Thibodeaux v. Vannoy

• Decision Date: 11 December 2019
• Docket Number: DOCKET NO. 2:18-cv-1599 SECTION P
• Parties: MARK WAYNE THIBODEAUX D.O.C. # 89963 v. DARREL VANNOY
• Court: U.S. District Court — Western District of Louisiana

MARK WAYNE THIBODEAUX D.O.C. # 89963 v. DARREL VANNOY

DOCKET NO. 2:18-cv-1599 SECTION P

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF LOUISIANA LAKE CHARLES DIVISION

December 11, 2019

CHIEF JUDGE HICKS

MAGISTRATE JUDGE KAY

REPORT AND RECOMMENDATION

Before the court is a petition for writ of habeas corpus [doc. 1] filed by pro se petitioner Mark Wayne Thibodeaux ("petitioner"). The petitioner is an inmate in the custody of the Louisiana Department of Safety and Corrections. The respondent opposes the petition [doc. 14]. The petition is now ripe for review.

This matter has been referred to the undersigned for review, report, and recommendation in accordance with the provisions of 28 U.S.C. § 636. For reasons stated below, IT IS RECOMMENDED that all claims be DENIED and DISMISSED WITH PREJUDICE.

I.BACKGROUND

A. Conviction

The petitioner was indicted by a Calcasieu Parish Grand Jury on two counts of second-degree murder and one count of attempted second degree murder, in violation of LSA-R.S. 14:30.1 and LSA-R.S. 14:27/14:30.1, respectively. Doc. 10, att. 4, p. 10. The petitioner's jury trial began on February 11, 2014. Id. at pp. 23-25. On February 13, 2014, the petitioner was found guilty as charged. Id. at pp. 26-28. On March 12, 2014, the petitioner was sentenced to life imprisonment in the custody of the Louisiana Department of Corrections for each conviction of second-degree murder to be served without benefit of probation, parole, or suspension of sentence and with credit given to him for time served. Id. at p. 29. As to the charge of attempted second degree murder, the petitioner was sentenced to serve 25 years in the custody of the Louisiana Department of Corrections, to be served without benefit of probation, parole or suspension of sentence, and with credit given to him for time served. Id. The sentences were ordered to run concurrently. Id.

B. Direct Appeal

Petitioner, through counsel, timely filed a direct appeal in the Louisiana Third Circuit Court of Appeal. On March 11, 2015, the Third Circuit Court of Appeal remanded the matter for the trial court to rule on the petitioner's pro se motions- a motion to quash the indictment filed April 26, 2013, a motion to suppress filed April 29, 2013, and a motion for speedy trial, filed April 30, 2013, which were never considered by the trial court. State v. Thibodeaux, 14-1002 (La. App. 3 Cir. 03/11/15); 162 So 3d 665. A hearing was held on July 9, 2015, wherein the trial court denied the petitioner's motions. Doc. 14, att. 10, pp. 80-150.

The petitioner again appealed to the Third Circuit, filing one brief through counsel and one brief pro se. His counseled brief raised the following assignments of error: (1) insufficient evidence to support guilty verdicts of second-degree murder; (2) state failed to establish that Thibodeaux intended to kill Joseph Newman; therefore, the state failed to meet its burden of proving he is guilty of attempted second degree murder; (3) trial court erred in failing to hold a hearing and rule on the pro-se motions prior to commencement of trial in this case, to the prejudice of petitioner; and (4) trial court erred in denying the pro-se motion to suppress the identification by Joseph Newman. Quoting from the Third Circuit's opinion petitioner's pro se assignments read as follows:

1. Denial (insidiously constructive) of the constitutional right to "assistance of counsel"... proceedings of pretrial... trial, 1-9-12 thru [sic] 2-10-14, and evidentiary hearing ... 4-16-15 thru [sic] 7-9-15. Conflict of interest . . .

2. Court erred... and was an [sic] substantial abuse of discretion... in denying defendant's pro se motion to suppress . . . (1) seizure of irrelevant (non-probative value) items (knife, wig) of undue prejudice and unrelative [sic] (no nexus of probative material value) to case matter, and (2) the purporting of inadmissible hearsay (hooded-sweatshirt, cell phone) never verified nor substantiated identity of owner . . . extremely undue prejudice and substantial and injurious effect . . . influential upon the determination of jury's verdict . . . Brecht standard . . . and (3) the court erred in failing to suppress the impermissible suggestive post-indictment identification . . . in light of Joseph Newman['s] usage of crack-cocaine and alcohol . . . state of delirium . . .

3. The court renunciated [sic] and relinguished [sic] its incumbent constitutional duty to comport to fair and impartial procedure . . . denying the defendant's constitutional right of "due process" . . . substantial irreparable injury . . . both pretrial and trial, and evidentiary hearing . . .

4. Court erred in denying defendant's pro se motion to quash indictment . . . inherented [sic] on grounds of insufficiency . . . failing to allege with sufficient clarity . . . unequivocally . . . statement of specific essential elements of material facts of identification constituting the offense charged. And cannot be left to inferences . . . essential facts . . . no indictment can be valid which does not bear the signature of the foreman of the grand jury . . .

