Church v. Vannoy

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF LOUISIANA

FRANKLIN CHURCH (#613285)

CIVIL ACTION

VERSUS

NO. 22-426-SDD-SDJ

DARREL VANNOY, ET AL.

NOTICE

Please take notice that the attached Magistrate Judge’s Report has been filed with the Clerk

of the United States 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 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

of the Magistrate Judge which have been 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 July 31, 2025.

S

SCOTT D. JOHNSON

UNITED STATES MAGISTRATE JUDGE

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF LOUISIANA

FRANKLIN CHURCH (#613285)

CIVIL ACTION

VERSUS

NO. 22-426-SDD-SDJ

DARREL VANNOY, ET AL.

MAGISTRATE JUDGE’S REPORT AND RECOMMENDATION

This matter comes before the Court on Petitioner’s application for a writ of habeas corpus

pursuant to 28 U.S.C. § 2254. The State has filed an opposition to Petitioner’s application. See R.

Doc. 10. There is no need for oral argument or for an evidentiary hearing.

On June 24, 2022, the pro se Petitioner, an inmate confined at Louisiana State Penitentiary

in Angola, Louisiana, filed this habeas corpus proceeding pursuant to 28 U.S.C. § 2254, attacking

his 2013 criminal conviction for one count of computer-aided solicitation and indecent behavior

with a juvenile each, and seven additional counts of indecent behavior with a juvenile. Petitioner

asserts that his trial was unfair due to the introduction of other crimes evidence and evidence

obtained via an illegal search of his vehicle. Petitioner also asserts that he was subjected to double

jeopardy and that his sentence is excessive.

Procedural History

On June 14, 2013, after a jury trial, Petitioner was found guilty of one count of computer-

aided solicitation and indecent behavior with a juvenile each, and seven additional counts of

indecent behavior with a juvenile. He was sentenced to 63 years imprisonment on June 27, 2013.

Petitioner filed a direct appeal with the Louisiana First Circuit Court of Appeal, arguing that the

trial court erred in allowing the introduction of other crimes evidence, his sentence was excessive,

and the evidence was insufficient. The First Circuit affirmed Petitioner’s conviction and sentence

on September 24, 2014. Petitioner sought further review with the Louisiana Supreme Court, which

was denied on August 28, 2015.

On December 15, 2015, Petitioner filed an application for post-conviction relief, asserting

the same three claims asserted in his direct appeal and claims for ineffective assistance of counsel.

All claims were dismissed on December 21, 2021. The instant petition was filed on June 24, 2022.

Exhaustion and Procedural Default

The respondents argue that Petitioner’s Claims 1 and 2, that other crimes evidence was

wrongfully admitted at trial and that his sentence is excessive and illegal, are procedurally barred

because they are unexhausted. Respondents argue that Claim 1 was presented to the state courts,

relying exclusively on Louisiana statutes and case law, consequently Petitioner never fairly

presented a federal claim in the state courts. With regards to Claim 2, the respondents argue that

this claim was never considered on the merits by the state courts.

A habeas applicant must claim a violation of a federal constitutional right. A claim that the

trial court improperly applied state law does not constitute an independent basis for federal habeas

relief. Estelle v. McGuire, 502 U.S. 62, 67 (1991) (“We have stated many times that federal habeas

corpus relief does not lie for errors of state law.”); Narvais v. Johnson, 134 F.3d 688, 695 (5th Cir.

1998).

The exhaustion requirement is based on the statutory provision that a writ of habeas corpus

“shall not be granted unless it appears that the applicant has exhausted the remedies available in

the courts of the State.” 28 U.S.C. § 2254(b)(1)(A). The requirement is designed to give the state

courts a first opportunity to correct alleged violations of federal rights. Baldwin v. Reese, 541 U.S.

27 (2004). To satisfy it, a prisoner must fairly present his federal claim in each appropriate state

court (including a state supreme court with powers of discretionary review), thereby alerting the

state courts to the federal nature of the claim. Id.; O'Sullivan v. Boerckel, 528 U.S. 838, 844 (1999).

State courts are obligated to enforce federal law, so “they must be given the first chance—

after the state prisoner fully explains the federal claim—to correct any error.” Lucio v. Lumpkin,

987 F.3d 451, 464 (5th Cir. 2021). The federal claim must be fairly presented to the state courts to

allow them that opportunity, and a prisoner may not change the nature of his claim from state to

federal law along the way. Lucio cited the example of Duncan v. Henry, 513 U.S. 364, where the

petitioner framed his objection in state court in terms of state evidentiary law, but in the federal

courts he argued that the erroneous introduction of the evidence violated the Due Process Clause.

