Petition for Writ of Certiorari — Edmundo Cerda-Anima, Petitioner v. Darrel Vannoy, Warden

No.

IN THE

SUPREME COURT OF THE UNITED SlATES

OCTOBER TERM, 2018

EDMUNDO CERDA-ANIMA PETITiONER, PRO SE

VS.

BURL CAIN, WARDEN

STATE OF LOUISIANA, R I SPONl)lN I

--

ON PETITION FOR WRIT OF CERTIORARI TO:

U.S. FIFTH: C RCUIT COURT OF APPEA L

PETITION FOR WRIT OF CERTIORARI

Respectfully submil.ted,

4~v ow

t- ,

Edniundo Certia-Aiirna

DOCW 594.309.. Walnut 3

Louisiana State Penitentiary

Angola, La. 707.12

QUESTIONS PRESEN 'FED

QUESTION NO. 1: Did The Lower Court Err Denying Coa On The Question

Of Was The Evidence Insufficient Where There Was No Evidence To

Prove The Element Of Specific intent To Kill or Cause Great Bodily

Harm To The Victim? Or Rather, The Evidence Estaiilished 1'hat The

Victim Was Killed By An Accident Caused By An intoxicated And

Inattentive Driver, In Violation Of the Fifth, Sixth, And Fourteenth

Amendment?

QUESTION NO. 2: Did The Lower Court Err Denying Coa On The Question

Of Was Petitioner Denied Effective Assistance Of Counsel, In Violation

Of The Fifth, Sixth, And Fourteenth Amendment, Where:

Trial Counsel Failed To Object To The Disqualification of

The District Attorney;

Trial Counsel Denied Petitioner The Right To

Confrontation and Cross-Examination of Witnesses;

Trial Counsel Failed To Move For A Motion To Quash The

Indictment. For Aggravated Rape, Knowing That The State

Did Not Have The Required Element To Support An

Aggravated Rape Conviction?

LIST OF PARTIES

[1

All parties appear in the caption of the case on the cover page.

[x]

All parties do not appear in the caption of the case on the cover page. A list of all

parties to the proceeding in the court whose judgment is the subject of this petition is as

follows:

Hon. Paul Connick, Jr., District Attorney

5th Floor Courthouse Annex

200 Derbigny Street

Gretna, LA. 70053

There are no other parties to this action within the scope of Supreme Court, Rule 29.1.

Edmundo Cerda-Anima.

111

TABLE OF CONTENTS

QUESTIONS PRESENTED

.

LESTOF PARTIES ........................ ..................... ............................. .. ___ ...... ......... .. ........... .. ..... ii

TABLE OF CONTENTS ......................................................... . ............ ... .......... . ......................... ii.

INDEXTO APPENDICES ................ ..... ......................... .............. ............................................ iii

TABLE OF AUTHORITIES ................................. ............................ .................................. ....... iv

OPINIONS BELOW ... ........ ___ ........ ...... .............................. ..................................................I

JURISDICTION...........................................................................................................................2

CONSTITUTIONAL AND SThTU'E'ORY PROVISIONS INVOLVED .. .... ... ...... .............3

STATEMENTOF THE CASE ............. ............ ................ ................ ...........................................3

STATEMENT OF FACTS.............................................................................................................

STANDARDOF REVIEW .........................................................................................................5

QUESTION NO. 1: Did The Lower Court En Denying Coa On The Queshon Of Was

The Evidence insufficient Where There Was No Evidence

Prove The Element

Of Specific Intent To Kill or Cause Great Bodily Harm To Tue Victim? Or Rather,

The Evidence Established That The Victim Was Killed By An Accident. Caused By

An Intoxicated And Inattentive Driver, in Violation Of the Fiflh, Sixth, And

FourteenthAmendment? .................... ... ... .................. .......... .....................................................7

QUESTION NO. 2: Did The Lower Court Err Denying Coa On The Question Of

Was Petitioner Denied Effective Assistance Of Counsel, In Violation Of The

Fifth, Sixth, And Fourteenth Amendment..... .................. ................... .... .......... ................ 13

CONCLUSION....................... ............. ......... ......... .......... ........ ..... .. ... ......... .... ....... ............. .... 20

PROOF OF SERVICE ................... .................. ........... ............................................................22

APPENDICES ............... .......... ..... ........ ....... ......... .......................................................23

INDEX TO APPENDICES

Appendix A: 1-11-18

Appendix B:

411911.7

U.S. Fifth Circuit Court of Appeal denied COA, Edniundo

Cerda-Anima, 5th Cir. No: 17-3035.

iT. S. District Court, Eastern District of Louisiana, Judgment

and order adopting the N1a.ist rate's recommendation arid

denying lderal habeas relief. LFSI)C No. 2: 1 6-CV-5759.

