Preston v. Vannoy, CIVIL ACTION NO. 20-255 SECTION: "T"(1)

CourtUnited States District Courts. 5th Circuit. United States District Court (Eastern District of Louisiana)
Docket NumberCIVIL ACTION NO. 20-255 SECTION: "T"(1)
Decision Date15 May 2021




May 15, 2021


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.

I. State Court Factual and Procedural Background

Petitioner, Joshua Preston, is a state prisoner incarcerated at the Louisiana State Penitentiary in Angola, Louisiana. On June 14, 2012, Preston was charged by a bill of indictment with second degree murder of Alfonso Silver in violation of La. Rev. Stat. § 14.30.1, felon in possession of a firearm in violation of La. Rev. Stat. § 14:95.1, and armed robbery in violation of La. Rev. Stat. § 14:64.1 After a trial, a jury found petitioner guilty as charged.2 The trial court

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denied petitioner's motion for motion for new trial.3 On July 10, 2014, the trial court sentenced petitioner to life imprisonment as to count one, twenty years as to count two, and forty years as to count three, each sentence to be served concurrently and without the benefit of probation or suspension of sentence.4 In July 14, 2014, petitioner filed a supplemental motion for new trial.5 After a hearing, the trial court denied the motion on October 30, 2014.6

On October 28, 2015, the Louisiana Fifth Circuit Court of Appeal affirmed petitioner's convictions and sentences.7 The Louisiana Supreme Court denied writs without stated reasons on November 18, 2016.8 Petitioner did not file for a writ of certiorari with the United States Supreme Court.

On June 20, 2017, petitioner filed a state post-conviction application asserting nine claims.9 The trial court denied relief on October 5, 2017.10 On June 25, 2018, the Louisiana Fifth Circuit Court of Appeal affirmed the denial of all the claims but one, and remanded the one claim (denial of effective assistance of counsel for failure to investigate evidence relative to Brandon Watson, an alleged material witness) to the state district court for review because the state district court had failed to address it.11 On June 27, 2018, the state district court denied that claim.12 The Louisiana Supreme Court denied relief without reasons.13

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On January 22, 2020, petitioner filed the instant federal application seeking habeas corpus relief in which he asserts the following claims for relief:14 (1) the trial court erred in denying petitioner's motion to suppress an in-person lineup because he was denied the right to an attorney; (2) the trial court erred in refusing to grant a mistrial when it refused to replace two sleeping jurors; (3) there was insufficient evidence to support the armed robbery conviction; (4) ineffective assistance of counsel in failing to pursue an alibi defense; (5) prosecutorial misconduct in that the prosecution allowed its witnesses to commit perjury; (6) ineffective assistance of counsel in failing to present crucial evidence; (7) ineffective assistance of counsel in failing to investigate and present evidence of video footage related to the armed robbery; and (8) ineffective assistance of counsel in failing to investigate evidence relative to a material witness, Brandon Watson.

On June 5, 2020, the state filed its response. It concedes that petitioner's petition is timely and his claims are exhausted.15 The state argues that petitioner's eighth claim relating to the failure to present the testimony of Brandon Watson is procedurally barred because he failed to return to the Louisiana Fifth Circuit Court of Appeal after the issue was denied by the state district court, but instead proceeded directly to the Louisiana Supreme Court. The state contends that the other claims are meritless. Petitioner filed a traverse claiming he is actually innocent to overcome procedural default. He also raises Martinez v. Ryan, 566 U.S. 1 (2012), and reiterates his claims.16

II. 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

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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).

As to pure questions of fact, factual findings are presumed to be correct and a federal court will give deference to the state courts' 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 courts' 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

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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, 134 S. Ct. 1697, 1705 (2014). However, the Supreme Court cautioned:

Section 2254(d)(1) provides a remedy for instances in which a state court unreasonably applies this Court's precedent; it does not require state courts to extend that precedent or license federal courts to treat the failure to do so as error. Thus, if a habeas court must extend a rationale before it can apply to the facts at hand, then by definition the rationale was not clearly established at the time of the state-court decision. AEDPA's carefully constructed framework would be undermined if habeas courts introduced rules not clearly established under the guise of extensions to existing law.

Id., at 1706 (citations and quotation marks omitted). Therefore, when the Supreme Court's "cases give no clear answer to the question presented, let alone one in [the petitioner's] favor, it cannot be said that the state court unreasonably applied clearly established Federal law." Wright v. Van Patten, 552 U.S. 120, 126 (2008) (quotation marks and brackets omitted). The Supreme Court has also expressly cautioned that "an unreasonable application is different from an incorrect one." Bell, 535 U.S. at 694. Accordingly, a state court's merely incorrect application of Supreme Court precedent simply does not warrant habeas relief. Puckett v. Epps, 641 F.3d 657, 663 (5th Cir. 2011) ("Importantly, 'unreasonable' is not the same as 'erroneous' or 'incorrect'; an incorrect application of the law by a state court will nonetheless be affirmed if it is not simultaneously unreasonable.").

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While the AEDPA standards of review are strict and narrow, they are purposely so. As the United States Supreme Court has held:

[E]ven a strong case for relief does not mean the state court's contrary conclusion was unreasonable.
If this standard is difficult to meet, that is because it was meant to be. As amended by AEDPA, § 2254(d) stops short of imposing a complete bar on federal court relitigation of claims already rejected in state proceedings. It preserves authority to issue the writ in cases where there is no possibility fairminded jurists could disagree that the state court's decision conflicts with this Court's precedents. It goes no farther. Section 2254(d) reflects the view that habeas corpus is a guard against extreme malfunctions in the state criminal justice systems, not a substitute for ordinary error correction through appeal. As a condition for obtaining habeas corpus from a federal court, a state prisoner must show that the state court's ruling on the claim being presented in federal court was so lacking in justification that there was an error well understood and comprehended in existing law beyond any

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