Taylor v. Maggio, Civ. A. No. 84-708.

• Decision Date: 15 February 1984
• Docket Number: Civ. A. No. 84-708.
• Citation: 581 F. Supp. 359
• Court: U.S. District Court — Eastern District of Louisiana
• Parties: Johnny TAYLOR, Jr. v. Ross MAGGIO, Warden State Penitentiary, Angola, Louisiana and Harry Lee, Sheriff.

581 F. Supp. 359

Johnny TAYLOR, Jr. v. Ross MAGGIO, Warden State Penitentiary, Angola, Louisiana and Harry Lee, Sheriff.

Civ. A. No. 84-708.

United States District Court, E.D. Louisiana.

February 15, 1984.

Frank Sloan, Jefferson, La., for petitioner.

William C. Credo, III, Gretna, La., for respondents.

MEMORANDUM OPINION

FELDMAN, District Judge.

This matter is before the Court on Johnny Taylor, Jr.'s Application for a Stay of Execution, and Petition for Writ of Habeas Corpus. Petitioner's execution is scheduled for February 29, 1984, between the hours of 12:00 midnight and 3:00 a.m.

Petitioner bases his claims for relief on essentially two grounds:

1. Petitioner was allegedly unconstitutionally convicted on forged, altered and substituted fingerprints. (Petition at page "5a.")

2. In contravention of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), the Petitioner did not receive a fair trial in that the State failed to provide fingerprint evidence in response to counsel's specific request for scientific and other exculpatory evidence. The State allegedly violated Brady by destroying two fingerprints contained on one "lift" taken from the victim's car, and failed to advise Petitioner's counsel that the Fingerprint Log Book allegedly showed that the fingerprint "lifts" taken at the inception of the investigation, on February 10, 1980, were "no good", (no value for identification purposes).

Finally, the Petition also charges that "the State not only violated Brady by not giving the Petitioner this information, but subsequently manufactured evidence, a palmprint of Taylor's, after his arrest on June 16, 1980, and inserted this information in the Fingerprint Log Book as `½ palmprint.'" (Petition at page "5d".)

Petitioner Johnny Taylor was convicted of first degree murder, arising out of an incident discussed hereafter, in March 1981, and sentenced to death. The conviction was upheld by the Louisiana Supreme Court on October 18, 1981, rehearing denied November 19, 1982, State v. Taylor, 422 So.2d 109 (La.Sup.Ct.1982), and certiorari denied by the United States Supreme Court on April 18, 1982, ___ U.S. ___, 103 S.Ct. 1803, 76 L.Ed.2d 367.

After certiorari was denied, Petitioner filed a mandamus proceeding, (Johnny Taylor v. John Mamoulides, and Harry Lee, 24th Judicial District Court, Proceedings Number 278-117.) to compel the defendants therein to allow Petitioner and his counsel to examine Petitioner's file under the Louisiana Public Records Act. LSA-R.S. 44:2. As Petitioner explains the matter, the documents mentioned in his petition became obtainable and available only after Petitioner had exhausted all of his appeals and the criminal prosecution ceased. Thereby, these records became public records under the Louisiana Public Records Act.

Petitioner subsequently filed an Application for Post Conviction Relief in the State court using, as in the instant matter, photostatic copies obtained pursuant to his mandamus action. That petition was based on the same allegations of manufactured evidence and Brady violations as in his present petition and was denied without hearing by the 24th Judicial District Court on January 11, 1984, and on Application for a Writ of Certiorari, Prohibition, Mandamus Stay Order and Stay of Execution, by the Louisiana Supreme Court on February 3, 1984.

The Petitioner having fully exhausted his State court remedies as to the issues raised by the instant petition, the matter is properly before the Court on the Petition for Writ of Habeas Corpus, as well as the Application for a Stay of Execution.

The Louisiana Supreme Court described the facts of the crime upon which the prosecution was based as follows:

"On February 8, 1980 the victim, David Vogler, received a telephone call around 8:45 p.m. from a black male about an automobile which Vogler had placed for sale in the parking lot of Barker's in Kenner, Louisiana. Vogler left his home in his Cadillac to show the red 1976 Buick Regal to the inquirer. He was not seen alive again by Mrs. Vogler. Around 12:45 a.m. Mrs. Vogler went to the parking lot in search of her husband along with her sister and her sister's boyfriend. The red Buick was missing; the Cadillac was parked in the lot. Mrs. Vogler looked in the Cadillac window and saw her husband's coat on the front seat. She saw two police cars stopped in the lot and asked the officers if they had seen the Buick. They assured her that they would be on the look out for it. Mrs. Vogler then returned to her mother's house where she spent the night. At 9:00 o'clock the next morning she returned to the parking lot with her brother-in-law, Larry Huesman. Huesman looked inside the Cadillac and saw blood on the upholstery. Fearing foul play, Huesman dropped Mrs. Vogler off and called the police. He met Officer Averett back at the parking lot and gave the officer Mrs. Vogler's extra set of keys. When Officer Averett opened the trunk, he saw the body of David Vogler. An autopsy revealed that David Vogler died from multiple stab wounds."

