# Scales v. Vannoy

> District Court, M.D. Louisiana · August 23, 2024

URL: https://www.frixlaw.com/law-library/cases/10765414

## Case

- **Court:** District Court, M.D. Louisiana
- **Decided:** August 23, 2024
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA
ALFRED SCALES (#524748) CIVIL ACTION NO.
VERSUS 21-206-SDD-EWD
DARREL VANNOY, ET AL.

NOTICE
Please take notice that the attached Magistrate Judge’s Report has been filed with the Clerk
of the U. S. District Court.

In accordance with 28 U.S.C. § 636(b)(1), you have 14 days after being served with the
attached report to file written objections to the proposed findings of fact, conclusions of law, and
recommendations set forth therein. Failure to file written objections to the proposed findings,
conclusions and recommendations within 14 days after being served will bar you, except upon
grounds of plain error, from attacking on appeal the unobjected-to proposed factual findings and
legal conclusions accepted by the District Court.

ABSOLUTELY NO EXTENSION OF TIME SHALL BE GRANTED TO FILE
WRITTEN OBJECTIONS TO THE MAGISTRATE JUDGE’S REPORT.

Signed in Baton Rouge, Louisiana, on August 23, 2024.
S
ERIN WILDER-DOOMES
UNITED STATES MAGISTRATE JUDGE
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA
ALFRED SCALES (#524748) CIVIL ACTION NO.
VERSUS 21-206-SDD-EWD
DARREL VANNOY, ET AL.

MAGISTRATE JUDGE’S REPORT AND RECOMMENDATION
Before the Court is the Petition Under 28 U.S.C. § 2254 for Writ of Habeas Corpus by a
Person in State Custody, as amended, filed by Alfred Scales (“Scales”), who is representing himself
and who is incarcerated at the Louisiana State Penitentiary in Angola, Louisiana.1 The habeas
claims in this case should be dismissed. The only claim in the original habeas petition was not
properly supported, and the claims in the amended petition are untimely because they do not relate
back to the date the original petition was filed. No evidentiary hearing is required.2
I. PROCEDURAL HISTORY
On August 9, 2012, Scales was indicted on two counts of second degree murder for the
deaths of James Brown and Jamie Davenport, in violation of La. R.S. 14:30.1.3 After a jury trial,

Scales was found guilty of both counts.4 The trial court sentenced Scales to two mandatory life
sentences without the benefit of probation, parole, or suspension of sentence.5

1 R. Docs. 1 & 15.
2 Respondents filed their Procedural Objections & Answer in Opposition to Petitioner’s Original & Amended Writ of
Habeas Corpus on March 20, 2024, raising the argument that the amended petition was untimely. On April 22, 2024,
the Court ordered Scales to file a reply memorandum, by no later than May 16, 2024, to address Respondents’
argument. Almost three months have passed since the deadline. Scales did not file anything in response to the Court’s
Order and did not ask for additional time.
3 R. Doc. 11-19, p. 13.
4 R. Doc. 11-1, pp. 7-30. Scales was found guilty on Count 1 by a 10-2 verdict. The jury verdict was unanimous as
to Count 2. R. Doc. 11-17, p. 31.
5 R. Doc. 11-19, p. 11.
Scales filed a direct appeal with the Louisiana Court of Appeals for the First Circuit (“First
Circuit”), arguing that the evidence was not sufficient to support the jury’s verdicts on the charges,
and challenging the validity of the non-unanimous jury verdict on Count 1.6 The First Circuit
affirmed the convictions and sentences.7 Scales sought review at the Louisiana Supreme Court,8
which was denied on September 18, 2015.9

On December 2, 2016, Scales filed an application for post-conviction relief (“PCR
application”) with the state trial court.10 In the PCR application, he raised the following two
grounds for relief, both arising from ineffective assistance of counsel: 1) trial counsel was
ineffective for failing to investigate his mental health background and military service; 2) and for
failing to investigate/view the crime scene.11 The state opposed the PCR application. On April 3,
2018, the state trial court denied the PCR application.12 Scales sought appellate review, and the
state collateral review proceeding remained pending until March 23, 2021, when the Louisiana
Supreme Court denied review.13 On April 8, 2021, Scales filed his original habeas petition in this
Court.14