The Supreme Court held that the petitioner did not properly exhaust his Due Process Clause claim,

even if he presented the state court with the facts and substance of his claim in other terms.

“[F]or purposes of exhausting state remedies, a claim for relief in habeas corpus must

include reference to a specific federal constitutional guarantee, as well as a statement of the facts

that entitle the petitioner to relief.” Gray v. Netherland, 518 U.S. 152, 162-163 (1996). And “it is

not enough to make a general appeal to a constitutional guarantee as broad as due process to present

the ‘substance’ of such a claim to a state court.” Id. at 163. The determination of whether a federal

claim was fairly presented to the state courts is made by looking to the petitioner's briefs filed in

state court (rather than the state court's decision). Dye v. Hofbauer, 546 U.S. 1 (2005); Smith v.

Digmon, 434 U.S. 332 (1978).

With regards to Claim 1, Petitioner’s instant Memorandum mirrors his state court

pleadings. Petitioner relies exclusively on Louisiana law. Petitioner cites two federal cases only in

the context that the Louisiana courts have adopted the tests for harmless error enunciated therein.

Petitioner argues that the state court’s application of state law was not harmless error. As such,

Petitioner did not fairly present a federal claim to the state court that would satisfy the requirement

to exhaust state court remedies.

Turning to Claim 2, when a petitioner has raised a claim in a procedural context “in which

its merits will not be considered,” he has not “fairly presented” the claim to the state courts and,

accordingly, has not satisfied the exhaustion doctrine. Castille v. Peoples, 489 U.S. 346 (1989);

Satterwhite v. Lynaugh, 886 F.2d 90, 92–93 (5th Cir.1989). Moreover, each claim must be

presented to the state's highest court, even when review by that court is discretionary. O'Sullivan

v. Boerckel, 526 U.S. 838 (1999); Magouirk v. Phillips, 144 F.3d 348, 360 (5th Cir. 1998), citing

Richardson v. Procunier, 762 F.2d 429, 431–32 (5th Cir. 1985). Such presentment can be

accomplished on direct appeal or state collateral or habeas proceedings. Morris v. Dretke, 413

F.3d 484, 491 (5th Cir. 2005) citing Orman v. Cain, 228 F.3d 616, 620 (5th Cir. 2000). In

Louisiana, the highest court is the Louisiana Supreme Court. Thus, to properly exhaust a claim, a

federal habeas corpus petitioner must have fairly presented the substance of the claim in a

procedurally correct manner to the Louisiana Supreme Court in either direct appeal or in post-

conviction proceedings.

Claim 2 was presented to the state appellate court on direct appeal; however, this claim

was denied on procedural grounds because it was not properly preserved at the trial court level.

Petitioner again presented this claim in his Application for Post Conviction Relief but did not seek

further review of the denial of this claim in the state court of appeal or the Louisiana Supreme

Court. As such, this claim has never been presented to state’s highest court.

If Petitioner were to return to state court and attempt to properly exhaust this claim, his

PCR application would not be considered pursuant to Louisiana Code of Criminal Procedure

article 930.4(D), which provides: “A successive application shall be dismissed if fails to raise a

new or different claim.” As such, the claim is procedurally defaulted.

In such cases, the federal court is to treat the issue as technically exhausted but subject to

a procedural bar that cannot be overcome absent the showing of cause for the default and prejudice,

or a fundamental miscarriage of justice. Young v. Davis, 835 F.3d 520, 525 (5th Cir. 2016); Jones

v. Jones, 163 F.3d 285, 296 (5th Cir. 1998). “To establish cause for a procedural default, there

must be something external to the petitioner, something that cannot fairly be attributed to him.”

Johnson v. Puckett, 176 F.3d 809, 816 (5th Cir. 1999). There are no such apparent causes for

Petitioner's election to not pursue his claim in the Louisiana Supreme Court.

To satisfy the fundamental miscarriage of justice exception, a petitioner must 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). Petitioner is not asserting a claim of actual innocence herein. As

such, Claim 2 is procedurally barred from review due to Petitioner's failure to exhaust state court

remedies with respect to a federal claim and the lack of a showing adequate to overcome the

resulting procedural bar. Accordingly, the Court will only consider Claims 3 and 4 on the merits.