Appendix C: 1124117

Magistrate Report and reconimeiidal ion.

RELEVANT STATE COURT DECISIONS

Appendix D: 10/23/15

State ex rd. Cerda-Anirna v. State, 177 So.3d 1056,201-1-

Appendix F: 1110114

2 6 15

2 La.20l5).

State v. Cerda-Anima, 130 So.3d 32 I, 2013-148/ (La. 2014).

State v. ('erda-Anima, 119 So.3d 7S1 12-682 (La.App. 5 cir.

Appendix F: 5/30/13

5/30/13).

111

14 BLE OF AUTHORITIES

Page Number

CASES CITED

Campbell v. Louisiana, 523 U.S. 392, 399 (1998)..........................................................17

Crane v. Kentucky, 476 U.S. 683, 690-9] .................. ... ..................................................... 16

Catalan v. Cockrell, 315 F.3d 491,493 (.5th Cir, 2002)... ........

....... ...... ..... ....... ........... _.6

Cerda-Anima v. Burl Cain, Warden, 5th Cir, No: 17-30355............................................... 5

Cerda-Anima v. Cain, U .8 D.C. 2:16-CV-5759 .......... .................. ....................................... ...5

Clemons v. State, 470 So.2d 653 Mis. 1985)........................................................................7

Chambers v. Mississippi, 410 U.S. 284,93 8.0. 1038., 35 L. fd.2d 297(197_1).. 16,

20

Crawford v.Washington, 541 U.S. 36, 124 S.Ct. 1354, 1.58 L. Ed.2d 177 (2004)16

Done v. State, 32 So.2d 206, 208 (Miss. 1.947)....................................................................8

Dowthitt v. Johnson, 230 F.3d 733., 741 (5th Cir. 2000) .......................................................6

Edwards v. State, 469 So.2d 69,71 (Miss. 1985)...................................................................7

Forman v. Cain, No. 07-4200, 2008 WL 1746710 J.D. La. Apr. 14, 2008)_18, 19

Hill v. Johnson, 210 F.3d 481,485 (5th Cir. 2000), coil, denied, 532 iTS. 1039, 121 5.0.

2001, 149 L.Ed.2d 1004 (2001)..................................................................................................5

Hogan v. State, 127 Miss. 407, 90 So. 99, 100-01 (1921).........................................................8

Jackson v. Virginia, 443 U.S. 307,99 S. Ct. 2781,61 L. Ed. 2[) 560 (1979) ..................7.9

Johnson v. State, 198 So. 554, 555 (Miss. 1940)..................................................

.8

Koon v.United States, 518 U.S. 81, 100,116310. 2035, 1.3 1.,.[d.2d 392 (1996)............6

Koch v. Puckett, 907 F.2d 524, 527 (51.11 (.'ir. 1990)

15

Liner v. Phelps, 731 F.2d 1201 (5th Cir. 1984).........

18

McKay v, Collins, 1.21 F.3d 66, 68 i 5th (7iu. I 994

18

Moore v. Johnson, 18

-5 F.3d 244, .61 ('5th (.'ir. I )99).............

13

Moore V. Parke, 846 F.2d 375, 377 (6th Cir. 198$)....................................................7

......

...................

.

Morris v. Thaler, No. 09-1.0529, 1011 Wt, 1886096 (51b ('tI' May 1 8, 201.1)........15

Nealy v. Cabana, 764 .F.2d 1.173, 1177(5th Cii'. I 985)

....................15

Rawls v. State, 513 So.2d 942 (Mi

1987)............................................................7

Richards v. Quarterman, 566 F.3d 553, 561. (5111 Cr. 2009).........................................3

Slack v. McDaniel, 529 U.S. 473. 481, 120 3.0. I 59S, 146 L..i'4.2d 5.12 (2}00)............5

State 'v. Bourque, 622 So.2d 198.........................................................................17

State v. Cerda-Anima, 119 So.3d 751 12-682 (La.App

Cir. "3u'13)................. iii. 4. 5

Stale v. Cerda-Aniina, '130 So.3d 321 2013-.1487 ('La 2U1.1.....

iii, 4., 5

State v. Chisrn, 436 So. 2d 4.64, 4(11 (La.] 983).............................................................10

State ex rel. Cerda-Anima. v. Stats, 177 So.3d 1056, 201 .1-'2(2. (La.201 ..............iii. .4. 5

State v. Gary M. Hall, No. 01

1-KA-906, 5/26./04 (La. App. S ir. 20o.l

- 10

:

.

