Marcel v. Vannoy, Civil Action 20-3278

CourtUnited States District Courts. 5th Circuit. United States District Court (Eastern District of Louisiana)
Docket NumberCivil Action 20-3278
Decision Date31 January 2022



Civil Action No. 20-3278

United States District Court, E.D. Louisiana

January 31, 2022

SECTION: “H” (3)



This matter was referred to this United States Magistrate Judge for the purpose of conducting a hearing, including an evidentiary hearing, if necessary, and submission of proposed findings of fact 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 record, the Court has determined that this matter can be disposed of without an evidentiary hearing. See 28 U.S.C. § 2254(e)(2). Therefore, for all of the following reasons, IT IS RECOMMENDED that the petition be DISMISSED WITH PREJUDICE.

Petitioner, Arty Marcel, is a state prisoner incarcerated at the Louisiana State Penitentiary, Angola Louisiana. On August 19, 2014, Marcel was charged in the Parish of Terrebonne with simple burglary of an inhabited dwelling.[1] On April 17, 2015, the bill was amended to charge Marcel with simple burglary of a shed belonging to Todd Robichaux in violation of La. Rev. Stat. § 14:62.[2] Marcel was tried before a jury on April 20 through 22, 2015, and was found guilty as charged.[3] The state filed a multiple bill of information.[4] On July 15, 2015, the trial court found


Marcel a fourth felony habitual offender and sentenced Marcel to life imprisonment to be served without the benefit of probation, parole or suspension of sentence.[5] On August 10, 2015, the trial court denied Marcel's motion for reconsideration of sentence.[6]

Marcel filed a counseled direct appeal to the Louisiana First Circuit.[7] Marcel filed a pro se supplemental brief.[8] The court affirmed Marcel's conviction, habitual offender adjudication, and sentence on June 3, 2016.[9] On May 26, 2017, the Louisiana Supreme Court denied Marcel's related writ application without stated reasons.[10] Marcel did not file a writ application with the United States Supreme Court.

On July 31, 2017, Marcel filed an application for post-conviction relief and supporting memorandum with the state district court raising the following claims: (1) he was denied the right to testify; (2) prosecutorial misconduct during closing argument; (3) the state exercised an excess number of peremptory challenges; (4) the state exercised a peremptory challenge in a discriminatory manner; (5) he was denied the right to a transcript and complete appellate review; and (6) he was denied effective assistance of counsel.[11] Marcel requested a copy of the record so that he could further develop his claims and a motion for leave to supplement his application, which the state trial court denied on September 22, 2017.[12]

On December 28, 2017, the Louisiana First Circuit granted Marcel's related writ application and instructed the trial court to provide petitioner with a copy of the trial transcript and


any other documents to which he was entitled and reconsider his motion to supplement his application.[13]

On May 29, 2018, Marcel filed a supplemental brief in which he sought dismissal of his claim that the state was allowed thirteen peremptory challenges as well as his claim that he was denied a complete transcript.[14] He raised an additional claim of insufficiency of the evidence.[15]On July 16, 2018, Marcel filed another supplemental brief claiming that his trial counsel failed to advise him of a plea offer.[16]

On July 23, 2018, the trial court granted Marcel leave to supplement his application.[17] The trial court granted an evidentiary hearing as to claims one, two, four, and six (as to trial counsel only).[18] It ordered that Marcel be furnished with a copy of the trial transcript.[19] The trial court dismissed claim three pursuant to Marcel's request and dismissed claim five alleging denial of his right to appellate review, finding that the claim should have been raised in writs to the Louisiana Supreme Court.[20] On September 27, 2018, Marcel filed yet another supplemental brief adding a claim that the state improperly amended the bill of information.[21]

The trial court held an evidentiary hearing on October 24, 2018.[22] Marcel's trial counsel, Kerry Byrne, testified, as did Marcel. On November 26, 2018, the trial court found nothing to support Marcel's claim that he was denied the right to testify.[23] The trial court found nothing


improper in the prosecutor's opening statement, closing argument, or rebuttal argument.[24] The trial court found that Marcel offered no evidence to substantiate his claim that the state exercised peremptory challenges in a discriminatory manner.[25] The trial court further found that Marcel's claim of ineffective assistance of appellate counsel was speculative and conclusory, and that he failed to his deficient performance by his trial counsel or any resulting prejudice.[26] Finally, the trial court found sufficient evidence supported Marcel's conviction.[27] By separate order, the trial court denied Marcel's claim that the state improperly amended the bill of information.[28]