Standard of Review

The standard of review in this Court is that set forth in 28 U.S.C. § 2254(d). Pursuant to

that statute, an application for a writ of habeas corpus shall not be granted with respect to any claim

that a state court has adjudicated on the merits unless the adjudication has “(1) resulted in a

decision that was contrary to, or involved an unreasonable application of, clearly established

Federal law, as determined by the Supreme Court of the United States; or (2) 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.” Relief is authorized if a state court has arrived at a conclusion contrary

to that reached by the Supreme Court on a question of law or if the state court has decided a case

differently than the Supreme Court on a set of materially indistinguishable facts. Williams v.

Taylor, 529 U.S. 362, 413 (2000).

Relief is also available if the state court has identified the correct legal principle but has

unreasonably applied that principle to the facts of the petitioner’s case or has reached a decision

based on an unreasonable factual determination. See Montoya v. Johnson, 226 F.3d 399, 404 (5th

Cir. 2000). Mere error by the state court or mere disagreement on the part of this Court with the

state court determination is not enough; the standard is one of objective reasonableness. Id. See

also Williams v. Taylor, supra, 529 U.S. at 409 (“[A] federal habeas court making the

‘unreasonable application’ inquiry should ask whether the state court’s application of clearly

established federal law was objectively unreasonable”). State court determinations of underlying

factual issues are presumed to be correct, and the petitioner has the burden to rebut that

presumption with clear and convincing evidence. 28 U.S.C. § 2254(e)(1).

Factual Background

The facts, as accurately summarized in the decision of the Louisiana First Circuit Court of

Appeal are as follows: In October of 2010, the mother of thirteen-year-old R.B. learned that R.B.

had been texting and talking on Facebook to the defendant, who was forty-four years old. R.B.'s

mother read a text on R.B.'s cell phone from the defendant instructing R.B. to delete the texts

between them. R.B.'s mother called the police, who went to her home in Livingston, Louisiana.

One police officer read a text from the defendant on R.B.'s cell phone asking if she was a virgin.

The police monitored R.B.'s Facebook account and observed that the defendant was writing to

R.B. asking to meet her and asking if she could walk outside of her house so that he could see her.

The defendant also wrote to R.B. that he would get her cigarettes in exchange for inappropriate

sexual activity.

Posing as R.B., the police responded on Facebook that R.B. would meet him at the ballpark

near her home. Chief Randy Dufrene and Officer Wade Stanberry, both with the Livingston Police

Department, and Corporal Calvin Bowen, with the Livingston Parish Sheriff's Office, drove to the

ballpark at the designated meeting time and found the defendant parked at the ballpark in his work

truck, facing R.B.'s house. The defendant had an opened laptop computer in his lap. When he saw

the police, the defendant closed his laptop computer and tossed it on the passenger seat. He

attempted to back up, but his truck was hemmed in. When he exited his truck, the defendant refused

to be placed in handcuffs and resisted arrest until he was finally pepper sprayed, taken to the

ground, and subdued; his laptop computer was seized. In the defendant's truck, the police found

handcuffs, a condom wrapper, and a brand new pack of Marlboro smooth menthol cigarettes. The

defendant was not known to smoke. The defendant was arrested, subsequently bonded out of jail,

and was ordered to stay away from R.B.

In early 2012, the defendant and R.B. began texting and communicating again on

Facebook, both using bogus account names. R.B. began sneaking out of her house to have sex

(vaginal, oral, and attempted anal) with the defendant in a truck. Soon, R.B. was meeting the

defendant at his house in Holden, Louisiana, where he continued to have sex with her. R.B.'s

mother learned what R.B. was doing, this time through Kindle texting, and called the police. R.B.

was interviewed at the Children's Advocacy Center in Denham Springs, Louisiana, where she

described the various sexual acts in which she had engaged with the defendant. R.B. also testified

at trial about the sexual acts between her and the defendant over a period of several months in

2012.

The defendant's sister and three of his female cousins testified at trial. All four witnesses,

now adults, testified that, when they were children, the defendant sexually abused them, and the

abuse lasted for years. V.O., a friend of the defendant's son also testified at trial. According to her

testimony, when she was thirteen years old, she was inside the defendant's residence when the

defendant approached her and began fondling her. He pulled off her shorts and underwear and

inserted a sexual device in her vagina. The defendant did not testify at trial. State v. Church, 2014

WL 4742220, 2013-2096 (La. App. 1 Cir. 9/24/14).