........

"

States

Statesv. Griffin, 324 F.3d 330, 347 (th Or. 2003) ...........................................6

State v. Honore, 09-3 13(La. App S (-'it,. 1.1111 2!] 0. 31 So Ad .1 8 ......................8

iv

.9

State v. Matthews, 375 So.2d 1165 (La. 1979)

.18

State v. Payne, 586 So.2d 652, 612 So.2d 153

. 10

State v. Perow, 616 So.2d 1336 (La. App. 3 Cir. )93)

State V. Pickett, 878 So. 2d 722 (La. App. 3 Cir. 5/26/04).....................................................S

State v. Washington, 2005-0035 (La. App. 4 Cir. 4/6/03)., 9(}0 So.2d 1072.................19

State v. Wiley, 880 So. 2d 854, 03-884 La.. App. 5 Cir. 4/27./04.................................12

Strickland v. Washington, 466 U.S. 668 (1984.)...............................................................13

Thompson v. Cain, No, 08-0252, 2009 WL 775043 (WD. La. Mar. 24, 2009)......18

United States v. Delgado-Nunez, 295 F.3d 494, 496 (5th Cir.2002) ................. ......................6

8

United States v, Barnett. 197 F.3d 138 (5th Cir. 1999)......................................

United States v. Colon-Munoz, 192 F.3d 21.0 (1st Cir. 1999)..................................................8

United States v. Debrow, 346 U.S. 374 (1953)................................................................18

United States v. Ramos, 537 F.3d 439. 459 (5th Or-. 2008)........................................1%

United States v. Kimler, 167 F.3d 889, 893 (:5th Cir. 1999)......................................14

United States v. Miranda,, 248 F.3d 434,440 (5th Cir. 2001).................................................6

Williams v. Taylor, 529 U.S. 362,405-06,120 S.ct. 1495, 146 L.Ed.2d 389 (2.000)..........6

Wood v. Georgia, 370 U.S. 375, 390 (1962).................................................................17

13

Wbodfox v. Cain, 609 F.3d 774, 79 (5th Cir. 2010)..............

Young v. Guste, 849 F.2d 970, 97273 (5th Cir. 1988)..............................................................7

CONSTITUTION CITED

U.S.C. Fifth, Sixth &Fouii.eenth Aniendmenl....... ..... .. ..... ............ ......... .... ....... . .......... .....7, 13

. 1.S.C.A. Con-Al. Art. 3 §, 2, ci. 2............................................................................2

1

Codes & Statutes

28 U.S.C.

§ 1254(1) ...............................................................................................................2

28 U.S.C. § 1254(1) & 1257(i)........................................................................2

2.8 U.S.C. § 2253 (c)(2.)...............................................................................................5

28 U.S.C.A.2253(c)(2) ....................................................................................20

28 U.S.C.A.2254(d)(2) .................................................................. ............ ...... ...... ............6

Supreme Court Rule 9, 17.1(b), and 22.....................................................................................2

La. C.Cr,P. Art. 384 .......................... ... ............ ............... ..... ... .......... ... ........... .....1$

18

La. C.Cr.P. arts. 462 and 465...................................

(A)(32)......................................................................................18

La. C.Cr.P. art. 465

La. C.Cr. P. art. 464...............................................................................................18

LSAR.S. 14:30.1 .... ........... ............... ........ ... .................. ............. . ................... ..............3

LSAR.S. 14:42 ....... ..................................................................................2, 17

9

LSAR

.S,15:4 38 ...................................................

........... .

...

.

,

............................

IN THE

SUPREME COURT OF THE UNITED SlATES

PETITION FOR A WRIT OF CERTIORARI

Petitioner respectfully prays that a writ of certiorari issue to review the judgment below.

