Coleman v. Vannoy

• Decision Date: 07 September 2018
• Docket Number: DOCKET NO. 2:18-cv-0563 SECTION P
• Parties: MARCUS VERNELL COLEMAN D.O.C. # 322817 v. DARRYL VANNOY, ET AL.
• Court: U.S. District Court — Western District of Louisiana

MARCUS VERNELL COLEMAN D.O.C. # 322817 v. DARRYL VANNOY, ET AL.

DOCKET NO. 2:18-cv-0563 SECTION P

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF LOUISIANA LAKE CHARLES DIVISION

September 7, 2018

UNASSIGNED DISTRICT JUDGE

MAGISTRATE JUDGE KAY

REPORT AND RECOMMENDATION

Before the court is a petition for writ of habeas corpus filed pursuant to 28 U.S.C. § 2254 by Marcus Vernell Coleman, who is proceeding pro se in this matter. Coleman is an inmate in the custody of the Louisiana Department of Public Safety and Corrections and is currently incarcerated at the Louisiana State Penitentiary in Angola, Louisiana. Darryl Vannoy, warden of that facility, opposes the petition. Doc. 13. Coleman has also filed a reply. Doc. 16.

This petition is referred to the undersigned for review, report, and recommendation in accordance with 28 U.S.C. § 636 and the standing orders of the court. For the following reasons IT IS RECOMMEDED that the petition for writ of habeas corpus be DENIED and DISMISSED WITH PREJUDICE.

I.BACKGROUND

A. Conviction

Coleman was charged by bill of information in the Fourteenth Judicial District, Calcasieu Parish, Louisiana, with one count of armed robbery, later amended to one count of armed robbery with a firearm, a violation of Louisiana Revised Statute §§ 14:64 & 14:64.3. Doc. 13, att. 1, p. 41. The charge related to an allegation that Coleman had taken victim Jill Dozart's purse at gunpoint after accosting her while she was walking toward a restaurant. State v. Coleman, 2010 WL 3903831, at *1-*2 (La. Ct. App. 3d Cir. 2010). Coleman proceeded to trial by jury and was convicted as charged on April 3, 2007. Doc. 13, att. 1, pp. 195-97. He was then billed as a habitual offender.¹ On October 17, 2007, a habitual offender hearing was held. There Coleman admitted to being a fourth felony offender and was sentenced to a mandatory minimum prison term of 99 years, without benefit of probation or suspension of sentence. Doc. 13, att. 2, pp. 207-19.

B. Direct Appeal

Coleman sought review in the Louisiana Third Circuit Court of Appeal, raising the following assignments of error:

1. There was insufficient evidence to support the convictions.

2. The use of hearsay testimony at his trial violated Coleman's rights under the Confrontation Clause.

Coleman, 2010 WL 3903831, at *1-*4. The court reviewed both of these claims, as well as an error patent relating to the trial court's failure to specify that the sentence be served without benefit of parole. Id. It determined that there was no merit to the sufficiency of evidence claim, that the hearsay claim could not be addressed because it was not objected to at trial, and that the error patent, although rendering the sentence illegally lenient, did not warrant relief because it had not been raised as error. Id. Coleman sought writs in the Louisiana Supreme Court, which denied same on March 4, 2011. State v. Coleman, 58 So.3d 474 (La. 2011). He did not file a petition for writ of certiorari in the United States Supreme Court. Doc. 1, p. 3.

C. State Collateral Review

Coleman filed a pro se application for post-conviction relief in the trial court on February 13, 2012.² See doc. 13, att. 4, pp. 162-85 (memorandum in support of application). There he claimed ineffective assistance of counsel, based on trial counsel's failure to object to statements violating his rights under the Confrontation Clause and failure to use a police report to impeach a witness. Id. He filed a supplement to the application on May 28, 2013, claiming that his right to due process was violated when (1) the state knowingly presented false testimony (Napue violation) and (2) he was convicted based on an unconstitutional statute/improper jury instructions. Id. at 70-84. The trial court denied the application on June 20, 2014, concluding that Coleman had already raised these issues on appeal and noting that the court had denied an application for post-conviction relief in November of 2008 while the petitioner's appeal was pending. Id. at 105. Coleman sought review in the Third Circuit which granted the writ on November 5, 2014, and remanded the case for a ruling on the merits of Coleman's claims. Id. at 112.

