The opinion
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
CODY BROWN CIVIL ACTION
VERSUS NO. 21-1514
DARREL VANNOY, WARDEN SECTION: AJ@(5)
ORDER & REASONS
Before the Court is the Report and Recommendation of the United States
Magistrate Judge (Rec. Doc. 18) and Petitioner’s Objection (Rec. Doc. 19). Having
considered the petition, the record, the applicable law, the Report and
Recommendation of the United States Magistrate Judge, and Plaintiff’s Objection,
the Court hereby approves the Report and Recommendation of the United States
Magistrate Judge and adopts it as its opinion in this matter.
FACTS AND PROCEDURAL BACKGROUND1
Petitioner was convicted of possession with the intent to distribute heroin and
possession with the intent to distribute cocaine and was sentenced to thirty years
imprisonment on both counts at the trial court level. Subsequently, the State filed a
multiple bill of information, and the trial court held a multiple bill hearing and
adjudicated Petitioner as a second-felony offender. The trial court vacated his
sentence on count one (heroin) and sentenced him as a second-felony offender to fifty
years’ imprisonment to be served without benefit of probation or suspension of
1 The following facts are synthesized from Petitioner’s Memorandum in Support of Application for
Writ of Habeas Corpus. (Rec. Doc. 3-1, at 3–4) and Magistrate Judge North’s Report and
Recommendation (Rec. Doc. 18, at 1–5).
sentence.
Following a remand to resolve Petitioner’s subsequently filed motions for a new
trial and to reconsider sentences, and subsequent appeal, the Louisiana Fifth Circuit
Court of Appeal affirmed Petitioner’s conviction and sentence. State v. Brown, 202
So. 3d 1203 (La. Ct. App. 5 Cir. 2016). The Louisiana Supreme Court denied
Petitioner’s application for writ of certiorari. State v. Brown, 256 So. 3d 276 (La.
2018). The United States Supreme Court also denied a petition for writ of certiorari.
Brown v. Louisiana, 139 S. Ct. 2033 (2019).
In October of 2019, Brown filed an application for post-conviction relief with
the state district court stating that (1) he was denied effective assistance of trial
counsel and (2) was denied the right to a public and fair trial. The state district court
denied the former and procedurally barred the latter. Specifically, the public and fair
trial claim was denied pursuant to Louisiana Code of Criminal Procedure article
930.4(C), which bars claims that were raised at the trial court level but not on appeal.
(Rec. Doc. 17-1, at 10). The Louisiana Fifth Circuit denied Petitioner’s supervisory
writ, and the Louisiana Supreme Court again denied relief.
On July 30, 2021, Petitioner submitted the instant federal application for
habeas corpus relief, asserting the same deficiencies as in his state court proceedings.
(Rec. Doc. 3). The State of Louisiana concedes that the federal petition was timely
filed, and the claims have been exhausted by the state courts. (Rec. Doc. 16, at 9–10).
The State of Louisiana responds with the same arguments that Petitioner’s claims of
(1) ineffective assistance of trial counsel and (2) denial of a public and fair trial are
without merit and procedurally barred, respectively. (Id. at 8–11). In the Report and
Recommendation, Magistrate Judge North reached the same conclusion for each
alleged deficiency as did the State. (Rec. Doc. 18, at 14, 30). Subsequently, Petitioner
filed the Objection now before the Court.
PARTY’S ARGUMENTS
In his Objection, Petitioner challenges Magistrate Judge North’s findings on
his denial to a public and fair trial. (Rec. Doc. 19, at 2). Specifically, Magistrate Judge
North found that Petitioner was subject to an express state law bar against his public
and fair trial claim, and that Petitioner is conflating Louisiana Code of Criminal
Procedure articles 930.4(C) and 841(A) to overcome that bar, where 841(A) was never
originally applied in the state post-conviction review. (Rec. Doc. 18, at 13).
Petitioner now objects on the grounds that the State cannot simply apply
certain bars while ignoring other statutory laws. (Rec. Doc. 19, at 2). Further,
Petitioner argues that article 930.4(C), invoked to procedurally bar the public and
fair trial claim, was not applicable in the first place because the claim had not been
raised at the trial level. (Id.). Petitioner argues that that claim “could not possibly
have been presented on appeal,” hence its appearance for the first time in post-
conviction proceedings. (Id.).
LEGAL STANDARD
A judge may designate a magistrate judge to submit to a judge of the court
proposed findings of fact and recommendations for the disposition, by a judge of the
court, of applications for posttrial relief made by individuals convicted of criminal
offenses. Within fourteen days after being served with a copy, any party may serve
and file written objections to such proposed findings and recommendations as
provided by rules of court. A judge of the court shall make a de novo determination of
those portions of the report or specified proposed findings or recommendations to
which objection is made.
DISCUSSION
Petitioner’s objection to Magistrate Judge North’s proposed bar on review of
the public and fair trial claim, is without merit. Federal courts reviewing a petition
for a writ of habeas corpus under 28 U.S.C. § 2254 “will not review a question of
federal law decided by a state court if the decision of that court rests on a state law
ground that is independent of the federal question and adequate to support the
judgment.” Coleman v. Thompson, 501 U.S. 722, 729–30 (1991). Independent means
“independent of the merits of the federal claim” Rocha v. Thaler, 626 F.3d 815, 821
(5th Cir. 2010) (quoting Finley v. Johnson, 243 F.3d 215, 218 (5th Cir. 2001)).
