Falgout v. Vannoy

• Decision Date: 30 September 2021
• Docket Number: Civil Action 20-07
• Court: U.S. District Court — Eastern District of Louisiana
• Parties: DAVID FALGOUT v. DARREL VANNOY, WARDEN

DAVID FALGOUT
v.
DARREL VANNOY, WARDEN

Civil Action No. 20-07

United States District Court, E.D. Louisiana

September 30, 2021

REPORT AND RECOMMENDATION

MICHAEL B. NORTH, UNITED STATES MAGISTRATE JUDGE.

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.

Procedural History

Petitioner, David Falgout, is a convicted inmate currently incarcerated at the Louisiana State Penitentiary in Angola, Louisiana. In January 2014, Falgout was charged with two counts of aggravated rape of the victim, K.W., and one count of armed robbery of the same victim.^[1] On October 22, 2014, a jury found him guilty of two counts of attempted forcible rape and not guilty of armed robbery.^[2] On April 16, 2015, his motions for post-verdict judgment of acquittal and for a new trial were denied, and he was sentenced to serve

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20 years at hard labor without benefit of probation, parole or suspension of sentence on each count.^[3] The State filed a multiple bill of information alleging that Falgout was a third-felony offender.^[4] After a multiple-offender bill hearing the trial court vacated the original sentence and sentenced Falgout as a multiple offender to life imprisonment without benefit of probation, parole or suspension of sentence on each count.^[5] His motion to reconsider the sentence was denied.

On direct appeal, he raised two counseled assignments of error: (1) there was insufficient evidence to support the convictions and (2) the trial court erred in allowing the State to introduce evidence of his prior forcible rape conviction. Falgout also raised one pro se assignment of error alleging that (3) trial counsel was ineffective for failing to file a written objection to the multiple-offender bill. On August 24, 2016, the Louisiana Fourth Circuit Court of Appeal affirmed his convictions and sentences.^[6] On June 16, 2017, the Louisiana Supreme Court denied his application for writ of certiorari.^[7]

In March 2018, Falgout submitted his application for post-conviction relief to the state district court.^[8] In that application, he raised several claims of ineffective assistance

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of counsel: (1) trial counsel was ineffective for failing to consult with an expert in DNA analysis who would have disputed the findings of the prosecution's expert witness; (2) trial counsel was ineffective for failing to conduct adequate investigation to present a proper defense; (3) appellate counsel was ineffective for failing to assert claims on direct appeal; and (4) the admission of other crimes evidence violated his right to a fair trial and due process. On April 11, 2018, the state district court denied his application for postconviction relief.^[9] The first three claims of ineffective assistance of counsel were denied on the merits. The district court declined to consider the remaining claim, considering that "the issue was raised and fully litigated on direct appeal," pursuant to Louisiana Code of Criminal Procedure article 930.4(A). On June 28, 2018, the Louisiana Fourth Circuit denied Falgout's supervisory writ application finding no error in the lower court's "rejection of the conclusory and/or repetitive claims" or in the denial of the relator's application for postconviction relief.^[10] On October 8, 2019, the Louisiana Supreme Court denied relief, finding that he failed to show that he received ineffective assistance of counsel under the standard of Strickland v. Washington, 466 U.S. 668 (1984), and that the remaining claim was repetitive under Louisiana Code of Criminal Procedure article 930.4.^[11]

Memorandum in Support. The application does not include the day in March of 2018 on which he signed the application. However, the State does not allege that the instant federal application is untimely and simply accepts that he filed the application in March 2018.

