Verrett v. Vannoy

• Decision Date: 29 July 2019
• Docket Number: CIVIL ACTION NO. 19-0351 SECTION: "T"(5)
• Parties: BERNARD VERRETT v. DARREL VANNOY, WARDEN
• Court: U.S. District Court — Eastern District of Louisiana

BERNARD VERRETT v. DARREL VANNOY, WARDEN

CIVIL ACTION NO. 19-0351 SECTION: "T"(5)

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF LOUISIANA

July 29, 2019

REPORT AND RECOMMENDATION

This matter was referred to the undersigned United States Magistrate Judge to conduct a hearing, 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 in the United States District Courts. Upon review of the entire record, the Court has determined that this matter can be disposed of without an evidentiary hearing. See 28 U.S.C. § 2254(e)(2). For the following reasons, IT IS RECOMMENDED that the petition for habeas corpus relief be DISMISSED WITH PREJUDICE.

Procedural History

Petitioner, Bernard Verrett, is a convicted inmate currently incarcerated at the Louisiana State Penitentiary in Angola, Louisiana. On November 18, 2010, he was charged by bill of indictment with second-degree murder.¹ A jury subsequently found him guilty ascharged.² On May 7, 2012, his motions for post-verdict judgment of acquittal and for new trial were denied.³ On May 10, 2012, he was sentenced to life imprisonment at hard labor without benefit of probation, parole or suspension of sentence.⁴ His motion to reconsider the sentence was denied.

On direct appeal, he assigned as his sole ground for error that the evidence was not sufficient to support a conviction for second-degree murder. On December 27, 2013, the Louisiana First Circuit Court of Appeal affirmed his conviction and sentence.⁵ On June 20, 2014, the Louisiana Supreme Court denied his application for writ of certiorari.⁶

On September 2, 2015, Verrett submitted an application for post-conviction relief to the state district court.⁷ In that application, he asserted the following claims: (1) he was denied effective assistance of trial counsel for failing to prepare and present a viable defense that included expert-witness testimony; (2) he was refused adequate funding to hire expert witnesses to assist in preparing a defense; (3) he was improperly denied a change of venuein violation of due process and his right to a fair and impartial jury; and (4) cumulative error denied him a fair trial. On February 15, 2017, the state district court denied his application for post-conviction relief.⁸ He filed a notice of intent to seek writs and was granted a return date of April 7, 2017.⁹ He filed his related writ application with the Louisiana First Circuit on March 14, 2017.¹⁰ On May 25, 2017, Verrett's supervisory writ application was "denied on the showing made" by the Louisiana First Circuit Court of Appeal.¹¹ The court of appeal determined that the writ application did not include all pertinent documentation, but allowed him additional time, until July 20, 2017, to file a new application with the court. Verrett timely did so on July 18, 2017.¹² On September 15, 2017, the Louisiana First Circuit denied his writ application.¹³ On October 10, 2017, he filed a writ application with the Louisiana Supreme Court. On January 8, 2019, the Louisiana Supreme Court denied relief.¹⁴

On January 14, 2019, Verrett filed his federal application for habeas corpus relief asserting the same three claims for relief asserted in his post-conviction relief proceedings.¹⁵ In response, the State argues that the federal application is untimely.¹⁶ Verrett filed a reply to the State's response.¹⁷

Preliminary Review-Timeliness

The Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA") generally requires that a petitioner bring his Section 2254 claims within one year of the date on which his underlying criminal judgment becomes "final."¹⁸ With regard to finality, the UnitedStates Fifth Circuit Court of Appeals has explained:

The statute of limitations for bringing a federal habeas petition challenging a state conviction begins to run on "the date on which the [state] judgment became final by the conclusion of direct review or the expiration of the time for seeking such review." 28 U.S.C. § 2244(d)(1)(A). When a habeas petitioner has pursued relief on direct appeal through his state's highest court, his conviction becomes final ninety days after the highest court's judgment is entered, upon the expiration of time for filing an application for writ of certiorari with the United States Supreme Court. Roberts v. Cockrell, 319 F.3d 690, 693 (5th Cir. 2003).

Butler v. Cain, 533 F.3d 314, 317 (5th Cir. 2008) (emphasis added).

The Louisiana Supreme Court denied Verrett's application for writ of review associated with his direct appeal on June 20, 2014. Accordingly, for purposes of the AEDPA, his conviction became final, and his federal limitations period therefore commenced, 90 days later, on September 18, 2014. The federal limitations period expired one year later, unless that deadline was extended through tolling.