5. The evidence was insufficient to the finding of guilty as charge[d], LSA-R.S. 14:30.1, two (2) counts . . .

6. The evidence was insufficient to the finding of guilty as charge[d], LSA-R.S. 14:27/30.1, one (1) count . . .

7. The court has erred and fail[ed] to comply with federal and state constitutions . . . statutory laws . . . and rules of court procedure . . . being in violation of the "confrontation clause" . . .

8. The court has erred and fail[ed] to comply with federal and state constitutions . . . statutory laws . . . and rules of court procedure . . . being in violation of the "Brady rule" . . .

State v. Thibodeaux, 2015-723 (La.App. 3 Cir. 4/13/2016), 190 So.3d 426, 428-430. His convictions were affirmed by the Third Circuit. Id. The Louisiana Supreme Court denied the petitioner's application for supervisory review on April 24, 2017. State v. Thibodeaux, 2016-0844 (La. 4/24/17), 220 So.3d 741.

C. State Collateral Review

The petitioner filed a pro se application for post-conviction relief in the state district court on May 1, 2017, alleging that he was denied effective assistance of counsel during the pre-trial period, that he was denied due process of law and his conviction was obtained in violation of the constitution of the United States or the State of Louisiana, that the indictments on his charges and the evidence presented at trial were insufficient to bring the case to trial and obtain a conviction and that the trial court "knowingly impeded the defendant's constitutional right to present a defense" by failing to disclose the testimony of the state's witnesses before the grand jury. Doc. 14, att. 11, pp. 75-117. The state district court denied the application on September 15, 2017. Id. at pp. 120-123. On September 26, 2017, petitioner sought writs in the Third Circuit Court of Appeal. Doc. 1, att. 4, pp. 52-69.

While the matter was pending before the Third Circuit, petitioner filed a petition for writ of habeas corpus in this Court, on April 5, 2018. Thibodeaux v. Vannoy, No. 18-cv-00483 (W.D. La., April 5, 2018). He moved to stay the matter pending review by the state court. Id. at doc. 2. On April 29, 2018, the undersigned recommended that the motion to stay be denied and the petition be denied and dismissed without prejudice. Id. at doc. 7. Judge James adopted the recommendation on June 19, 2018. Id. at doc. 9.

On July 9, 2018, the Third Circuit denied petitioner's supervisory writ application. Doc. 1, att. 4, p. 50. The petitioner then sought a writ of review in the Louisiana Supreme Court, which was denied on December 3, 2018. State ex. rel Thibodeaux v. State, 257 So.3d 191 (La. 12/3/18).

D. Federal Habeas Petition

The instant petition was filed in this court on December 7, 2018. Doc. 1. On December 27, 2018, the undersigned ordered the State of Louisiana to file a response to petitioner's writ of habeas corpus, which it did on May 13, 2019. Doc. 14. Quoting from his "On Appeal...Memorandum-of-Law in Support of Federal Habeas Corpus, § 2254(d)(1)(2); State Court Judgment..." petitioner presents the following issues for review herein:

1. Can the trial court (14^th JDC), renunciate its ministerial duty [Constitutional...], and, insidiously advertent circumvent a defendant's "constitutional" right of "assistance of counsel" for his or her defense...at every stage of adversarial proceedings (?) promugated(sic)/and, "guaranteed within the Sixth Amendment, and made incumbent by the Fourteenth Amendment - "due process clause" [?] See e.g., Powell et al v. State of Alabama, 287 U.S. 45, 53 S.Ct. 55, 77 L.Ed. 158 (1932) (citing, Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d. 799 (1963)...)...

2. Can the trial court (14^th JDC), clandestinely collaborate... with court-appointed counsel, Robert Shelton, to insidiously circumvent the defendant's [constitutional right...] ... of "effective assistance of counsel"...deliberate dereliction/missions... see e.g. U.S. v. Chronic, 466 U.S. 638, 104 S.Ct. 2039, 80 L.Ed.2d. 657 (1984) (citing Jones v. Jones, 988 F.Supp. 1000 (E.D. La. 1997); quoting, Tower v. Glover, 467 U.S. 914, 919-20, 81 L.Ed.2d. 758, 104 S.Ct. 2820 (1984)...)...

3. Can the trial court (14^th JDC), relinquish and abdicate its ministerial [constitutional duty]...inter alia... judicial stratagem [clandestine...]... of prosecutorial improprieties...subversively to circumvent the defendant's "constitutional" right of "due process of the law"...substantial irreparable injury- impairing the constitutional right to present a defense - - pre-trial...trial...evid.hrg.[?] U.S.C.A. 5, 14...

4. Did the trial court (14^th JDC), substantially err...in denying defendant's pro se motion to quash indictment, on remand [?] in that, it was ambiguous and inherent on grounds of insufficiency...failure to allege with clarity...a statement of specificity...essential elements of materialfacts of identity

...