OPINIONS BELOW

For cases from federal courts:

The opinion(s) of the United States Fifth Circuit Court of Appeal appear at Appendix A

to the petition and is unpublished.

The opinion(s) of the United States District Court, Eastern District of Louisiana, appear

at Appendix B and is unpublished.

The Magistrates Report and recommendation in the U.S. Eastern District Court, appear

at Appendix C of the petition and is unpublished.

For cases from state courts:

The opinion of the highest state court to review tlie merits of the Post Conviction

Application appears at Appendix D to the petition and is published at State ex rel.

Cerda-Anima v. State, 177 So.3d 1056, 2014-2625 La.2015).

The opinion of the highest state court to review the merits on Appeal appears at

Appendix E to the petition and is published at State v. Cerda-Anirna, 1 30 So.3d 321,

2013-1487 (La. 2014).

The opinion of the Louisiana. Court of Appeal, who issue a reasoned opinion on Appeal

appears at Appendix F to the petition arid is published it State v.. Cerda-Anima, 11.9

So 3d 751,12-682(La-App. 5 0T. 5/30/13).

JURISDICTION

[X] For cases from federal courts:

The date on which the United States Court of Appeal decided my case was January 11,

2018, a copy of that decision appears at Appendix A.

17(1 No petition for rehearing was timely filed in my case.

The jurisdiction of this Court is invoked under U.S.CA. Const.. Art. 3 § 2, ci. 2; 28

U.& C. § 1254(1); Supreme Court Rule 9 17.1.Q and 22.

[X]

For cases from state courts:

The date on which the highest state court decided my case was November 23, 2015,

State ex rd. Cerda-Anima v. State, 177 So.3d 1056, 2014- 2625 (La.2015); A copy of that

decision appears at Appendix D.

The jurisdiction of this Court is invoked under U.S.C.A. Conat. Art. 3 § 2, el. 2. 28

U.S.0 § 1254(1) & 1257(a); Supreme Court Rule 9, 17.1 (b), and 22.

C-

CONSTITUTIONAL AND STkTL..JTORY PROVISIONS INVOLVED

The United States Constitution, AMENDMENT V provides in pertinent part:

No person shall be held to answer for a capital, or otherwisc infamous crime, unless on a

presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces,

or in the Militia., when in actual service in time of War or public danger; nor shall any person be

subject for the same offense to be twice put in jeopardy of life or liinb nor shall he compelled

in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property,

without due process of law; nor shall private property be take for public use, without just

compensation.

The United States Constitution, Amendment VI provides in pertinent part:

In all criminal prosecutions, the accused shall enjoy the right to a speedy and public

trial, by an impartial jury of the State and district wherein the crime shall have been committed,

which district shall have been previously ascertained by the accusation; to be confronted with

the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and

to hare the Assistance of Counsel for his defense.

The United States Constitution, Amendment X1'V § I provides in pertinent pail:

No state shall make or enforce any law which shall abridge the privileges or immunities

of citizens of the United States; nor shall any State deprive any person of life, liberty, or

property, without due process of law; nor deny to any person within its jurisdiction the, equal

protection of the laws.

(I). STATEMENT OF THE CASE

May 10, 2007, a Jefferson Parish Grand Jury indicted the defendant Edniundo

Cerda-Anima, on one count of second murder in violation ol LSA- R.S. 14:30.1 and

one count of aggravated rape in violation of LSA R.S. 14:42. The indictment was

sealed until the defendant was arrested in Mexico and extradition proceedings

commenced. Defendant plead not guilty to both counts October 4, 2010. Various

defense motions to suppress evidence, statements, and identification were denied on

January 26, 2012. On January 26, 2012, and just before trial, the State severed the

,1

counts on aggravated rape and kidnapping. Trial as to count one commenced on

January 30, 2012,and February 3. 2012 the jury returned a verdict of guilty The court

sentenced the defendant to serve life without benefit of parole, probation, or

suspension of sentence. On that same date, the State entered a nolle pmsequi as to the

second count in the indictment. [See State Record of True Bill Amendment.]

