Bedoya v. Tanner

• Decision Date: 20 February 2019
• Docket Number: CIVIL ACTION NO. 12-1816 SECTION: "A" (5)
• Parties: DAVID BEDOYA v. ROBERT TANNER, WARDEN
• Court: U.S. District Court — Eastern District of Louisiana

DAVID BEDOYA
v.
ROBERT TANNER, WARDEN

CIVIL ACTION NO. 12-1816 SECTION: "A" (5)

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF LOUISIANA

February 20, 2019

REPORT AND RECOMMENDATION

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.

I. Procedural History

Petitioner, David Bedoya, is a convicted inmate currently incarcerated at the Winn Correctional Center in Winnfield, Louisiana. On December 5, 2006, David Bedoya was charged by bill of information with one count of forcible rape in violation of La. Rev. Stat. § 14:42.1 and one count of second-degree kidnapping in violation La. Rev. Stat. § 14:44.1.¹

On January 18, 2008, a jury found Bedoya guilty as charged.² On February 19, 2008,

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Bedoya was sentenced to 30 years at hard labor as to each count, to be served concurrently and without benefit of probation, parole, or suspension of sentence.³ Bedoya's motion to reconsider sentence was denied.⁴

On direct appeal, Bedoya asserted that: (1) the trial court erred by not declaring a mistrial when the prosecutor made an impermissible reference to petitioner's right to remain silent; (2) the sentence imposed was unduly excessive and not particularized to petitioner; (3) the trial court committed patent error when it failed to hold a hearing on the motion to reconsider sentence.⁵ On December 18, 2008, the Louisiana Fifth Circuit Court of Appeal affirmed his conviction and sentence but remanded the case for the state district court to inform petitioner of the registration requirements as provided in La. Rev. Stat. § 15:543(A).⁶ Bedoya's petition for rehearing was denied.⁷

Bedoya filed a writ application with the Louisiana Supreme Court.⁸ On November 20, 2009, the Louisiana Supreme Court denied his application for a writ of certiorari.⁹ His conviction and sentence became final on February 18, 2010, when the 90-day period for

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seeking a writ of certiorari from the United States Supreme Court expired and he failed to apply for relief. See U.S. Sup. Ct. R. 13(1); see also Ott v. Johnson, 192 F.3d 510, 513 (5th Cir. 1999); Roberts v. Cockrell, 319 F.3d 690, 693 (5th Cir. 2003).

On September 22, 2010, Bedoya filed with the state district court a motion for determination as to whether it was error to admit the victim's testimony at trial without a pretrial determination of voluntariness.¹⁰ On that same date he filed an application for post-conviction relief, in which he asserted the following six assignments of error: (1) prosecutorial misconduct based on: (a) repetitive and inflammatory introduction of copies photographs depicting the victim's injuries; (b) introduction of photographs of the screwdriver and crescent wrench; (c) unnecessarily focusing the jury's attention on the issue of petitioner's Colombian nationality; (d) eliciting prejudicial opinion testimony from the expert witness that was outside her field of expertise; (e) eliciting testimony from the expert witness to bolster the victim's testimony; (f) eliciting testimony from the expert witness that was tantamount to a pronouncement that petitioner kidnapped and raped the victim; (g) focusing the jury's attention on the issue of "invasiveness" of the medical pelvic examination; and (h) misstating evidence in its opening statement and closing argument; and (2) ineffective assistance of trial counsel in failing to: (a) object to hearsay evidence; (b) move to suppress evidence obtained from petitioner's home; (c) require the prosecution to produce the theory or methodology of its expert opinion testimony; and (d) object to the non-use of certified interpretation of the conversation between petitioner and the victim with respect

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to the home video.¹¹ He claimed his failure to raise his claims of prosecutorial misconduct was due to ineffective assistance of appellate counsel.¹² On December 15, 2010, Bedoya filed an objection to the State's response claiming it was untimely.¹³ On December 20, 2010, the state district court denied Bedoya's application, finding his reasons for failing to pursue his claims of prosecutorial misconduct on appeal meritless and, as a result, his prosecutorial misconduct claims procedurally barred under La. Code Crim. P. art 930.4(C) and his claims of ineffective assistance of counsel meritless .¹⁴ On January 4, 2011, the state district court found nothing in Bedoya's "objection" affected its ruling.¹⁵ Petitioner filed a motion for reconsideration and alternatively requested to re-file or amend his original petition, which the state district court denied on February 9, 2011.¹⁶

