Dannie Lee Lafleur La. Doc v. Cain, CIVIL ACTION NO. 6:15-cv-1978 SECTION P

CourtUnited States District Courts. 5th Circuit. United States District Courts. 5th Circuit. Western District of Louisiana
Docket NumberCIVIL ACTION NO. 6:15-cv-1978 SECTION P
Decision Date22 December 2015




December 22, 2015




Pro se petitioner Dannie Lee Lafleur, an inmate in the custody of the Louisiana Department of Corrections, filed the instant petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254 on June 30, 2015. Petitioner attacks his 2012 conviction for first degree murder for which he was sentenced to life imprisonment by the Thirteenth Judicial District Court for Evangeline Parish, Louisiana.

This matter has been referred to the undersigned for review, report, and recommendation in accordance with the provisions of 28 U.S.C. § 636 and the standing orders of the Court.

For the following reasons, IT IS RECOMMENDED that the instant petition for habeas corpus be summarily DENIED AND DISMISSED WITH PREJUDICE pursuant to Rule 4 of the Rules Governing Section 2254 Cases.

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Statement of the Case

Petitioner was charged in a single grand jury indictment by the Evangeline Parish Grand Jury with the first degree murder of Tuc Thanh Do and the armed robbery of Thao Thi Thanh Le. The charges stemmed from the May 6, 2011 armed robbery of the Tat Nail Salon in Evangeline Parish, owned by Tuc Thanh Do and his wife, Thao Thi Thanh Le. During the commission of the armed robbery, Tuc Thanh Do was shot and killed. The charges were tried together in the same proceeding. See State v. LaFleur, 114 So.3d 666, 667 (La. App. 3rd Cir. 2013).

The transcript of petitioner's post-conviction hearing reveals that prior to his May 12, 2011 arraignment, Alex Chapman ("Chapman") was appointed to represent petitioner. Thereafter, the State elected to seek the death penalty. Because he was not certified to handle a death penalty case, Chapman contacted the Capitol Defense Project to obtain two certified capitol defense counsel to represent petitioner. Mr. Price and another attorney were assigned the case. Both attorneys were present for a hearing held thereafter. [rec. doc. 1-2, pg. 31-33].

In the interim, however, petitioner had retained Elbert Guillory ("Guillory") to represent him. Accordingly, both capitol counsel and Chapman, all of whom were indigent defenders, were relieved of their duties. [Id.]

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At some later date, the State offered to withdraw the death penalty if petitioner would plead guilty to first degree murder. Petitioner rejected the offer and fired Guillory. Accordingly, that same date, February 16, 2012, Chapman was re-appointed. [Id., Id. at pg. 36-37, 41].

Before Chapman could contact the Capitol Defense Project attorneys (Mr. Price and the other attorney) to re-enter the case, Chapman was advised by the State that the death penalty would not be sought. Chapman therefore advised the Capitol Defense Project attorneys that he would handle the case; they likewise advised that they could not assist since it was no longer a death penalty case. [Id.; Id. at 43]. At the next opportunity, Chapman advised petitioner that the State withdrew the death penalty; from the beginning of the prosecution Chapman had also advised petitioner that he didn't think this was a death penalty case. [Id. at 41-42]. The death penalty was not waived on the record, however, until the first day of trial, June 18, 2012. [Id. at 47, 51, 54].

While Guillory had the case, Chapman continued to follow it; Chapman had also been provided the discovery even though he was not officially assigned the case. [Id. at 33, 41].

Petitioner's jury trial began on June 18, 2012, after which petitioner was found guilty on both counts, first degree murder and armed robbery. He was

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sentenced to serve consecutive sentences of life without benefit of parole and twenty five years.

Appellate counsel, Edward Bauman ("Bauman"), was appointed and through him petitioner directly appealed to the Louisiana Third Circuit Court of Appeal. The sole assignment of error asserted was that petitioner's "convictions and sentences constitute double jeopardy." [rec. doc. 1-2, p. 4, State of Louisiana v. Dannie Lee Lafleur, 2012-1383, 114 So.3d 666 (La. App. 3 Cir. 6/5/2013)]. On June 5, 2013, the Third Circuit found that petitioner's convictions did violate the prohibition against double jeopardy and accordingly, vacated petitioner's conviction and sentence for armed robbery. [Id., State of Louisiana v. Dannie Lee Lafleur, 2012-1383, 114 So.3d 666 (La. App. 3 Cir. 6/5/2013)]. In a footnote at the end of the Third Circuit's opinion, the Court cryptically stated "[t]he defendant has not appealed his conviction and sentence for first degree murder; therefore, we do not address them." [Id., rec. doc. 1-2, at pg. 9]. Neither petitioner nor the State sought further review in the Louisiana Supreme Court.