State v. Taylor, 422 So.2d 109, 111-12 (La. Sup.Ct.1982).

An investigation was started by Detectives Fayard and Congemi of the Kenner Police Department. Due to the rainy weather on the night of February 8, and the morning of the 9th, the car was towed to a security garage to dry out. On February 10, technician Joseph Deidrich dusted the car for latent fingerprints. Black hairs were recovered from the ceiling of the automobile, the sun visors and the inside trunk ledge. Deidrich also vacuumed the vehicle to collect debris.

Subsequently in Alabama on June 14, 1980 local police stopped Johnny Taylor, with two companions, for traffic violation. The Petitioner was driving the missing Buick Regal. A police check of the automobile indicated it was stolen. Taylor fled from the officer under a pretext of needing to urinate while his two companions were arrested. On June 15, 1980 the two Kenner detectives drove to Millry, Alabama to interview Taylor's companions. They compared the vehicle number of the automobile to the number on the registration form to determine that it was the missing automobile Mr. Vogler was going to show for sale that fateful night. The Buick was then driven to Kenner, Louisiana.

The Louisiana Supreme Court described Taylor's arrest:

"Defendant was subsequently arrested on June 17, 1980 for an unrelated auto theft and incarcerated in Butler, Alabama. Detectives Fayard and Congemi drove to Butler on June 18 to question Taylor. Two statements were given by Taylor; neither statement satisfactorily explained how the accused came into possession of the Buick Regal. Eddie Slayton of the Alabama Bureau of Investigation took defendant's finger and palm prints and gave them to Detective Fayard. These prints, along with those taken from the Cadillac, were sent to the FBI by registered mail on June 23, 1980. Ronald Young, a latent fingerprint specialist with the FBI, compared the two sets of prints and concluded that Taylor's left palm print matched the partial palm print from the outside trunk lid based on forty points of identification. Samples of head hair taken from defendant during the interview showed similar characteristics to the hairs found in the Cadillac."

422 So.2d at 112.

I. MANUFACTURED EVIDENCE

The essence of Petitioner's first claim is apparently that the prints sent out to the FBI as described above were somehow manipulated to produce a match—that is, that the Petitioner's conviction and sentence was unconstitutionally obtained by "the State's use of forged, altered, and substituted fingerprints." (Petition at page "5c" of the attachment.)

It should be stated at the outset that the Fourteenth Amendment due process clause prohibits deliberate use of perjured testimony or falsified evidence by the prosecution, and that police knowledge of perjured testimony or falsified information is imputed to the prosecution. Rivers v. Martin, 484 F.Supp. 162, 164 (W.D.Va. 1980), and the case cited therein. However, mere conclusory allegations are not sufficient to make out a claim. Petitioner does not suggest just how the prints were altered or concocted to incriminate Taylor; he merely makes the naked charge of wrongdoing (although the State courts have specifically found he was unable to explain how he came into possession of the Buick which Mr. Vogler was going to show for sale).

Before determining whether to order the State to answer the petition or to hold an evidentiary hearing the Court must examine the petition and all exhibits to determine whether the petition plainly fails to state a claim for habeas relief, and should, therefore, be summarily dismissed. Federal Rule for Habeas Corpus Rule 4; See also, Allen v. Perini, 424 F.2d 134 (6th Cir.1970) cert. den. 400 U.S. 906, 91 S.Ct. 147, 27 L.Ed.2d 143. In order to avoid summary dismissal the petition must set out specific, substantive facts that enable the Court to determine that there is a real possibility that constitutional error has been committed. Aubut v. State of Maine, 431 F.2d 688 (1st Cir.1970). The Court must also examine the petition's factual allegations and determine whether the allegations are so "palpably incredible ... so patently frivilous or false as to warrant summary dismissal", Blackledge v. Allison, 431 U.S. 63, 97 S.Ct. 1621, 1631, 52 L.Ed.2d 136 (1977). Although the showing a petitioner should make need only be a slight one to warrant a hearing, mere naked charges without some rational basis in supportive fact are not enough. Courts should not be intimidated into obstructing the finality of criminal justice by ordering habeas hearings based on mere conclusory or fanciful charges. Thus, if the petition is "patently frivolous" or "palpably incredible", it may be summarily dismissed.

Petitioner cites Townsend v. Sain, 372 U.S. 293, 83 S.Ct. 745, 9 L.Ed.2d 770 (1963) as authority for requiring this Court to order an evidentiary hearing. This...