Regarding statutory tolling, the AEDPA expressly provides that "[t]he time during which a properly filed application for State post-conviction or other collateral review with respect to the pertinent judgment or claim is pending shall not be counted toward any period of limitation under this subsection." 28 U.S.C. § 2244(d)(2). After 348 days elapsed, Verrett tolled his federal limitations period by filing a post-conviction application with thestate district court on September 2, 2015. Tolling then continued uninterrupted for the duration of the post-conviction proceedings, so long as he sought supervisory review in a timely manner. Grillette v. Warden, Winn Correctional Center, 372 F.3d 765, 769-71 (5th Cir. 2004).

In this case, the State argues that tolling ceased when Verrett's first writ application filed with the Louisiana First Circuit Court of Appeal was considered defective because he failed to attach all pertinent supporting documentation.¹⁹ The State notes that a state application must be "properly filed" to toll the federal limitations period. Thus, according to the State, the improperly-filed writ application had no effect on the federal limitations period, which continued to run another 103 days until Verrett properly filed his next writ application with the intermediate court. While that position is not untenable, the Court declines to rigidly apply the rule in this case where the state court invited Verrett to correct the defects, refile his application, and provided him an extended time frame in which to do so. As instructed, Verrett timely refiled his corrected application, which the Louisiana First Circuit then considered, as did the Louisiana Supreme Court, when he filed his related writapplication from that intermediate court ruling. In this instance, the Court is unwilling to adopt the State's calculations that include untolled time attributed to the period during which Verrett's first intermediate state-court supervisory writ application was pending. See Gordon v. McCain, Civ. Action No. 15-2303, 2015 WL 9703424 (E.D. La. Dec. 22, 2015) (declining to find federal application untimely for an interruption of tolling due to technical defects in intermediate state-court writ application); Roberts v. Cain, Civ. Action No. 15-963, 2015 WL 7080546 (E.D. La. Nov. 13, 2015) (finding an implicit extension of time and no interruption of tolling attributed to intermediate state-court writ application with technical defects that was refiled within the extended time given).

The State does not allege that the subsequent supervisory writ applications filed with the Louisiana First Circuit or the Louisiana Supreme Court were untimely or otherwise defective. Thus, giving statutory tolling credit for each of Verrett's post-conviction filings from September 2, 2015 through January 8, 2019, his federal application filed on January 14, 2019, was timely. The Court will therefore consider his claims on the merits.

Facts

On direct appeal, the Louisiana First Circuit briefly summarized the facts adduced at trial:

On July 16, 2010, defendant and his wife, Kristi Verrett, went to a wedding. Following the reception, they went to Cajun Country Lounge. At about 2:00 a.m. (July 17, a Saturday), they arrived at home at Morello Court in Houma. Their three children were still awake. Defendant began badgering Kristi and calling her names. According to two of their children, Nicholas and Nicole, who testified at trial, defendant's verbal abuse of Kristi was a common occurrence.

At about 3:30 a.m., defendant and Kristi left the house to go get something to eat. While Kristi was driving their vehicle, a Toyota Corolla, she and defendant began arguing. Kristi stopped the vehicle on or near Savanne Road. Defendant retrieved a kitchen knife from the floorboard and repeatedly stabbed Kristi. He then took Kristi to a nearby swampy area and covered her body with grass. The defendant drove the Corolla to the other side of Terrebonne Parish and attempted to dispose of the vehicle by submerging it in water. The police subsequently found the Corolla underwater in a bayou at Grand Caillou.

The police began searching for defendant, but were unable to find him on Saturday. On Sunday, July 18, 2010, the police proceeded to Shrimpers Row near Butch Court after receiving information that defendant had been sighted there. As the police approached defendant, he ran and hid in a scrap yard. As more deputies arrived and commanded he come out, defendant complied. When the police attempted to seize defendant, he resisted and became recalcitrant. When one of the officers drew his Taser, defendant stopped resisting and was arrested and Mirandized. During questioning, defendant admitted he stabbed Kristi, and he took the police to the location where he dumped her body.

Dr. Susan Garcia, a forensic pathologist, performed the autopsy on Kristi. She testified at trial that Kristi had eighteen sharp-force injuries, caused by a single-edge blade, to her chest, abdomen, back, neck, shoulder, and arm.

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