Specifically, the last state court rendering a judgment in the case clearly and
expressly states that its judgment rests on a state procedural bar. Harris v. Reed, 489
U.S. 255, 263 (1989). Adequate means that the rule is strictly or regularly applied
evenhandedly to the vast majority of similar claims. See Walker v. Martin, 562 U.S.
307, 316 (2011) (quoting Beard v. Kindler, 558 U.S. 53, 60–61 (2009)); Rocha, 626
F.3d at 821 (quoting Amos v. Scott, 61 F.3d 333, 339 (5th Cir. 1995)).
In the instant case, the state court clearly and expressly cited a state
procedural rule, Louisiana Code of Criminal Procedure article 930.4(C), in its
determination that Petitioner’s public and fair trial claim should be barred. (Rec. Doc.
17-1, at 10). These grounds are entirely independent of federal law, and the state
court was not faced with questions of federal law in Petitioner’s state application for
post-conviction relief. (Rec. Doc. 17-1). Additionally, this Court has repeatedly found
article 930.4(C) to be regularly and evenhandedly applied by the State in similar
cases. Faciane v. Kent, No. 20-809, 2020 WL 6489577, at *8 (E.D. La. Oct. 14, 2020);
Johnson v. Cain, No. 12-0621, 2012 WL 5363327, at *4 (E.D. La. Oct. 30, 2012); Taylor
v. Cain, No. 07–3929, 2008 WL 4186883, at *16 (E.D. La. Sep. 10, 2008). It therefore
follows that the State applied its procedural bar in a way that does not warrant
federal review at this stage. Whether the State erred in applying one bar over
another, or has misapplied its own laws, is beyond this Court’s discretion. See
Johnson v. Lensing, No. 99-0005, 1999 WL 562728, at *4 (E.D. La. Dec. 5, 2011).
A habeas petitioner may nevertheless be entitled to federal review if he or she
can show “cause” for the procedural default and “prejudice attributable thereto.”
Murray v. Carrier, 477 U.S. 478, 485 (1986). To fulfill this requirement, a petitioner
must show “something external to the petitioner, something that cannot fairly be
attributed to him[,] . . . ‘impeded [his] efforts to comply with the State's procedural
rule.’” Coleman, 501 U.S. at 753 (quoting Murray, 477 U.S. at 488). Additionally,
oversight by a petitioner’s counsel in failing to raise or recognize a post-conviction
claim, or missing procedural deadlines, do not constitute cause for procedural default.
Coleman, 501 U.S. at 280–81; Murray, 477 U.S. at 486. Where a petitioner fails to
demonstrate cause, the court need not consider whether there is actual prejudice.
Rodriguez v. Johnson, 104 F.3d 694, 697 (5th Cir. 1997). A petitioner alternatively
must show that applying the procedural bar would result in a fundamental
miscarriage of justice. Murray, 477 U.S. at 485. Fundamental miscarriages of justice
are “limited to cases where the petitioner can make a persuasive showing that he is
actually innocent of the charges against him.” Finley v. Johnson, 243 F.3d 215, 220
(5th Cir. 2001).
Here, in his original application for federal post-conviction relief (Rec. Doc. 3-
1), and instant Objection (Rec. Doc. 19), Petitioner raises no cause for procedural
default. He has failed to point to any factors external to the defense that prevented
him from raising his claim in a procedurally proper fashion on appeal or otherwise,
the very reason the State barred his claim post-conviction under 930.4(C). Any
failures on the part of Petitioner’s counsel in raising or recognizing the claim similarly
do not apply. Additionally, Petitioner has not pointed to any action or omission by the
State that prevented him from raising his claim properly.
Petitioner has likewise failed to offer any factual evidence of his innocence.
Rather, his challenges are concerned with his counsel’s performance at trial and the
evidence put on by the defense. (Rec. Doc. 3-1, at 4–5). Therefore, he has additionally
not carried his burden of showing that this Court’s failure to consider his barred claim
will result in a miscarriage of justice.
The State of Louisiana’s application of the article 930.4(C) procedural bar to
Petitioner’s claim was independent and adequate. Petitioner has failed to meet the
cause and prejudice standard for procedural default, and he has not attempted to
prove his actual innocence such that excluding his barred claim would be a
miscarriage of justice by this Court. Petitioner’s objection to Magistrate Judge
North’s findings are without merit.
CONCLUSION
Accordingly,
IT IS HEREBY ORDERED that Petitioner’s Objection (Rec. Doc. 19) is
OVERRULED.
IT IS FURTHER ORDERED the petition of Cody Brown for issuance of a
writ of habeas corpus under 28 U.S.C. § 2254, is hereby DISMISSED WITH
PREJUDICE.
New Orleans, Louisiana, this 11th day of April, 2022.
□
CARL J. BARB
UNITED STAT ISTRICT JUDGE