Smith v. Louisiana State

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF LOUISIANA

TERRY SMITH CIVIL ACTION

VERSUS NO. 19-13385

DARREL VANNOY, WARDEN SECTION: “B”(5)

ORDER AND REASONS

Before the Court are the Magistrate Judge’s Report and

Recommendation dismissing Terry Smith’s Petition for Habeas Corpus

Relief (Rec Doc. 18 at 1) and his Objections to the Report and

Recommendation Rec. Doc. 19. For the reasons discussed below,

IT IS ORDERED that petitioner’s objections are DENIED and the

Report and Recommendation are ADOPTED as the opinion of the court,

dismissing the instant habeas petition.

FACTUAL BACKGROUND AND PROCEDURAL HISTORY

Petitioner Terry Smith is an inmate currently incarcerated at

Louisiana State Penitentiary in Angola, Louisiana. Rec. Doc. 18 at

1. In March 2014, a grand jury returned a multicount indictment

charging Petitioner with two counts of aggravated rape, one count

of sexual battery, and three counts of aggravated incest. Id. at

1-2. These six counts involved the same victim, his minor step-

daughter and occurred at various times between 2004 and 2011. Id.

at 1; Rec. Doc. 15 at 1. Petitioner testified at trial and denied

all of the victim’s allegations by providing work-related alibis.

Rec. Doc. 15 at 3. Petitioner also admitted to having a previous

conviction of sexual battery involving his minor step-daughter.

Id.

In January 2016, a jury found petitioner guilty on all six

counts. Rec. Doc. 18 at 2. He motioned for a new trial and for

post-verdict judgment of acquittal, both of which the trial court

denied. Id. Petitioner Smith was sentenced to two terms of life

imprisonment for aggravated rape, fifty years for sexual battery,

and three terms of fifteen years each for aggravated incest, all

to be served consecutively and without benefit of probation, parole

or suspension of sentence. Id. The trial court denied petitioner’s

motion to reconsider the sentences. Id.

Petitioner’s appointed counsel filed an Anders brief on

direct appeal to the Louisiana First Circuit Court of Appeals.

Rec. Doc. 18 at 2. The First Circuit affirmed the convictions and

the sentences for count one, two and three. Id. Additionally, the

First Circuit affirmed as amended the sentences on counts four,

five and six to delete the parole restriction. Id. The case was

remanded to the trial court to correct the minute entry and

commitment order to reflect the amended sentences. Id. Petitioner

did not file any other direct appeals. Id. Thus, his conviction

became final on May 20, 2017. Rec. Doc. 15 at 1.

On August 13, 2017, petitioner submitted an application for

post-conviction relief to the state district court claiming that

he was factually innocent of the offenses. Rec. Doc. 18 at 3. He

provided bank statements and employment records to establish his

whereabouts on the alleged dates of the incidents and to dispute

the victim’s testimony. Id. The State responded by asserting that

the attached documents were not newly discoverable nor were they

unavailable for trial. Id. Additionally, the State argued that the

claim of actual innocence is not a cognizable ground for post-

conviction relief. Id. On July 11, 2018, the state district court

denied petitioner’s application for post-conviction relief because

he failed to state a cognizable claim as articulated in State v.

Pierre, 14-0873 (La. 10/15/13), 125 So.3d 403 and State v. Conway,

01-2808 (La. 4/12/02), 816 So.2d 290. Rec. Doc. 18 at 3-4.

On August 13, 2018, petitioner filed an application for writ

of review in the Louisiana First Circuit Court of Appeals. Rec.

Doc. 15 1-2. The First Circuit denied his application on November

30, 2018. Id. Then, on December 17, 2018, petitioner filed an

application for writ of review with the Louisiana Supreme Court.

Rec. Dec. 15 at 2. On October 1, 2019, the court denied his related

application for supervisory writ of review because he failed to

show that he is factually innocent under the Conway standard. Rec.

Doc. 18 at 4.