6 R. Doc. 11-8, pp. 6-38.
7 State v. Scales, 2014-0136 (La.App. 1 Cir. 9/19/14), 2014 WL 4667590.
8 R. Docs. 12-1 through 12-3.
9 State v. Scales, 2014-2201 (La. 9/18/15), 178 So.3d 139.
10 R. Doc. 11-3, pp. 1-13.
11 R. Doc. 11-3, pp. 21-37.
12 R. Doc. 11-4, p. 1.
13 State v. Scales, 2021-154 (La. 3/23/21), 312 So.3d 1096.
14 R. Doc. 1, p. 15. The original habeas petition is dated April 8, 2021, but was not filed with this Court until April 9,
2021. The petition will be considered filed as of the date it is signed under the prison mailbox rule. See Cooper v.
Brookshire, 70 F.3d 377, 379-80 (5th Cir. 1995) (Based on the prison mailbox rule, which generally applies to the
court filing of documents by Louisiana inmates representing themselves, an inmate’s pleadings are considered filed
on the date they are presented to prison officials or placed into the prison mailing system for transmission to the court,
not on the date that they are ultimately received or docketed by the court.); Vicks v. Griffin, 07-5471, 2008 WL 553186,
at *3 (E.D. La. Feb. 28, 2008).
II. LAW & ANALYSIS
In the original habeas petition, the only claim raised is “Ineffective Assistance of Counsel
(6th Amendment),” with no supporting facts.15 Scales’ bare claim of ineffective assistance of
counsel in the original petition should be dismissed.16 Scales filed an amended petition more than
a year after his conviction became final that adds new claims and facts about the ineffective

assistance of counsel claim, but Scales’ original petition can only be saved if the amended petition,
relates back to the date the original petition was filed. New claims raised for the first time in the
amended petition can also not be considered unless the amendment relates back. Because the
amended petition does not relate back, all claims in this case should be dismissed.
A. The Original Habeas Petition was Timely

Under 28 U.S.C. § 2244(d), federal habeas claims are generally subject to a one-year statute
of limitations. This period begins to run on the date the judgment becomes final through the
conclusion of direct review or through the expiration of time for seeking such review.17 If a
petitioner stops the direct appeal process before without going through all levels of available state
courts, “the conviction becomes final when the time for seeking further direct review in the state
court expires.”18 The time during which a “properly filed” application for state post-conviction or
other collateral review is “pending” in the state courts is not be counted toward the one-year
limitations period.19 On the other hand, any time when there are no properly-filed, post-conviction
or collateral review proceedings pending before the state courts counts toward the one-year period.

15 R. Doc. 1, p. 5.
16 See Tujuan Estaisyo Session v. Stephens, No. 15-0644, 2016 WL 769995, at *3 (N.D. Tex. Feb. 8, 2016), report and
recommendation adopted, No. 15-0644, 2016 WL 759645 (N.D. Tex. Feb. 26, 2016) (“bare claims of ineffective
assistance of counsel are clearly vague and insufficient to plead a Sixth Amendment claim”). See also Patterson v.
Davis, No. 15-322, 2016 WL 7429463, at *4 (N.D. Tex. Nov. 7, 2016) (“Petitioner’s grounds of ineffective assistance
of trial counsel are conclusory and should be summarily dismissed.”).
17 28 U.S.C. § 2244(d)(1)(A).
18 See Roberts v. Cockrell, 319 F.3d 690, 694 (5th Cir. 2003).
19 28 U.S.C. § 2244(d)(2).
A state post-conviction relief application is considered “pending” (1) while it is before a state court
for review; and (2) during the time authorized to file a timely application for further review at the
next level of state consideration (thirty days in the State of Louisiana, unless an allowable
extension is granted).20
Scales’ conviction became final on December 18, 2015,21 and the time to file his federal

habeas petition began to run on December 19, 2015. Nearly one year later, on December 2, 2016,
Scales filed a PCR application with the state trial court.22 At that time, 349 days had passed which
counted towards the 365 days he had to file his federal habeas application. His PCR application
remained pending until March 23, 2021, when the Louisiana Supreme Court denied relief on
review.23 From that point until he filed the original habeas petition with this Court on April 8,
2021, another fifteen (15) days passed. Therefore, Scales timely filed the original habeas petition
with one day left in the limitations period.
B. The Only Claim in Scales’ Original Habeas Petition Was Not Properly
Supported

The Supreme Court has explained that habeas applications require more information than
what would satisfy the “fair notice” standard that applies to other civil complaints.24 Rather than
just “fair notice of what the plaintiff’s claim is and the grounds upon which it rests,” petitioners in
habeas cases must “specify all the grounds for relief available” to them and “state the facts
supporting each ground.”25 Notice pleading is not enough in a habeas case; rather, the petition