Substantive Review

Claim 3 – Illegal Search

In Claim 3 Petitioner asserts that his truck was illegally searched, and the evidence seized

should not have been admitted at trial. He further asserts that his counsel was ineffective for failing

to move to suppress this evidence. As to the suppression component of his claim, Petitioner is

clearly precluded from litigating his underlying Fourth Amendment claims in this federal court.

See Stone v. Powell, 428 U.S. 465, 494 (1976) (“[W]here the State has provided an opportunity

for full and fair litigation of a Fourth Amendment claim, a state prisoner may not be granted federal

habeas corpus relief on the ground that evidence obtained in an unconstitutional search or seizure

was introduced at his trial.” (footnote omitted)); Caver v. Alabama, 577 F.2d 1188, 1192 (5th Cir.

1978) (“An ‘opportunity for full and fair litigation’ means just that: an opportunity. If a state

provides the processes whereby a defendant can obtain full and fair litigation of a fourth

amendment claim, Stone v. Powell bars federal habeas corpus consideration of that claim whether

or not the defendant employs those processes.”); Bailey v. Cain, Civil Action No. 06-839, 2007

WL 1198911, at *13 (E.D. La. Apr. 20, 2007) (“It is beyond cavil that Louisiana courts provide

criminal defendants the opportunity to raise Fourth Amendment claims.”). However, it is equally

clear that “Stone v. Powell does not bar an ineffective assistance of counsel claim on habeas review

based on an attorney's failure to adequately litigate a Fourth Amendment claim.” Moreno v. Dretke,

450 F.3d 158, 168 n.6 (5th Cir. 2006) (citing Kimmelman v. Morrison, 477 U.S. 365 (1986)).

Because review of the Fourth Amendment claim is barred by the Stone doctrine, this aspect of

Petitioner’s claim must be dismissed.

Turning to Petitioner’s claim that his counsel was ineffective for failing to file a motion to

suppress, a habeas petitioner who asserts that he was provided with ineffective assistance of

counsel must affirmatively demonstrate (1) that his counsel’s performance was “deficient”, i.e.,

that counsel made errors so serious that counsel was not functioning as the “counsel” guaranteed

the defendant by the Sixth Amendment; and (2) that the deficient performance prejudiced his

defense, i.e., that counsel’s errors were so serious as to deprive the defendant of a fair trial, a trial

in which the result is reliable. Strickland v. Washington, 466 U.S. 668, 687 (1984). The petitioner

must make both showings in order to obtain habeas relief based upon the alleged ineffective

assistance of counsel. Id.

To satisfy the deficiency prong of the Strickland standard, the petitioner must demonstrate

that his counsel’s representation fell below an objective standard of reasonableness as measured

by prevailing professional standards. See, e.g., Martin v. McCotter, 796 F.2d 813, 816 (5th Cir.

1986). The reviewing court must indulge a strong presumption that counsel’s conduct fell within

the wide range of reasonable professional competence and that, under the circumstances, the

challenged action might be considered sound trial strategy. See, e.g., Bridge v. Lynaugh, 838 F.2d

770, 773 (5th Cir. 1988). This Court, therefore, must make every effort to eliminate the distorting

effects of hindsight and to evaluate the conduct from counsel’s perspective at the time of trial.

Martin v. McCotter, supra, 796 F.2d at 817. Great deference is given to counsel’s exercise of

professional judgment. Bridge v. Lynaugh, supra, 838 F.2d at 773; Martin v. McCotter, supra, 796

F.2d at 816.

If the petitioner satisfies the first prong of the Strickland test, his petition nonetheless must

affirmatively demonstrate prejudice resulting from the alleged errors. Earvin v. Lynaugh, 860 F.2d

623, 627 (5th Cir. 1988). To satisfy the prejudice prong of the Strickland test, it is not sufficient

for the petitioner to show that the alleged errors had some conceivable effect on the outcome of

the proceeding. Strickland v. Washington, supra, 466 U.S. at 693. Rather, the petitioner must show

a reasonable probability that, but for counsel’s alleged errors, the result of the proceeding would

have been different. Martin v. McCotter, supra, 796 F.2d at 816. The habeas petitioner need not

show that his counsel’s alleged errors “more likely than not” altered the outcome of the case; he

must instead show a probability that the errors are “sufficient to undermine confidence in the

outcome.” Id. at 816-17. Both the Strickland standard for ineffective assistance of counsel and the

standard for federal habeas review of state court decisions under 28 U.S.C. § 2254(d)(1) are highly

deferential, and when the two apply in tandem, the review by federal courts is “doubly deferential.”

