McClure.

         II. FACTUAL BACKGROUND

         The petitioner, Jeffery D. Nelson, is a convicted inmate incarcerated in the Louisiana State Penitentiary in Angola, Louisiana.[2] On February 2, 2012, Nelson and two co-defendants, Quentin McClure (Nelson's brother) and Chasity Griffin, were charged by a Jefferson Parish grand jury in an eight-count indictment in which Nelson was charged with second degree murder, possession of a weapon by a convicted felon and conspiracy to commit obstruction of justice.[3]

         On February 2, 2012, Nelson entered a not guilty plea to the charges against him.[4]The Louisiana Fifth Circuit Court of Appeal summarized the facts established at trial in relevant part as follows:

The Murders
Theodore Pierce was murdered outside of a friend's house in Bridge City on January 2, 2011. Co-defendants McClure and Griffin were arrested shortly thereafter and charged with his murder. Pierce's murder was witnessed by Charles Smith, a neighbor, who gave a statement to the police and who identified McClure and Griffin as the shooters in photographic lineups two days after the murder.
[. . .]
Smith also told police during his statement that the day after the shooting, McClure drove to his house armed with a gun and confronted him stating, “I heard you talking about, about the, the shooting, ” to which Smith responded that he had not been talking about anything. Smith stated that he believed his life was in danger because he had witnessed the murder.
At approximately noon on August 17, 2011, the day before a scheduled motion hearing to determine the admissibility of the photographic identifications made by Smith of McClure and Griffin as the shooters in Pierce's murder, Smith was found shot to death in front of his home located on Fourth Street in Bridge City. Eight casings were found at the scene and Jene Rauch, a firearm and tool mark examiner expert, opined that one gun was used in the shooting. An autopsy revealed that Smith died of multiple gunshot wounds to his head, chest and leg. The murder weapon was never recovered.
Smith's friend, John Stewart, was visiting Smith at his house on Fourth St. when Smith was shot. [. . .] When Stewart stepped outside, he saw a young black male with dreadlocks, wearing a black “wife beater, ” blue shorts, and a black bandana over his head, jump over the fence. Stewart was unable to see the man's face because it was partially covered; hence, Stewart was unable to identify the man from a photographic lineup. At trial, the parties stipulated that at the time of Smith's murder, Defendant was a young black man with dreadlocks.
[. . .]
Detective Matthew Vasquez of the Jefferson Parish Sheriff's Office (JPSO) investigated Smith's murder. [. . . ] He found that Defendant, McClure's brother, fit the description of Smith's assailant provided by Stewart. [. . .] Det. Vasquez subsequently subpoenaed Defendant's cell phone records which showed that he was in the area of Smith's residence at the time of his murder and left the area soon thereafter.
Defendant was arrested on unrelated outstanding attachments and questioned about Smith's murder. After being advised of his rights, Defendant gave two taped statements. In his first statement, Defendant denied knowing Smith and was unable to say what he was doing on the day of Smith's murder. Defendant also denied owning a cell phone. When confronted with his cell phone records, Defendant admitted he had lied and ultimately admitted that he used his cell phone to talk to McClure while McClure was in jail.
In his second statement, [. . .] Det. Vasquez then confronted Defendant with his cell phone records which placed him in Bridge City at the time Smith was killed. Defendant became agitated and angry and said, “f**k the cell phone records.” [. . .] Det. Vasquez then played the phone conversation between McClure and Defendant that took place six hours after the shooting wherein McClure asked whether the information he heard about “Dude” was true. Defendant stated “Dude” referenced a family member, but could not say who the family member was or his relationship. Also in that phone conversation, Defendant told McClure that their mother did not want him talking to McClure because the call could be traced. When Det. Vasquez asked Defendant why he was worried about being traced if they were only talking about a relative, Defendant became very angry and told Det. Vasquez to “just book me then. I'm done. Just book me.” Defendant was subsequently charged with Smith's murder.
The Conspiracy
During his investigation of Smith's murder, Det. Vasquez listened to “hundreds of hours” of jailhouse phone calls made by McClure and Griffin from the JPCC both before and after Smith's murder. [. . .]