20 Melancon v. Kaylo, 259 F.3d 401, 406 (5th Cir. 2001).
21 As noted above, Scales filed a direct appeal, and direct review ended when the Louisiana Supreme Court denied
review on September 18, 2015. Scales then had ninety (90) days to go to the United States Supreme Court. Because
he did not, his conviction became final at the end of that 90-day period.
22 R. Doc. 11-3, pp. 1-13.
23 Scales, 312 So.3d 1096.
24 Mayle v. Felix, 545 U.S. 644, 658-662 (2005).
25 Rule 2(c), Rules Governing Section 2254 Cases in the United States District Courts (“Habeas Corpus Rules”).
must state facts that point to a real possibility of constitutional error.26 The model form available
to help prisoners file their habeas petitions specifically instructs as follows:
CAUTION: To proceed in the federal court, you must ordinarily
first exhaust (use up) your available state-court remedies on
each ground on which you request action by the federal court.
Also, if you fail to set forth all the grounds in this petition, you
may be barred from presenting additional grounds at a later
date.27

Right beneath this warning in his original habeas petition, Scales listed the only ground for relief
as “Ineffective Assistance of Counsel (6th Amendment).28 “Conclusory allegations of ineffective
assistance of counsel do not raise a constitutional issue in a federal habeas proceeding.”29 In fact,
it is not possible to find merit in an ineffective assistance of counsel claim if the habeas petition
does not provide details regarding the alleged errors and omissions, a specific showing of how
those alleged errors and omissions were constitutionally deficient, and how they prejudiced the
petitioner’s right to a fair trial.30 The section that asks for supporting facts for this claim is blank.
Therefore, the ineffective assistance of counsel claim in the original petition should be dismissed
because it is not properly supported. However, in the amended petition, Scales again raises the
ineffective assistance of counsel claim and adds a claim for insufficiency of the evidence.31 He
provides details regarding the ineffective assistance of counsel claim that were not given in the
original habeas petition. Specifically, he alleges that his trial counsel was ineffective for failure to

26 Mayle, 545 U.S. at 655, citing Advisory Committee’s Note on Habeas Corpus Rule 4, 28 U.S.C. p. 471.
27 R. Doc. 1, p. 5 (emphasis in original).
28 Id. Scales also tried to raise a claim regarding his conviction on one count by a non-unanimous jury in the original
petition (R. Doc. 1, p. 3), but he later withdrew that claim. R. Docs. 6, 7.
29 Miller v. Johnson, 200 F.3d 274, 282 (5th Cir. 2000), citing Ross v. Estelle, 694, F.2d 1008, 1012 (5th Cir. 1992).
30 Barnard v. Collins, 958 F.2d 634, n. 11 (5th Cir. 1992) (“Barnard makes other conclusory allegations that his counsel
rendered ineffective assistance. In the absence of a specific showing of how these alleged errors and omissions were
constitutionally deficient, and how they prejudiced his right to a fair trial, we conclude that there is no merit to these
additional contentions.”).
31 R. Doc. 15, pp. 18-26. To the extent Scales raises a claim that he was not competent to stand trial (R. Doc. 15, p.
26), that claim was not raised in the original habeas petition and should be dismissed for the same reasons.
investigate the crime scene and failure to investigate/raise Scales’ competency/sanity. He also
addresses prejudice in the amended petition. Because the amended petition was filed after the one-
year time period to file a federal habeas claim expired, the details about Scale’s ineffective
assistance of counsel claim and any additional claims raised in the amended petition can only be
considered if the amendment relates back to the filing of the original habeas pleading. Otherwise,

all claims are untimely.
C. The Claims and Facts in the Amended Petition Do Not Relate Back to the
Filing of the Original Petition

Federal Rule of Civil Procedure 15, and the rules developed related to Rule 15, apply to
habeas cases.32 Amendments to pleadings made after the statute of limitations has run can relate
back to the date of the original pleading if the original and amended pleadings “ar[i]se out of the
conduct, transaction, or occurrence.”33 Even though Scales stated ineffective assistance of counsel
as a ground for relief in the original habeas petition, that is not enough for the facts in the amended
petition to relate back because he did not originally state any facts supporting this ground for relief.
For a claim to relate back, it is not enough that the new claim arises from the same constitutional
provision.34 “Just because the new claims fall under the same category, such as ineffective
assistance, does not cause them to automatically relate back.”35 Essentially, because Scales did not
provide any factual support for the ineffective assistance of counsel claim in the original habeas