On November 14, 2019, petitioner filed a federal application

for habeas corpus relief based on two grounds for relief, claiming

actual innocence and that it is unconstitutional to hold a

factually innocent person in prison. Rec. Doc. 18 at 4. On January

23, 2020, the State filed a response conceding timeliness and

exhaustion but argued that the claim of actual innocence lacks

merit. Rec. Doc. 15 at 5-6. On May 15, 2020, Magistrate North

recommended that petitioner’s application be dismissed with

prejudice. Rec. Doc. 18 at 14. On May 28, 2020, petitioner timely

objected to the latter recommendation. Rec. Doc. 19.

For pure questions of fact, factual findings are presumed to

be correct. See 28 U.S.C. § 2254(e)(1) (“In a proceeding instituted

by an application for a writ of habeas corpus . . . a determination

of a factual issue made by a State court shall be presumed to be

correct”). The applicant has the burden of rebutting the

presumption by clear and convincing evidence. See id. However, a

writ of habeas corpus may be granted if the adjudication of the

claim on the merits “resulted in a decision that was based on an

unreasonable determination of the facts in light of the evidence

presented in the State court proceeding.” 28 U.S.C. § 2254(d)(2);

Hankton v. Boutte, 2018 U.S. Dist. LEXIS 126899 *1, *10 (E.D. La

June 29, 2018).

For pure questions of law and mixed questions of law and fact,

a state court’s determination is reviewed under § 2254(d)(1). See

Hill v. Johnson, 210 F.3d 481, 485 (5th Cir. 2000). Specifically,

with mixed questions, a state court’s determination receives

deference unless the decision was either contrary to federal law

or involved an unreasonable application of federal law. See 28

U.S.C. § 2254(d)(1); Hill, 210 F.3d at 485.

A state court’s decision is contrary to federal law if (1)

the state court applies a rule different from the governing law

set forth in the Supreme Court’s cases or (2) the state court

decides a case differently than the Supreme Court when there are

“materially indistinguishable facts.” See Poree, 866 F.3d at 246;

Wooten v. Thaler, 598 F.3d 215, 218 (5th Cir. 2010).

The “unreasonableness” of a state court’s determination is

not about whether it was incorrect but rather if it was objectively

unreasonable. Boyer v. Vannoy, 863 F.3d 428, 454 (5th Cir. 2017).

The court in Boyer stated that the determination must not be

“merely wrong” and that “clear error” will not be enough to

overturn a state court’s determination. See id; see also Puckett

v. Epps, 641 F.3d 657, 663 (5th Cir. 2011) (finding an incorrect

application of the law will be affirmed if it is not also

unreasonable). Thus, even if a state court incorrectly applies

Supreme Court precedent, that mistake alone, does not mean that a

petitioner is entitled to habeas relief. See Puckett, 641 F.3d at

663.

The Fifth Circuit does not recognize free standing claims of

actual innocence on federal habeas review. Furthermore, even if a

claim of actual innocence was recognized on federal habeas review,

petitioner Smith did not satisfy the rigorous standard required to

prove actual innocence.

First, Smith claims that the state courts incorrectly applied

the Conway standard when analyzing his actual innocence claim

because the Louisiana Supreme Court states in Pierre that it has

never adopted this standard. Rec. Doc. 18 at 9; Rec. Doc. 19 at 3.

Instead, he proposes that federal law should govern actual

innocence claims. Id.

In Pierre, the Louisiana Supreme Court explained that it has

yet to hold that actual innocence claims not based on DNA evidence

are cognizable in application for post-conviction relief. See

Pierre, 14-0873 at 6, 125 So.3d at 407. However, the Louisiana

Supreme Court did recognize this type of claim in Conway. Id.

Assuming an actual innocence claim is cognizable in an application

for post-conviction relief, the court stated that the claim “must

necessarily involve new, material, noncumulative and conclusive

evidence which meets an extraordinarily high standard, and which

undermines the prosecution’s entire case.” Id (internal quotes

omitted).

Here, the Louisiana Supreme Court reviewed and denied the

petitioner’s application because his evidence did not meet the

Conway standard. Rec. Doc. 18 at 4. However, this Court “is limited

to deciding whether a conviction violated the Constitution, laws,

or treaties of the United States.” Estelle v. McGuire, 502 U.S.

62, 68. Federal Courts do not “reexamine state court determinations

on state-law questions.” Id. at 67-68. Therefore, we will not

examine whether the Louisiana Supreme Court was correct in applying

the Conway standard.

