Smith v. Vannoy
| Decision Date | 27 July 2021 |
| Docket Number | Civil Action 20-258 |
| Parties | PHILLIP SMITH #384287 v. DARREL VANNOY, WARDEN |
| Court | U.S. District Court — Eastern District of Louisiana |
REPORT AND RECOMMENDATION
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, Phillip Smith, is a state prisoner incarcerated at the Louisiana State Penitentiary in Angola, Louisiana. On September 28, 1995, Smith was charged by a bill of indictment with first degree murder in violation of La. Rev. Stat. § 14.30.[1] The charge was subsequently amended to one count of second degree murder.[2] After a trial, a jury found petitioner guilty as charged.[3]
On June 27, 1997, the trial court sentenced petitioner to life imprisonment without the benefit of probation or suspension of sentence.[4]
On April 15, 1998, the Louisiana Fifth Circuit Court of Appeal affirmed petitioner's conviction and sentence.[5] Petitioner did not file a writ application with the Louisiana Supreme.
On July 27, 2000, petitioner filed a motion to correct illegal sentence which the state district court denied on October 2, 2000.[6] The Louisiana Fifth Circuit denied his related writ application on January 30, 2001.[7] Petitioner filed a writ application with the Louisiana Supreme Court which denied relief on December 7, 2001.[8]
Petitioner filed an application for post-conviction relief on March 8, 2001, which the state district court dismissed for failure to use the uniform application form.[9] His subsequent application was denied on April 19, 2001, on all claims except claim five.[10] On June 1, 2001, the state district court denied relief as to claim five.[11] Petitioner's related writ application to the Louisiana Fifth Circuit was denied.[12] The Louisiana Supreme Court denied his related writ application on December 7, 2001.[13]
Smith filed his first habeas application on March 20, 2002.[14] By order and judgment signed December 10, 2002, the district court dismissed the petition with prejudice as untimely. His appeal was dismissed by United States Fifth Circuit Court of Appeals for lack of prosecution.
On November 14, 2008, Smith filed a writ application with the Louisiana Supreme Court.[15]On April 24, 2009, the Louisiana Supreme Court ordered the petitioner's writ application transferred to the Louisiana Fifth Circuit Court of Appeal for consideration in accordance with State v. Cordero, 993 So.2d 203 (La. 2008).[16] On May 27, 2011, the Fifth Circuit granted reconsideration and denied the writ.[17] The Louisiana Supreme Court denied petitioner's related writ application on March 30, 2012.[18]
On March 25, 2013, following the United States Supreme Court decision in Miller v. Alabama, 567 U.S. 460 (2012), holding that the Eighth Amendment's prohibition of cruel and unusual punishment prohibits imposition of mandatory life in prison without the possibility of parole for juveniles, petitioner filed a motion to correct illegal sentencing and request for resentencing.[19] At a hearing on January 16, 2014, the state district court denied the request for resentencing.[20] The Louisiana Fifth Circuit dismissed petitioner's appeal but granted him thirty days to file a writ application in order to seek review under the court of appeal's supervisory jurisdiction.[21] Petitioner filed a writ application with the Louisiana Fifth Circuit.[22] The Louisiana Fifth Circuit denied relief finding that Miller was not subject to retroactive application on collateral review.[23]
Smith filed his second habeas application on May 14, 2012.[24] The magistrate judge denied his motion to proceed in forma pauperis finding sufficient funds in his account to pay the filing fee, and the case was closed on May 23, 2012.