In the January 6, 2011 phone call from McClure to an unknown male, McClure stated that he's “good” as “[l]ong as the n*gg* don't say nothing.” The next day McClure assured his mother that everything was alright “long as nobody don't say nothing.” In a call to his brother, Frank, two days later, McClure indicated that the police claimed they had one witness and “n*gg* already know who the witness is.”
On January 25, 2011, McClure and an unknown female facilitated a three-way call with Defendant during which McClure stated, “I ain't trippin' . . . They don't got no witness . . . Well, they got one witness, but . . . he ain't coming to court or whatever, woo di woo.” Two days later, Defendant asked McClure how he got caught to which McClure responded, “I was acting stupid . . . I was acting dumb as a mother-f**ker son . . . I was on the wrong level son.”
Four days later, on January 29, 2011, McClure had another three-way call with his friend, Willis Stevenson, and Defendant. During the call, Stevenson told McClure that Griffin had not been to court and that Griffin's attorney said she would be going home in 120 days because the State did not any evidence against her. McClure responded, “Right, yeah cause my lawyer was like ‘uh you know they got one witness but uh your little brother is on that.' When he told me that, I already know what it was (laughing), ya heard me?” Stevenson then told McClure about a conversation Griffin's father, Terrence Daniels, had with Smith. Specifically, Stevenson said, “T went over there today, cause he was with Scooby ya know what I'm saying. So boy Scooby brought him, n*gg* was at the Fishhook. Ya know what I'm saying, he brought him to the Fishhook, I guess that where he felt comfortable at or whatever.” Later at trial, Smith's girlfriend, Margie McKeel, testified about an incident where Smith had told her that Griffin's father had threatened his life, telling Smith that “he better not testify or else there's going to be gunplay.”
A few months later, on June 2, 2011, Griffin called an unknown female and told her that her attorney was going to set Griffin's next court date for June 23 but that Griffin told her attorney the date was “too early.” Griffin explained that they needed to get their discovery packets. She stated that Defendant “was hollering about . . . other lil dude whose name starts with a C, ya heard me. You know who I'm talking about. . . . I think it's Troy's brother, lives on Fourth Street. I ain't gonna say his name.” Later on the same day, Griffin made a call to an unknown male and told him that “they only got one witness, ” who she identified as “Charles[, ] Troy's brother.” She further stated that his statement did not add up and that “he really didn't like see nothing.”
Two days later on June 4, 2011, Griffin spoke to a man named Louis Wells and told him to contact Smith's girlfriend, McKeel, to see what is “happening with Dude” who is “speaking on me and Q-sie [McClure].” Wells responded that he heard McKeel was staying in Algiers and that he had not seen her “back here.” Wells then handed the phone to Griffin's brother. Griffin told her brother, “I need that boy, ya heard me?”
During another conversation between Griffin and her brother on June 8, 2011, her brother stated, “heard we pulling something off” and that “Lil Jeff [Defendant]” is “all in.” Griffin later told her brother to acquire a “b*tch, ” which was interpreted by Det. Vasquez to be slang for an untraceable firearm. She then stated, “if you go f**k with Dude or whatever - whatever man, you could do your own thing or whatever. You could take everything from there, ya heard me?” to which her brother responded, “[s]h*t gonna be lovely when you come home, son.”
The next day on June 9, 2011, McClure spoke to Defendant. When Defendant asked McClure whether “Dude” was going to testify, McClure responded “[n]ine out of ten, he ain't going to f*ck with that.” He further informed Defendant that Griffin told him that they did not know where “Dude” was and “that's going to work out in my favor.”
One month later, on July 8, 2011, McClure spoke to his mother who told him that the discovery packet provided by the State identified Smith as a witness. McClure's mother told him that his next court date was set for August 18, 2011. Three days before Smith's murder, on August 14, 2011, McClure told his friend Stevenson that he received his “paperwork” and that “Dude” was the only person who said something and he was the only reason he was being held. Stevenson then talked to McClure about having spoken to Griffin.
Six hours after Smith was murdered on August 17, 2011, McClure called Defendant and asked him whether he had heard the news about Smith and inquired as to whether it was true. Defendant answered, “[y]eah, ” to which McClure responded “[w]ell, that's good.” Defendant then told McClure that their mother did not want him talking to McClure because the call could be traced “[s]ince that sh*t happen[ed].” McClure responded, “[f]**k it I ...

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