32 28 U.S.C. § 2242;
33 Mayle, 545 U.S. at 655, citing Federal Rule of Civil Procedure 15(c)(2).
34 See Castillo v. Dir., Texas Dep't of Crim. Just., Corr. Institutions Div., No. 18-200, 2021 WL 6137161, at *4 (N.D.
Tex. Nov. 2, 2021), report and recommendation adopted, No. 18-200, 2021 WL 6135323 (N.D. Tex. Dec. 29, 2021)
citing U.S. v. Gonzales, 592 F.3d 675, 680 (5th Cir. 2009); Desormeaux v. Dir., TDCJ-CID, No. 13-566, 2021 WL
11007995, at *4 (E.D. Tex. June 14, 2021), report and recommendation adopted sub nom. Desormeaux v. Dir., TDCJ-
ID, No. 13-566, 2023 WL 5751428 (E.D. Tex. Sept. 6, 2023) (“new claims of ineffective assistance of counsel do not
automatically relate back to prior ineffective assistance of counsel claims merely because they violate the same
constitutional provision.”).
35 Streaty v. United States, No. 17-59, 2021 WL 485705, at *4 (N.D. Tex. Feb. 10, 2021), citing United States v.
Gonzalez, 592 F.3d 675, 680 (5th Cir. 2009)
petition, there was nothing for the amended petition to relate back to.36 The other claim(s) Scales
raises for the first time in the amended petition do not arise out of the same conduct, transaction,
or occurrence at all, so they also do not relate back to the filing of the original habeas petition.
Therefore, all claims in the original and amended petitions should be dismissed.37

D. Certificate of Appealability Should be Denied

Should Scales want to appeal a decision dismissing his habeas case, a certificate of
appealability should be denied. An appeal may not be taken to the court of appeals from a final
order in a habeas corpus proceeding “unless a circuit justice or judge issues a certificate of
appealability.”38 Although Scales has not yet filed a notice of appeal, the Court may address
whether he would be entitled to a certificate of appealability.39 A certificate of appealability may
issue only if a habeas petitioner has made a substantial showing of the denial of a constitutional
right.40 In cases where the court has rejected a petitioner’s constitutional claims on procedural
grounds, a petitioner must demonstrate that “jurists of reason would find it debatable whether the
petition states a valid claim of a denial of constitutional right and that jurists of reason would find
it debatable whether the district court was correct in its procedural ruling.”41 In cases where the
Court has rejected a petitioner’s constitutional claims on substantive grounds, a petitioner must
demonstrate that “jurists of reason could disagree with the district court’s resolution of his
constitutional claims or that jurists could conclude the issues presented are adequate to deserve

36 See Gonzalez, 592 F.3d 675, 680 (concluding that the petitioner’s amendment to add new claims of ineffective
assistance of counsel did not relate back to the filing of the original petition because the petitioner raised new kinds
of ineffective assistance based on new facts). Here, Scales provided no facts to support his claim in the original
petition.
37 Scales was instructed by the Court to address Respondents’ arguments about the untimeliness of the amended
petition but did not do so. R. Doc. 20. Because Scales did not request equitable tolling or provide any information
that might support such a claim, the issue is not reached in this Report.
38 28 U.S.C. § 2253(c)(1)(A).
39 See Alexander v. Johnson, 211 F.3d 895, 898 (5th Cir. 2000).
40 28 U.S.C. § 2253(c)(2).
41 Ruiz v. Quarterman, 460 F.3d 638, 642 (5th Cir. 2006).
encouragement to proceed further.”42 Here, reasonable jurists would not debate the denial of
Scales’ habeas application or the correctness of the procedural rulings. Therefore, if Scales seeks
to file an appeal in this case, a certificate of appealability should be denied.
RECOMMENDATION
IT IS RECOMMENDED that the Petition Under 28 U.S.C. § 2254 for Writ of Habeas

Corpus by a Person in State Custody, as amended, filed by Alfred Scales be DENIED and that this
case be DISMISSED WITH PREJUDICE, as the only claim in the original habeas petition was
not properly supported, and the claims in the amended petition are untimely because they do not
relate back to the filing of the original petition.
IT IS FURTHER RECOMMENDED that a certificate of appealability be denied if
Scales seeks to pursue an appeal in this case.
Signed in Baton Rouge, Louisiana, on August 23, 2024.
S

ERIN WILDER-DOOMES
UNITED STATES MAGISTRATE JUDGE

42 Pippin v. Dretke, 434 F.3d 782, 787 (5th Cir. 2005), quoting Miller-El v. Cockrell, 537 U.S. 322, 327 (2003).

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10765414. Public record. Not legal advice.