Welch v. Vannoy
| Docket Number | Civil Action 19-2295 |
| Decision Date | 03 March 2023 |
| Parties | FREDDY WELCH v. DARRELL VANNOY, WARDEN |
| Court | U.S. District Court — Eastern District of Louisiana |
SECTION “E” (4)
REPORT AND RECOMMENDATION
On May 8, 2020, the District Court dismissed the captioned 28 U.S.C § 2254 petition filed by Freddy Welch (“Welch”) as time-barred. ECF Nos. 14, 15. The United States Fifth Circuit Court of Appeals denied Welch a certificate of appealability on April 30. 2021. ECF No. 21. However, on October 31, 2022, the District Court granted Welch's motion for relief from judgment, reopened the matter, and referred the petition ECF Nos. 25, 26.
Construing the referral to be 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, the Magistrate Judge may conduct hearings, including an evidentiary hearing if necessary, and shall submit proposed findings and recommendations. 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) (2006).[1]
A thorough recitation of the state court procedural history and facts underlying the charges against Welch were presented in detail in the Court's previous Report and Recommendation. ECF No. 12. For ease of reference, that factual and procedural history is repeated here and supplemented where necessary.
Welch is a convicted inmate incarcerated in the Louisiana State Penitentiary in Angola, Louisiana.[2] On April 17, 2007, Welch was indicted by a Terrebonne Parish Grand Jury on one count of second degree murder and one count of attempted second degree murder.[3] Welch initially entered a plea of not guilty to both counts.[4]
The facts as determined at trial reflect that, on June 9, 2006 at about 6:00 a.m., two unidentified men entered the home of Kenneth Garner, Jr., and his girlfriend, Teamaya Lewis, on Prince Collins Street in Houma, Louisiana.[5] The two men walked into the bedroom where Garner, Lewis, and two of her young children were sleeping in the same bed. Lewis was awakened when one of the men, who was larger with dreadlocks and was standing on Garner's side of the bed, yelled out wanting to know where the “work” (slang for drugs) was. A second man, who was tall and skinny, was standing on Lewis's side of the bed. Both men were wearing black shirts, face coverings, and were armed with guns.
Garner told the first, larger man to “chill out” and that the “work” was not in the house. The man next to Lewis placed a pillow over her head. When Lewis tried to reach the phone, the man grabbed it. The larger man on Garner's side of the bed struck Garner with his gun and then shot him. The two men then ran out of the bedroom.
Lewis jumped from the bed and ran toward the front door. As the two men were opening the front door to leave, the larger man who shot Garner turned and fired another shot at her but missed. Garner died from his wound.
The Houma Police Department developed three suspects, Rodney Castle, Corey Stovall a/k/a “Co-Black, ” and Welch. The three suspects fled Louisiana shortly after Garner was killed.
Stovall, who was 25 years old, went to Houston, Texas. He also was tall and skinny and wore long dreadlocks. Stovall previously had lived with Lewis and Garner and was told to leave after getting into an altercation in the neighborhood. Stovall was killed in August of 2006, about a year and one-half before Welch's trial.
Welch initially went to Houston, where he had family displaced by Hurricane Katrina. He soon moved to Phoenix, Arizona. While there, he used the alias Terry Wright and was eventually arrested on other, unrelated charges.
Castle, who was 17 years old, went to Detroit, Michigan. He returned to Houma and turned himself in to police. Houma Police Detective Travis Theriot questioned Castle, who implicated Welch and Stovall in in the murder of Garner. Castle also picked out Welch and Stovall from photographic lineups.
Castle told the police that he had grown up with Stovall but did not meet Welch until the night of the murder. After taking him on a trip to buy ecstasy, the two men took Castle on a robbery. Welch had Castle drive them to the area of the house and remain in the car. A short time after Welch and Stovall exited the car, Castle heard one or two gunshots, and Stovall and Welch ran back to the car. Castle started to drive off when Welch pointed a gun at him and told him to stop the car. Castle was able to stop and jump from the car. He ran away to hide behind a nearby trailer. Based on the information received from Castle, Detective Theriot had Welch extradited back to Terrebonne Parish where he was indicted for Garner's murder.