Second, the United States Supreme Court has yet to recognize

a claim of actual innocence as an independent ground for relief in

federal habeas corpus proceedings. See Herrera v. Collins, 506

U.S. 390, 400 (1993). Thus, the Fifth Circuit does not normally

recognize this type of claim. See Kinsel v. Cain, 647 F.3d 265,

270 n. 20 (5th Cir. 2011); see also Keil v. McCain, Civ. Action

18-9410, 2019 WL 2439424, at *30 (E.D. La. May 21, 2019),

recommendation adopted 2019 WL 2437177 (E.D. La. June 11, 2019);

Brown v. Vannoy, Civ. Action 19-9121, 2019 WL 2396793, at *1-2

(E.D. La. May 20, 2019), recommendation adopted 2019 WL 2395533

(E.D. La. June 6, 2019), aff’d 2020 WL 1778269 (5th Cir. 2020).

Therefore, we decline relief on the actual innocence claim.

Even if a freestanding claim of actual innocence was

recognized, petitioner did not satisfy the standard to prove his

actual innocence. In order to establish an actual innocence claim,

the applicant must “support his allegations of constitutional

error with new reliable evidence whether it be exculpatory

scientific evidence, trustworthy eyewitness accounts, or critical

physical evidence—that was not presented at trial.” Schlup v. Delo,

513 U.S. 298, 324 (1995). Additionally, “[e]vidence does not

qualify as ‘new’ under the Schlup actual-innocence standard if it

was always within the reach of petitioner’s personal knowledge or

reasonable investigation.” Tyler v. Davis, 768 Fed. Appx. 264, 265

(5th Cir. 2019)(internal quotes omitted). Furthermore, the

applicant must show “that in light of the new evidence, no juror,

acting reasonably, would have voted to find him guilty beyond a

reasonable doubt.” Id. (citing McQuiggin v. Perkins, 569 U.S. 383,

386 (2013)).

Petitioner did not meet this standard. He failed to support

his actual innocence claim with new evidence. Instead, he submitted

bank statements and employment records that he conceded were

readily available at trial. Rec. Doc. 18 at 12. However, he advises

his counsel chose not to introduce the records at trial. Id.

In Floyd v. Vannoy, the United States Fifth Circuit held that

Floyd established an actual innocence claim by presenting

fingerprint-comparison results.1 894 F.3d 143, 155 (5th Cir. 1991).

These results were readily available at the bench trial but were

withheld from the judge, defense and the prosecution. Id. at 156.

The Fifth Circuit found that the fingerprint-comparison results

were new evidence because it was not presented at the bench trial

and remained unknown to the judge and the parties. Id.

1 Floy established his actual innocence and thus allowed the Fifth Circuit to

consider his time-barred Brady claims.

This case differs tremendously from Floyd. Unlike in Floyd

where neither party had knowledge of the evidence, the defense in

this case had knowledge of the petitioner’s employment and bank

records. Rec Doc. 15 at 12. Because these records were not unknown

to the defense, the records are not considered new evidence.

Petitioner asserts that the records would have corroborated

his alibi testimony regarding his whereabouts on some of the dates

that the incidents occurred. Id. Petitioner testified at trial

that he was out of state for work during the dates of the alleged

incidents. Id. Petitioner claims that these records, if presented

to the jury, would have discredited the victim’s testimony. Id. To

satisfy the Schlup actual-innocence standard, petitioner must show

that in light of these records no reasonably juror would have found

him guilty beyond a reasonable doubt.

The records do not rise to the high standard of proving

his factual innocence. The victim testified that she had

trouble recalling the exact dates when the various incidents

occurred. Id. at 13. The victim also gave a range of dates

for when the incidents occurred. Rec. Doc. 15 at 11.

Furthermore, the victim was able to recall specific details of

the incidents that were corroborated by the other witness. Rec.

Doc. 18 at 13. The discrepancies in the dates did not diminish

the fact that the incidents with petitioner Smith took place.

Because the supporting evidence is not considered new and it fails

to meet the Schlup actual-innocence standard, petitioner fails

to establish an actual innocence claim.

New Orleans, Louisiana, this 3rd day of June 2021

____________________________________

SENIOR UNITED STATES DISTRICT JUDGE