Petitioner filed another motion to correct illegal sentence on April 15, 2016, following the decision in Montgomery v. Louisiana, 577 U.S. 190 (2016), wherein the United States Supreme Court held that Miller applied retroactively to defendants whose convictions and sentences became final prior to the Miller decision in 2012.[25] The state district court appointed counsel and set the matter for resentencing in light of Montgomery.[26] At a hearing on December 7, 2017, the court resentenced petitioner pursuant to Miller to life in prison observing that petitioner was eligible for parole “by operation of law.”[27] Petitioner's motions for reconsideration were denied on January 25, 2018 and April 3, 2018.[28]
On appeal, petitioner, through counsel, argued that: (1) there was error patent on the face of the record in that the uniform commitment order did not correctly reflect the ruling of the court; and (2) in the alternative, if the appellate court were to find that the state district court sentenced Smith to life without the benefit of parole, the sentence was excessive and should be reduced to life with parole.[29] In a pro se supplemental brief, petitioner raised the following claims: (1) the trial court had violated the Supremacy Clause of the United States Constitution by disobeying the substantive constitutional rule change announced in Miller and Montgomery that the Eighth Amendment demands that the court fashion an “individualized” sentence for juvenile offenders under the age of eighteen years old “whose crime reflects unfortunate yet transient immaturity”; (2) the trial court violated the petitioner's Fifth Amendment right to fair warning and protection against “unforeseeable and retroactive judicial expansion of narrow and precise language” when it amended his sentence and retroactively applied parole guidelines promulgated after he committed his offense; (3) the trial court violated the Ex Post Facto Clause when it retroactively applied parole guidelines promulgated after Smith committed his offense and those guidelines resulted in an increased measure of punishment attached to the covered crime; (4) he was denied a proportionate sentence in that the trial court failed to fashion an “individualized sentence” in violation of the Eighth Amendment; and (5) the trial court denied appellant due process when it refused to consider his motion for reconsideration of the excessiveness of his sentence.[30] On October 17, 2018, the Louisiana Fifth Circuit Court of Appeal affirmed Smith's sentence and remanded the matter to the state district court for correction of the commitment order to reflect the petitioner's parole eligibility.[31] The state district court amended the commitment as directed on October 24, 2018.[32] On November 15, 2018, Smith sought review of the court of appeal ruling by filing a writ application with the Louisiana Supreme Court.[33] On April 15, 2019, the Louisiana Supreme Court denied the writ application without stated reasons.[34]
On January 9, 2020, petitioner filed the instant federal application, his third, seeking habeas corpus relief in which he asserts the following claims for relief:[35] (1) the trial court had violated the Supremacy Clause of the United States Constitution by ignoring the substantive constitutional rule change announced in Miller and Montgomery that the Eighth Amendment demands that the court fashion an “individualized” sentence for juvenile offenders under the age of eighteen years old “whose crime reflects unfortunate yet transient immaturity;” (2) the trial court violated the petitioner's Fifth Amendment right to fair warning of the substantive penalty of the statutory text of second degree murder and retroactively applied parole guidelines promulgated after he committed his offense; (3) the trial court violated the Ex Post Facto Clause when it retroactively applied parole guidelines promulgated after Smith committed his offense and those guidelines resulted in an increased measure of punishment attached to the covered crime and (4) he was denied his right to a proportionate sentence. Petitioner's claim number five (5) appears to overlap with the legal arguments presented in claim number two (2).
On May 6, 2020, the state filed its response. Out of an abundance of caution, and despite caselaw to the contrary, the state claims petitioner's petition is untimely and successive.[36] The state concedes that his claims are exhausted.[37] The state argues that to the extent that petitioner claims that the state courts failed to file state court jurisprudence and/or state court sentencing law, his claims are not cognizable. The state contends that the other claims are meritless. Petitioner filed a traverse reiterating his claims.[38]
As an initial matter, the state raises, “in an abundance of caution, ” a limitations defense as well as claims that petitioner's habeas petition is successively filed without the required authorization from the United States Fifth Circuit Court of Appeals. The state claims that the December 7, 2017 hearing held by the state district court “modified” Smith's life sentence to the extent that the parole restriction was eliminated. The state claims that the state district court did not “exercise any judicial discretion as to the modification, and the proceeding did not alter the term of imprisonment - a life...
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