The attempted second degree murder count was severed and eventually, a nolle prosequi on that charge was entered.[6] However, on February 19 through 22, 2008, Welch was tried before a jury for the second degree murder of Garner and found guilty as charged.[7] At a hearing held March 10, 2008, the Trial Court denied Welch's motions for a new trial and for post-verdict judgment of acquittal.[8] During the hearing, Welch waived legal delays, and the Court sentenced him to life in prison without benefit of parole, probation, or suspension of sentence.[9]
Welch was granted an out-of-time appeal on October 10, 2008.[10] His appointed appellate counsel asserted that the evidence was insufficient to support the verdict.[11] On February 12, 2010, the Louisiana First Circuit affirmed Welch's conviction finding no merit in the claim.[12]
The Louisiana Supreme Court denied Welch's related writ application without stated reasons on October 1, 2010.[13] Welch's conviction was final 90 days later, on December 30, 2010, [14]because he did not file for review with the United States Supreme Court. Ott v. Johnson, 192 F.3d 510, 513 (5th Cir. 1999) (period for filing for certiorari with the United States Supreme Court is considered in the finality determination under 28 U.S.C. § 2244(d)(1)(A)); U.S. Sup. Ct. Rule 13(1); see, Jiminez v. Quarterman, 555 U.S. 113, 121 (2009) ().
On January 2, 2013, Welch filed a motion for leave to file a supplemental and amended application for post-conviction relief, in which he asserted that his counsel was ineffective for failing to object and request a limiting jury instruction on other crimes evidence.[15] The state trial court denied the motion on February 14, 2013, for lack of proof that an original application had been filed.[16]
On May 8, 2013, the Louisiana First Circuit granted Welch's related writ application and remanded with instructions for the state trial court to hold an evidentiary hearing to determine whether Welch timely filed a prior application for post-conviction relief under the applicable mailbox rule.[17] At a June 26, 2013, hearing, the Trial Court appointed counsel to assist Welch and over the next year, continued the evidentiary hearing several times at the urging of Welch's counsel.[18] On December 9, 2014, the Court received evidence and determined that Welch had filed his original application for post-conviction relief under the applicable mailbox rule on November 21, 2011, when he handed it to prison officials for mailing to the state court.[19]
Welch then submitted a memorandum addressing his post-conviction claims:[20] (1) the State excluded from the jury venire several prospective jurors based solely on race; (2) the trial court allowed the prosecution to present other crimes evidence without conducting a hearing pursuant to State v. Prieur, 277 So.2d 126 (1973);[21] and (3) counsel was ineffective for (a) failing to move for mistrial when the State admitted other crimes evidence and commented on Welch's criminal history, all admitted without a Prieur hearing, and (b) for failing to interview Lewis and present her favorable testimony at trial. The state court also considered the 2013 supplemental ineffective assistance of counsel claim, which urged that counsel was ineffective for failing to object and request a limiting instruction on other crimes evidence.
After receiving the State's response, on October 30, 2015, the state trial court denied the first claim of jury discrimination finding no record support and no merit in the claim.[22] The Court scheduled the remaining claims for evidentiary hearing. After numerous other continuances, the Court heard the matter on April 19, 2017.[23] On May 31, 2017, the Court denied relief on the application finding no merit in the remaining claims.[24] Eventually, on February 18, 2018, the Louisiana First Circuit denied Welch's related writ application without stated reasons.[25] On February 25, 2019, the Louisiana Supreme Court also denied Welch's subsequent writ application finding that he failed to show ineffective assistance under the standards of Strickland v. Washington, 466 U.S. 668 (1984).[26] The Court further held that Welch failed to meet his burden of proof on the remaining claims.
Since that time, Welch has been granted by the state trial court, a copy of the voir dire transcript and viewing of the jury poll results from his trial.[27] Welch also moved for and was denied the opportunity for a post-conviction plea discussion for a revised sentence.[28]
On March 28, 2019, after correction of certain deficiencies, the clerk of this Court filed Welch's federal ...
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