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On or about December 16, 2019, Falgout filed the instant federal application for habeas corpus relief.^[12] In that application, he raises five claims for federal relief: (1) the State's evidence was insufficient to convict him; (2) the trial court erred in allowing the State to introduce evidence of his prior forcible rape conviction; (3) he was denied the effective assistance of trial counsel, who failed to file an objection to the multiple bill, failed to consult an expert in DNA analysis, and conducted inadequate investigation to present a viable defense; (4) the trial court erred in allowing the admission of "other crimes" evidence; and (5) appellate counsel was ineffective in failing to raise claims on direct appeal. The State concedes that the federal petition is timely and that the claims have been exhausted in the state courts.^[13] Falgout filed a memorandum in opposition to the State's response.^[14]Pursuant to this Court's order, the state-court record was supplemented to include all pertinent hearing and trial transcripts.^[15]

Facts

On direct appeal, the Louisiana Fourth Circuit summarized the facts adduced at trial:

The jury convicted the defendant of two counts of attempted forcible rape that occurred on September 2, 2013. The defendant had previously been convicted of a 1988 rape, and the State presented evidence of this rape at his trial on the present charges. With respect to the earlier rape, the State played the authenticated 911 call in connection with that rape, and then the State called former Officer William Remaudin, who investigated the rape. Remaudin stated that on June 10, 1988, he responded to a call of a rape that was in progress in the 1300 block of Esplanade Avenue. He arrived at the location, and as he walked down the block, he saw the defendant raping the victim across the

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street from where the officer was standing. When the defendant saw the officer, he jumped up, pulled up his pants, and ran toward N. Claiborne Avenue. The defendant was captured by the officer in the same block, and the victim identified him. The officer informed the jury that he testified at defendant's subsequent trial, at which the jury convicted the defendant of rape.

V.H. testified that she was the victim of the June 10, 1988 rape. She had been waiting for the Esplanade bus, but when it did not come, she began walking down Esplanade Avenue at approximately 10:00 pm. She stated that she saw someone walk across the street, and then the defendant grabbed her, put a knife to her neck, and pushed her into a setback area of a building. He demanded her money and then demanded sex. She stated that she struggled with him until he touched her with the knife, and then she submitted. He made her lie on the ground, removed her pantyhose, and raped her. She testified that when a police car arrived, the defendant got up, said he had to go, and then ran. She stated that the police captured the defendant, and she identified him at the scene. V.H. testified that the defendant kept putting the knife to her chest during the rape. She stated that she testified at defendant's trial, at which he was convicted of rape.

With respect to the present charges, the State authenticated and played the 911 call that was made by K.W.'s uncle on the morning of September 2, 2013. In the call, the uncle explained that K.W. was on her way to work when a man tried to rape her. K.W. then got on the phone and told the 911 operator that she was waiting for a bus at a stop that was located next to a construction area when a man came up to her and began speaking with her. He then got up, put a knife to her leg, and forced her go under a "bridge," where he took her bus fare and raped her. She stated that the rape occurred at Broad and New Orleans Streets.

K. W. 's testimony

K.W. testified that on the morning of September 2, 2013, she walked to the bus stop, while it was still dark, to catch the bus for her 7:00 a.m. shift. While waiting for the bus, K.W. was texting her friend when she saw a shadow walk past her. She stood up, and a man standing near her apologized for scaring her. She had never seen the man before that day. She stated that they made small talk, and he told her that he did construction work. She then looked back down at her phone, and he came up behind her, grabbed her around the neck, and placed a pocket knife to her neck. He told her not to make a sound and to follow him.

K.W. testified that the man took her under the bridge (overpass) at New Orleans and Benefit Streets. She stated that he pulled down her pants, put his finger in her vagina and anus, and touched her genital area. He then made her get on her knees, and he unsuccessfully tried to penetrate her with his penis

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several times. She testified that he then ordered her to lie down on a piece of wood that was lying on the ground, and he fondled her breasts and put his mouth on her buttocks. He told her that he would not stab her if she did not panic. She stated that he also made her lick his penis before he left her. K.W. testified that he instructed her to stay on the scene until he left. Once the man left, she went to a nearby halfway house, where she believed she would find a policeman, and she asked the people there if they had seen a man dressed in the same manner as the man who had assaulted her. They had not seen anyone meeting that description, and she then returned home, where her family called the

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