Knowles v. Mirzayance, 556 U.S. 111, 123 (2009).

Police may search a vehicle incident to a recent occupant's arrest only if it is reasonable to

believe the vehicle contains evidence of the offense of arrest. As stated by the Court in Arizona v.

Gant, 556 U.S. 332, 343-344 (2009):

“…circumstances unique to the vehicle context justify a search incident to

a lawful arrest when it is “reasonable to believe evidence relevant to the crime of

arrest might be found in the vehicle.” Thornton, 541 U.S., at 632, 124 S.Ct. 2127

(SCALIA, J., concurring in judgment). In many cases, as when a recent occupant

is arrested for a traffic violation, there will be no reasonable basis to believe the

vehicle contains relevant evidence. See, e.g., *344 Atwater v. Lago Vista, 532 U.S.

318, 324, 121 S.Ct. 1536, 149 L.Ed.2d 549 (2001); Knowles v. Iowa, 525 U.S. 113,

118, 119 S.Ct. 484, 142 L.Ed.2d 492 (1998). But in others, including Belton and

Thornton, the offense of arrest will supply a basis for searching the passenger

compartment of an arrestee's vehicle and any containers therein.

In the instant matter, the likelihood of discovering offense-related evidence authorized the

search in this case. The police were monitoring R.B.'s Facebook account and observed that

Petitioner was writing to R.B. asking to meet her, and also wrote to R.B. that he would get her

cigarettes in exchange for inappropriate sexual activity.

Posing as R.B., the police responded on Facebook that R.B. would meet him at the ballpark

near her home. Chief Randy Dufrene and Officer Wade Stanberry, both with the Livingston Police

Department, and Corporal Calvin Bowen, with the Livingston Parish Sheriff's Office, drove to the

ballpark at the designated meeting time and found Petitioner parked at the ballpark in his work

truck, facing R.B.'s house. Petitioner had an opened laptop computer in his lap. When he saw the

police, Petitioner closed his laptop computer and tossed it on the passenger seat. He attempted to

back up, but his truck was hemmed in. When he exited his truck, Petitioner refused to be placed in

handcuffs and resisted arrest until he was finally pepper sprayed, taken to the ground, and subdued;

his laptop computer was seized. In Petitioner’s truck, the police found handcuffs, a condom

wrapper, and a brand-new pack of Marlboro smooth menthol cigarettes. Pefendant was not known

to smoke.

As such, the likelihood of discovering offense related (computer aided solicitation and

indecent behavior with a juvenile) evidence authorized the search of Petitioner’s vehicle. As such,

there was no basis for a motion to suppress, and the failure to raise meritless motions or to make

meritless objections does not result in the ineffective assistance of counsel. Koch v. Puckett, 907

F.2d 524, 527 (5th Cir. 1990). Accordingly, this claim is without merit.

Claim 4 – Double Jeopardy

In Claim 4, Petitioner alleges it was a violation of the Double Jeopardy Clause to convict

him on all counts because the evidence for any one count would be sufficient to sustain a

conviction on any other count resulting in a multiplicitous prosecution. He argues that under

Blockburger v. United States, 284 U.S. 299 (1932) and Louisiana's same evidence test, he has

received multiple punishments for the same conduct.

Petitioner was charged by bill of information with nine counts of indecent behavior with

juveniles, violations of Louisiana Revised Statute 14:81. Louisiana Revised Statute 14:81

provides, in pertinent part:

A. Indecent behavior with juveniles is the commission of any of the following acts

with the intention of arousing or gratifying the sexual desires of either person:

(1) Any lewd or lascivious act upon the person or in the presence of any

child under the age of seventeen, where there is an age difference of greater than

two years between the two persons. Lack of knowledge of the child's age shall not

be a defense; or

(2) The transmission, delivery or utterance of any textual, visual, written, or

oral communication depicting lewd or lascivious conduct, text, words, or images to

any person reasonably believed to be under the age of seventeen and reasonably

believed to be at least two years younger than the offender. It shall not be a defense

that the person who actually receives the transmission is not under the age of

seventeen.