The record reveals Bauman's reasoning for raising only a double jeopardy claim in the Third Circuit. In a letter to petitioner dated June 18, 2013, Bauman explained that he only raised those issues he felt might entitle petitioner to relief. He did not address sufficiency of the evidence regarding the murder conviction "as

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there was nothing to refute the testimony of petitioner's friend and girlfriend. Had there been mention in the record of the possible relationship between the two, [he] could have shown why there [sic] testimony was biased. [However, a]s there [sic] testimony implicated both of them, it made [their testimony] credible in the eyes of the jury. . . . Any other errors [Bauman] found were minor and would be considered harmless error by the Third Circuit." Bauman additionally advised that petitioner could consider raising ineffective assistance of counsel claims by post-conviction application if petitioner told his attorney about the alleged relationship between his friend and girlfriend and counsel did not use the information at trial. [rec. doc. 9-1, pg. 3]. In a follow-up letter dated July 1, 2013, Bauman explained that the new information (presumably about a relationship between petitioner's friend and girlfriend) could be explored in post-conviction proceedings where "a full evidentiary hearing can be had." [rec. doc. 9-1, pg. 4].

On June 20, 2013, petitioner filed an application for post-conviction relief in the Thirteenth Judicial District Court seeking an out-of-time appeal with respect to his first degree murder conviction. [rec. doc. 9-1, pg. 7-1, 16-20]. An evidentiary hearing was held on September 19, 2013. [rec. doc. 9-1, pg. 25]. At that time, petitioner was granted permission to orally amend his post conviction application to add ineffective assistance of trial and appellate counsel claims. [rec.

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doc. 1-2, pg. 21, 29]. With respect to ineffective assistance of counsel, petitioner argued that trial counsel Chapman was ineffective for failing to file a Motion to quash his indictment based on double jeopardy, because Chapman failed to refer the case back to the Capitol Defense Team after Guillory withdrew, and that Chapman failed to hire a DNA expert. With respect to appellate counsel Bauman, petitioner argued that Bauman was ineffective for failing to challenge petitioner's murder conviction on grounds of sufficiency of the evidence and for failing to raise ineffective assistance of counsel claims. [rec. doc. 1-2, pg. 47, 49-52].

At the conclusion of the hearing, petitioner's application for post-conviction relief was denied. With respect to petitioner's out of time appeal, the Court found as follows:

This is not your normal situation. What I normally get, Mr. LaFleur, is someone is convicted. For some reason, the delays to appeal run, and they never get their appeal in on time. Then they come to me and say, "Hey, something happened. It got lost in the mail. My lawyer is in the hospital. . . . Something happened, and we didn't get an appeal. I want an extended time to appeal." That's the normal case. You're not a normal case. You're not a normal case because you did appeal. It was appealed. You didn't like the way it was appealed. You don't like the results, and I understand that. But you had a lawyer. That lawyer made a decision. That lawyer appealed what that lawyer thought was the appealable issue, and the Third Circuit ruled on it. Now, you want another appeal. The Code Article that you're talking about [La.C.Cr.P. art. 930.3(3)] does not give you a right to another appeal just because there was double jeopardy. It gives you a right to ask for post-conviction. . . to give you a chance for things that you

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haven't heard. For example, ineffective assistance of counsel like you just talked about with . . .your complaints about the way Mr. Chapman handled the case. But I don't believe that it gives you a right to a second appeal. You've already had one. I'm denying your right to a second appeal. You've already had one. Now you want another one. I'm denying your right to another appeal. [rec. doc. 1-2, pg. 28-29].

With respect to ineffective assistance of counsel, the Court found as follows:

Number one, Mr. Chapman testified that he got the file from Mr. Guillory. The minutes . . . say on February 16th that Mr. Guillory was allowed to withdraw from the record. Mr. Chapman was going to be the liason between the Capitol Defense team and you. He was still on the case. . . He testified he notified them. And that it was not a death penalty, so they would not take the case. He knew about it, and you knew about it before you came to trial. . . . When you went to trial, you knew it was not a death penalty case. That takes that argument and throws it out the window. The second thing is he did hire an expert. He decided it was not necessary to call her at the trial. That's a decision made in trial tactics. You can't second guess that. . . . There's nothing I heard today other than you being dissatisfied with the outcome of this case that would indicate you had ineffective assistance of counsel. The Capitol Defense Team

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