On April 5, 2019, the Louisiana First Circuit denied relief on the showing made as Marcel failed to include a complete copy of the district court's ruling and other pertinent portions of the record, but allowed him time to file a new writ application.[29] Marcel's subsequent writ application was denied on August 8, 2019.[30] On July 24, 2020, the Louisiana Supreme Court denied Marcel's related writ application finding that he failed to show that he received ineffective assistance of counsel under the standard of Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), and, as to his remaining claims, he failed to satisfy his post-conviction burden of proof pursuant to La. Code Crim. P. art. 930.2.[31]

On November 24, 2020, Marcel filed the instant federal application seeking habeas corpus relief raising the following claims: (1) the trial court erred in admitting “other crimes” evidence; (2) his sentence is excessive; (3) he was denied the right to testify in his own defense; (4)


prosecutorial misconduct: (5) has was denied effective assistance of trial and appellate counsel; (6) insufficient evidence; and (7) improper amendment of the bill of information.[32] The state has filed a response conceding that that the application is timely and that Marcel's claims are exhausted. The state claims that claim number seven is procedurally barred and the remaining claims are without merit.[33] Marcel filed a traverse reiterating his claims.[34]

III. Standards of Review

The Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”) comprehensively overhauled federal habeas corpus legislation, including 28 U.S.C. § 2254. Amended subsections 2254(d)(1) and (2) contain revised standards of review for pure questions of fact, pure questions of law, and mixed questions of both. The amendments “modified a federal habeas court's role in reviewing state prisoner applications in order to prevent federal habeas ‘retrials' and to ensure that state-court convictions are given effect to the extent possible under law.” Bell v. Cone, 535 U.S. 685, 693 (2002); Langley v. Prince, 926 F.3d 145, 155 (5th Cir. 2019) (noting that the AEDPA imposes a “relitigation bar” on claims adjudicated on the merits by the state court), cert. denied, 140 S.Ct. 2676 (2020).

As to pure questions of fact, factual findings are presumed to be correct and a federal court will give deference to the state court's decision unless it “was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.” 28 U.S.C. § 2254(d)(2); see also 28 U.S.C. § 2254(e)(1) (“In a proceeding instituted by an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State court, a


determination of a factual issue made by a State court shall be presumed to be correct. The applicant shall have the burden of rebutting the presumption of correctness by clear and convincing evidence.”).

As to pure questions of law and mixed questions of law and fact, a federal court must defer to the state court's decision on the merits of such a claim unless that decision “was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States.” 28 U.S.C. § 2254(d)(1). Courts have held that the “‘contrary to' and ‘unreasonable application' clauses [of § 2254(d)(1)] have independent meaning.” Bell, 535 U.S. at 694.

Regarding the “contrary to” clause, the United States Fifth Circuit Court of Appeals has explained:

A state court decision is contrary to clearly established precedent if the state court applies a rule that contradicts the governing law set forth in the [United States] Supreme Court's cases. A state-court decision will also be contrary to clearly established precedent if the state court confronts a set of facts that are materially indistinguishable from a decision of the [United States] Supreme Court and nevertheless arrives at a result different from [United States] Supreme Court precedent.

Wooten v. Thaler, 598 F.3d 215, 218 (5th Cir. 2010) (internal quotation marks, ellipses, brackets, and footnotes omitted).

Regarding the “unreasonable application” clause, the United States Supreme Court has held: “[A] state-court decision is an unreasonable application of our clearly established precedent if it correctly identifies the governing legal rule but applies that rule unreasonably to the facts of a particular prisoner's case.” White v. Woodall, 530 U.S. 415, 426 (2014). However, a federal habeas court must be mindful that “an unreasonable application is different from an incorrect one.” Bell, 535 U.S. at...

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