In counts 1 and 4 through 9, Petitioner was charged under La. R.S. 14:81(A)(1). In counts

2 and 3, Petitioner was charged under La. R.S. 14:81(A)(2). The victim in count 1 is V.O. The

victim in all other counts is R.B. Petitioner was found guilty as charged on all counts. For each

conviction, he was sentenced to seven years imprisonment at hard labor. All nine sentences were

ordered to run consecutively to each other.

The Double Jeopardy Clause of the Fifth Amendment protects against: (1) a second

prosecution for the same offense after acquittal; (2) a second prosecution for the same offense after

conviction; and (3) multiple punishments for the same offense. Brown v. Ohio, 432 U.S. 161, 165

(1977). A challenge to multiplicity raises double jeopardy concerns, which would protect a

defendant against multiple punishments for the same offense where the legislature did not

authorize cumulative punishment for one offense. United States v. Ogba, 526 F.3d 214, 232–33

(5th Cir. 2008). “ ‘An indictment is multiplicitous if it charges a single offense in multiple counts,

thus raising the potential for multiple punishment for the same offense, implicating the [F]ifth

[A]mendment double jeopardy clause.’ “ United States v. Reagan, 596 F.3d 251, 253 (5th Cir.

2010) (quoting United States v. Brechtel, 997 F.2d 1108, 1112 (5th Cir. 1993)); United States v.

Soape, 169 F.3d 257, 266 (5th Cir. 1999) (citing United States v. Nguyen, 28 F.3d 477, 482 (5th

Cir. 1994)). “The chief danger raised by a multiplicitous indictment is the possibility that the

defendant will receive more than one sentence for a single offense.” United States v. Cluck, 143

F.3d 174, 179 (5th Cir. 1998) (quoting United States v. Swaim, 757 F.2d 1530, 1537 (5th Cir.

1985)).

Where the question of multiplicity arises, as here, because of multiple transactions, the

question becomes “‘whether separate and distinct prohibited acts, made punishable by law, have

been committed.’” United States v. Lee, No. 08–0148, 2009 WL 481264, at *1 (E.D. La. Feb. 20,

2009) (citing United States v. Cluck, 143 F.2d at 179). Separate and distinct acts that occurred at

different times–even if committed against the same person–may constitute offenses independently

punishable under a single statute. Blockburger v. United States, 284 U.S. 299, 301-302 (1999).

An overall scheme does not preclude multiple convictions based on each instance of misconduct

under that scheme. United States v. Johnson, 1 F.3d 1237 (5th Cir. 1993).

In the instant matter, the state appellate court detailed the various acts and communications

that occurred on multiple different occasions over a period of months and discussed in detail the

evidence supporting each count. These separate and distinct acts committed against R.B. are

offenses that are independently punishable under a single statute. Likewise, the separate act

committed against the second victim, V.O., is also independently punishable under the same

statute. As such, Petitioner has not established that the separate counts charged by the State for

separate acts occurring on different days were multiplicitous or violative of the double jeopardy

clause. The state courts' denial of relief on this claim was not contrary to, or an unreasonable

application of, Supreme Court law, and Petitioner is not entitled to relief on this claim.

Certificate of Appealability

Should Petitioner pursue an appeal, a certificate of appealability should also 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.” 28 U.S.C. § 2253(c)(1)(A).

Although Petitioner has not yet filed a Notice of Appeal herein, the Court may address whether he

would be entitled to a certificate of appealability. See Alexander v. Johnson, 211 F.3d 895, 898

(5th Cir. 2000). A certificate of appealability may issue only if a habeas petitioner has made a

substantial showing of the denial of a constitutional right. 28 U.S.C. § 2253(c)(2).

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 encouragement to proceed further.” Pippin v. Dretke, 434 F.3d 782, 787

(5th Cir. 2005), quoting Miller-El v. Cockrell, 537 U.S. 322, 327 (2003). In the instant case, the

Court finds that reasonable jurists would not debate the denial of Petitioner’s application or the

correctness of the substantive ruling. Accordingly, it is appropriate that, in the event that Petitioner

seeks to pursue an appeal in this case, a certificate of appealability should be denied.

RECOMMENDATION

It is recommended that Petitioner’s application for habeas corpus relief be denied, and that

this proceeding be dismissed. It is further recommended that, in the event Petitioner pursues an

appeal in this case, a certificate of appealability be denied.

Signed in Baton Rouge, Louisiana, on July 31, 2025.

S

SCOTT D. JOHNSON

UNITED STATES MAGISTRATE JUDGE