On January 27, 2011, the petitioner filed a timely writ application with the Louisiana Fifth Circuit Court of Appeal.¹⁷ On March 24, 2011, the Louisiana Fifth Circuit granted the writ for the limited purpose of ordering the district court to rule on petitioner's motions to

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amend and supplement his pleadings and to determine whether it was error to admit the victim's testimony without a pretrial hearing if it had not already done so, but found that the state district court correctly denied petitioner's claims of prosecutorial misconduct and ineffective assistance of counsel.¹⁸ On April 19, 2011, petitioner filed a writ application with the Louisiana Supreme Court in which he addressed only his claims of prosecutorial misconduct.¹⁹ The Louisiana Supreme Court denied relief without stated reasons on March 23, 2012.²⁰

In the interim, on April 5, 2011, the state district court denied petitioner's motion relating to whether it was error to admit the victim's testimony at trial without a pretrial determination of voluntariness, finding that the victim's statements were not subject to suppression as there was no state actor and therefore no constitutional protection.²¹ It also denied petitioner's motion to amend and supplement, finding that any future supplemental filings were subject to the statutory provisions of La. Code Crim. P. art 924 et seq.²² Petitioner filed a related writ application with the Louisiana Fifth Circuit on May 17, 2011.²³ On June 17, 2011, the Louisiana Fifth Circuit denied relief finding no error in the state district court's April 5, 2011 ruling.²⁴ Petitioner filed a writ application with the

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Louisiana Supreme Court on July1, 2011.²⁵ On April 9, 2012, the Louisiana Supreme Court denied petitioner's related writ application.²⁶

On July 2, 2012, Bedoya filed his original application for habeas corpus relief.²⁷ In that application, Bedoya claims (1) prosecutorial misconduct in (a) the repetitive and inflammatory introduction of copies photographs depicting the victim's injuries; (b) introduction of irrelevant photographs of a screwdriver and crescent wrench; (c) unnecessarily focusing the jury's attention on the issue of petitioner's Colombian nationality; (d) eliciting prejudicial opinion testimony from the expert witness that was outside her field of expertise; (e) eliciting testimony from the expert witness to bolster the victim's testimony; (f) eliciting testimony from the expert witness that was tantamount to a pronouncement that petitioner kidnapped and raped the victim; (g) focusing the jury's attention on the issue of "invasiveness" of the medical pelvic examination; (h) misstating evidence in opening statement and closing argument; (2) ineffective assistance of trial counsel in (a) failing to object to hearsay testimony of Dr. Lottinger; (b) failing to move to suppress the evidence obtained from the search on his residence on the basis that the search and seizure exceeded his consent; (c) failing to require the prosecution to produce the theory or methodology of its expert opinion testimony; and (d) object to the non-use of certified interpretation of the conversation between petitioner and the victim; and (3) it was error to admit the victim's testimony at trial without a pretrial determination of voluntariness.

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The State filed a response in which it claimed that petitioner failed to exhaust his ineffective assistance of trial counsel claims.²⁸ Bedoya responded that his limited ability to speak and understand English and as well as the legal assistance he received prevented him from exhausting his claims and he therefore sought a stay of proceedings.²⁹ The Court granted Bedoya's request for a stay to complete exhaustion of his ineffective assistance of trial counsel claims.³⁰

On February 19, 2013, petitioner sought reconsideration of the Louisiana Supreme Court's March 23, 2012 denial of Writ No. 11-KH-829 by filing an application for writ of certiorari in that case which he styled "For Exhaustion of Claims Presented in Original Application for Post-Conviction Relief for Satisfaction of the Federal Court There Is a Stay Pending in Federal Court for Exhaustion of These Claims Presented Herein," wherein he sought to have his claims of ineffective assistance of trial counsel reviewed. ³¹ On September 22, 2017, the Louisiana Supreme Court refused to consider the writ application citing La. S. Ct. Rule IX, § 6.³²

On January 25, 2018, this Court lifted the stay.³³ Bedoya retained counsel who, on April 5, 2018, filed an amended and supplemental petition in which he adopted the previous claims and raised an additional claim that: (4) petitioner's constitutional rights were violated

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by the failure to appoint a certified and qualified interpreter to assist him during trial as well as by the failure to have a certified interpreter...