McGhee v. Vannoy

• Decision Date: 10 June 2021
• Docket Number: CIVIL ACTION NO. 20-2399 SECTION "S" (2)
• Parties: GILES MCGHEE v. DARREL VANNOY, WARDEN
• Court: U.S. District Court — Eastern District of Louisiana

GILES MCGHEE v. DARREL VANNOY, WARDEN

CIVIL ACTION NO. 20-2399 SECTION "S" (2)

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF LOUISIANA

June 10, 2021

REPORT AND RECOMMENDATION

This matter was referred to a United States Magistrate Judge to conduct hearings, 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. Upon review of the entire record, I have determined that a federal evidentiary hearing is unnecessary.¹ For the following reasons, I recommend that the petition for habeas corpus relief be DENIED and DISMISSED WITH PREJUDICE.

I. INTRODUCTION

On September 1, 2020, the Clerk of Court filed Giles McGhee's petition for federal habeas corpus relief under 28 U.S.C. § 2254, in which he asserted five claims:

(1) (a) the use of non-unanimous verdicts is unconstitutional, (b) his trial and appellate counsel were ineffective for failing to assert the claim in the appropriate proceeding, and (c) the Supreme Court's decision in Ramos v. Louisiana, 140 S. Ct. 1390 (2020), was not a new rule or prohibited by Teague v. Lane, 489 U.S. 288 (1989), and should have been retroactively applied to his conviction;(2) state trial court violated McGhee's constitutional rights by (a) limiting the scope of his counsel's voir dire questions and (b) tainting the jury with its comments on the defendant's right to testify;

(3) the evidence was insufficient to support the verdict;

(4) his counsel denied him the right to testify; and

(5) he received ineffective assistance of counsel when counsel failed to request a voice recognition test, failed to have the 911 tape analyzed for background noise, and failed to investigate.²

On March 9, 2021, after receiving a response in opposition (ECF No. 6) from the State, I issued a Report and Recommendation in which I recommended that McGhee's federal habeas corpus petition be dismissed without prejudice for his failure to exhaust state court review of these claims:

(1)(c) the Supreme Court's decision in Ramos, 140 S. Ct. at 1390, was not a new rule or prohibited by Teague, 489 U.S. at 288, and should have been retroactively applied to his conviction; and

(2)(b) the state trial court violated his constitutional rights by tainting the jury with its comments on the defendant's right to testify.³

McGhee was also given the option to dismiss these unexhausted claims and proceed to review of his remaining exhausted claims. ECF No. 9, at 19.

On March 23, 2021, McGhee objected to dismissal of his petition and requested instead that his unexhausted claims be dismissed to allow further review of the remaining claims. ECF No. 10. The District Judge granted McGhee's motion and referred the exhausted claims, outlined later in this report, to me for further review. ECF No. 11.

II. FACTUAL BACKGROUND

McGhee is a convicted inmate incarcerated in the Louisiana State Penitentiary in Angola, Louisiana. ECF No. 1, at 1. On May 11, 2012, McGhee was indicted by a Tangipahoa Parish Grand Jury on two counts of first degree murder.⁴ McGhee pled not guilty on May 17, 2012.⁵

The Louisiana First Circuit Court of Appeal summarized the facts established at trial as follows:

On April 5, 2012, at approximately 5:52 a.m., Hammond Police Department officers were dispatched to Mallard Drive in Hammond, after the reported shooting of victims Tamica Muse and Karum Smith. The shootings were reported by Muse's daughter, Tremecia Matthews, who was in her bedroom when she heard an angered voice, which she identified as the defendant's, just before gunshots were fired. After hearing what she assumed was the front door being slammed shut, Matthews called out to her mother and subsequently, after her mother did not respond, discovered the victims in her mother's bedroom. When the officers arrived, Muse (the female victim who had a tumultuous romantic relationship with the defendant) and Smith (Muse's boyfriend at the time) were lying in Muse's bed with apparent gunshot wounds. Muse suffered two gunshot wounds, including a fatal brain injury, and Smith died from a gunshot wound to the head that severed the carotid artery. The defendant was apprehended when his vehicle crashed during police pursuit. He was transported to the Louisiana State Police headquarters, where he provided an alibi during a transcribed police interview. The defendant's stepdaughter, Nicole Flippen, initially corroborated the defendant's alibi that he was at her house in Baton Rouge at the time of the shootings. Thereafter, however, she admitted that she had been untruthful, and that the defendant asked her to lie for him when he confessed to her that he committed the shootings.⁶