The trial court ruled on April 13, 2016, noting that a hearing was scheduled for the following month but that the court no longer deemed it necessary. Doc. 13, att. 5, pp. 93-94. It then determined that Coleman failed to show a basis for relief under any of his claims. Id. Coleman sought review in the Third Circuit, which granted the writ and determined that the trial court had erred and that Coleman had shown that he had received ineffective assistance on his failure to object to Confrontation Clause violation claim. Id. at 184. Accordingly, it set aside Coleman's conviction and sentence and remanded the matter for a new trial. Id. It made no statement regarding the other claims. Id. The state sought review with the Louisiana Supreme Court, which reversed the Third Circuit's ruling on April 16, 2018, because it determined that Coleman could notdemonstrate adequate prejudice from counsel's performance. State v. Coleman, 241 So.3d 297 (La. 2018). Accordingly, it reinstated the petitioner's conviction and the trial court's ruling on his application for post-conviction relief. Id.

D. Federal Habeas Petition

Coleman filed the instant petition in this court on April 22, 2018. Doc. 1; see id. at 15 (providing date of mailing). Here he raises the following claims:

1. Ineffective assistance based on counsel's failure to object to statements introduced in violation of Coleman's rights under the Confrontation Clause.

2. Evidence was insufficient to sustain the verdict.

3. His rights under the Confrontation Clause were violated.

4. Counsel was ineffective for failing to impeach a witness.

5. The state knowingly presented false evidence.

6. The statute creating the offense is unconstitutional.

Doc. 1, att. 2.³

II.STANDARDS ON HABEAS REVIEW

A. Timeliness

Federal law imposes a one-year limitation period within which persons who are in custody pursuant to the judgment of a state court may seek habeas review in federal court. 28 U.S.C. § 2244(d)(1). This period generally runs from the date that the conviction becomes final. Id. Thetime during which a properly-filed application for post-conviction relief is pending in state court is not counted toward the one-year limit. Id. at § 2244(d)(2); Ott v. Johnson, 192 F.3d 510, 512 (5th Cir. 1999). However, any lapse of time before proper filing in state court is counted. Flanagan v. Johnson, 154 F.3d 196, 199 n. 1 (5th Cir. 1998).

A state application is considered pending both while it is in state court for review and also during intervals between a state court's disposition and the petitioner's timely filing for review at the next level of state consideration. Melancon v. Kaylo, 259 F.3d 401, 406 (5th Cir. 2001). The limitations period is not tolled, however, for the period between the completion of state review and the filing of the federal habeas application. Rhines v. Weber, 125 S.Ct. 1528 (2005). Accordingly, in order to determine whether a habeas petition is time-barred under the provisions of §2244(d) the court must ascertain: (1) the date upon which the judgment became final either by the conclusion of direct review or by the expiration of time for seeking further direct review, (2) the dates during which properly filed petitions for post-conviction or other collateral review were pending in the state courts, and (3) the date upon which the petitioner filed his federal habeas corpus petition.

B. Exhaustion and Procedural Default

Exhaustion and procedural default are both affirmative defenses that may be considered waived if not asserted in the respondent's responsive pleadings. E.g., Cupit v. Whitley, 28 F.3d 532, 535 (5th Cir. 1994). However, the federal district court may also consider both doctrines on its own motion. Magouirk v. Phillips, 144 F.3d 348, 357-59 (5th Cir. 1998). Therefore we consider any assertions by respondent under these doctrines, in addition to conducting our own review.

1. Exhaustion of State Court Remedies

The federal habeas corpus statute and decades of federal jurisprudence require that a petitioner seeking federal habeas corpus relief exhaust all available state court remedies before filing his federal petition. 28 U.S.C. § 2254(b)(1); e.g., Whitehead v. Johnson, 157 F.3d 384, 387 (5th Cir. 1998). This is a matter of comity. Ex parte Royall, 6 S.Ct. 734, 740-41 (1886). In order to satisfy the exhaustion requirement, the petitioner must have "fairly presented" the substance of his federal constitutional claims to the state courts "in a procedurally proper manner according to the rules of the state courts." Wilder v. Cockrell, 274 F.3d 255, 259 (5th Cir. 2001); Dupuy v. Butler, 837 F.2d 699, 702 (5th Cir. 1988). Each claim must be presented to the state's highest court, even when review by that court is discretionary. Wilson v. Foti, 832 F.2d 891, 893-94 (5th Cir. 1987). The exhaustion requirement is not satisfied if the petitioner presents new legal theories or entirely new factual claims in support of his federal habeas petition. Brown v. Estelle, 701 F.2d 494, 495 (5th Cir. 1983).

In Louisiana the highest court is the Louisiana Supreme Court. See LSA-Const. art. 5, § 5(a). Thus, in order for a Louisiana prisoner to have exhausted his state court remedies he must have fairly presented the substance of his federal constitutional claims to the Louisiana Supreme Court in a procedurally correct manner, based on the same general legal theories and factual allegations that he raises in his § 2254 petition.

2. Procedural Default

When a petitioner's claim is dismissed by the state court based on state law grounds, and those grounds are independent of the federal question and adequate to support the judgment, he may not raise that claim in a federal habeas proceeding absent a showing of cause and prejudice or that review is necessary "to correct a fundamental...