McGhee went to trial before a jury on February 3 through 6, 2014.⁷ The jury found him guilty as charged on both counts of first degree murder.⁸ At a March 12, 2014, hearing, the state trial court denied McGhee's motions for new trial, post-verdict judgment of acquittal, and arrest of judgment.⁹ After waiver of statutory sentencing delays, the court sentenced McGhee to serve consecutive life sentences in prison without benefit of parole, probation, or suspension of sentence.¹⁰ The court later denied McGhee's motions to reconsider the sentence.¹¹

On direct appeal to the Louisiana First Circuit, McGhee's appointed counsel argued that the state trial court violated McGhee's constitutional rights when it interrupted and limited the scope of his counsel's voir dire questions, denied the motion for mistrial based on that limitation, and tainted the jury with comments on a defendant's right to not testify.¹² On March 6, 2015, the Louisiana First Circuit affirmed McGhee's convictions and sentences.¹³ The court held that the state trial court did not err when it denied McGhee's motion for mistrial based on his claim that the state trial court interrupted the flow of defense counsel's voir dire by interjecting and admonishing defense counsel for being repetitive.¹⁴ The court also held that McGhee was precluded from arguing for the first time on appeal that the state trial court tainted the jury with its discussion of the reasons why a defendant may choose not testify. The court declared thisargument was barred from appellate review for lack of a contemporaneous objection under LA. CODE CRIM. PROC. art. 841.¹⁵

On May 2, 2016, the Louisiana Supreme Court summarily denied McGhee's related writ application, which did not include the procedurally barred "trial court tainted the jury" argument.¹⁶ McGhee did not file an application for writ of certiorari with the United States Supreme Court within ninety (90) days,¹⁷ and thus, his convictions and sentences became final on Monday, August 1, 2016.¹⁸

On January 30, 2017, McGhee submitted to the state trial court an application for post-conviction relief in which he asserted the following claims:

(1) the state failed to meet the burden of proof beyond a reasonable doubt to support the verdict;

(2) he was denied his Fifth, Sixth, and Fourteenth Amendment rights when his counsel denied him the right to testify;

(3) he was denied effective assistance of counsel when counsel failed to request a voice recognition test, have the 911 recording analyzed for background noise, and failed to investigate; and

(4) the state trial court abused its discretion when it accepted a non-unanimous jury verdict, and his counsel was ineffective for failing to object or raise the issue on appeal.¹⁹

After receiving an opposition memorandum from the State, the state trial court denied the application on January 30, 2019.²⁰ The court held that McGhee's first claim was barred from post-conviction review by LA. CODE CRIM. PROC. art 930.4(C) for his inexcusable failure to assert the claim on direct appeal. The court also held that claims two and three were barred from post-conviction review under La. Code Crim. Proc. art. 930.4(B) because McGhee inexcusably failed to assert the claims in the proceedings leading to his conviction. The court also summarily denied the fourth claim as meritless.

On April 29, 2019, the Louisiana First Circuit denied McGhee's writ application as procedurally improper under LA. APP. R. 2-18.7 and 4-9 for his failure to attach required documentation.²¹ The court gave McGhee until June 25, 2019, to file a corrected application, which he apparently did.²² The court denied his corrected writ application without stated reasons on September 17, 2019.²³

On July 24, 2020, the Louisiana Supreme Court denied McGhee's timely-filed²⁴ writ application holding that he failed to show ineffective assistance of counsel under Strickland v. Washington, 466 U.S. 668 (1984), or meet his burden of proof under LA. CODE CRIM. PROC. art. 930.2 on the remaining claims.²⁵

II. FEDERAL HABEAS PETITION

McGhee's remaining claims before the court are as follows:

(1) (a) the use of non-unanimous verdicts is unconstitutional, and (b) his trial and appellate counsel were ineffective for failing to assert the claim in the appropriate proceeding;

(2) (a) state trial court violated McGhee's constitutional rights by limiting the scope of his counsel's voir dire questions;

(3) the evidence was insufficient to support the verdict;

(4) his counsel denied him the right to testify; and

(5) he received ineffective assistance of counsel when counsel failed to request a voice recognition test, failed to have the 911 tape analyzed for background noise, and failed to investigate.²⁶

The State filed a response in opposition to McGhee's petition asserting that the petition was timely filed.²⁷ The State also addressed the exhaustion doctrine, which the court has already resolved. The State further argued McGhee's exhausted claims are without merit.

III. LAW AND ANALYSIS

The Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), Pub. L. No. 104-132, 110 Stat. 1214, comprehensively revised federal habeas corpus legislation, including 28 U.S.C. § 2254....