On Direct Appeal the Louisiana Fifth Circuit Court of Appeal affirmed the

conviction and sentence on May 30, 2013, No.:12-KA-682. (App. F) Thereafter, the

Louisiana Supreme Court denied Writ's, State __Edniundo_CerdaAiiirna, 130 So.3d

321 (La. 1/10/14). (App. E). On April 21, 2014, Mr. Ediriundo Cerda-Anirna filed an

Application for Post Conviction Relief. On September 9. 2014. the State District Court

denied relief. Cerda-Anima received the Court's order on September 16, 2014, and on

September 23, 2014, he filed his Notice of intent to Seek Writs A Return Date was set

for October 30, 2014. and on October 27, 2014, (17erda-Anima tiled his request for

Supervisory Writs with the Louisiana Fifth Circuit Court ol Appeal. On November 11,

2014, the Court of Appeal denied relief. On December 10, 2014, Cerda-Anima filed for

a Writ of Certiorari with the Louisiana Supreme Court. On October 23, 2015. the

Louisiana Supreme Court denied Relief. (App. D). Mr. Cerda-Ariiina is timely before

this Honorable Court seek. Federal Habeas Corpus Relief.

Timely Petition for Habeas Copt.is relief was: filed in the LI 5. Easterr District Court.

The United States Magistrate, entered an order recommending Mr. Cerda-Aninia's. federal

habeas corpus application be denied and dismissed with prejudice January 24, 2017. (App. C).

The U. S. District Court, Eastern District of Louisiana, Judgment and Order adopting the

4

Magistrate's recommendation and denyied federal habeas relief. IJSDC No. 2:16-CV5759.

(App. B). On January 11, 2018, The U.S. FifTh Circuit Court of Appeal denied COA, Eth.iuiido

Cci'da-Anima, 5th Cir.No: 17-30355, IJ.S.D.C. 2:16-CV-5759. (App. A).

STATEMENT OF TI-IE FACTS

The statement of facts are found in the Louisiana Fifth Circuit opinion in State v. CerdaAnima, 12-KA-682 (La. App. 5U1Cir. 05/30/13); 119 So.3d751,752-757. (Appendix F)

STANDARD OF REVIEW

Because Mr. Cerda-Anima filed his federal habeas petition after the effective date of the

Antiterrorism and Effective Death Penalty Act of 1996, federal habeas review is governed by

AEDPA. Questions of law and mixed questions of fact are reviewed under §2254(d)(1), and

questions of fact are reviewed under §2254(d'(2). Hill v. John son, 210 F.3 U 481, 485 (5th Cm.

2000, cert. denied, 532 U.S. 1039, 121 S.t. 2001, 149 L.Ed.2d 1004 (2001).

Before an appeal may be considered, petitioner must obtain icertificate of appealability

by making a substantial showing of the denial of a constitutional right. 28 IJ.S.C. 2253 (c)(2).

If the district court denied the claim on the merits, petitioner may make this showing by

demonstrating that "reasonable jurist would find the district court's assessinient of Ehis]

constitutional claims debatable or wrong." Slack v. McDaniel, 529 U.S. 173, 434, 120 SCL

1595, 146 L.Ed.2d 542 (2000).

A state court decision is contrary to federal law within the meaning of2254(d)(i) if the

state court applies a. rule that contradicts the governing law set forth in the Supreme Court's

cases, or the state court "confronts a set of facts that are materially indistinguishable from a

decision of Uhe Supreme] Court and nevertheless arnies at a result different from [Supreme

Couttj precedent." Williams v. iiaylor, 529 U.S. 362, 405-06, 120 S.Ct. 1495. 146 L.Ed.2d 389

(2000). Under §2254(d)(2), a state court's factual findings constitute "an unreasonable

application of clearly established" Supreme Court precedent if the state court "correctly

identifies the governing legal rule but applies it unreasonably to the facts of a particular

prisoner's case." Id. at 407-08. The inquiry into unreasonableness is objective. id. at 410-12.

The state court's factual findings are presumed to be correct. 28 U.S.C. §2254(e)(1). in

order to obtain habeas relief on the §2254(dX2) ground that the slate court's decision was based

on ah "unreasonable determination of the facts in light of the evidence resented in the state

couri proceeding," the petitioner must rebut by clear and convincing evidence the §2254(e)(1)

presumption that the state court's factual findings are correct. Sec Lowthitt_v.Johtis'on 230

F.3d 733, 741 (5th Or. 2000).

"[U]nder the deferential standard of AEDPA., [federal courta] review only the state

court's decision, not its reasoning or written opinion, to determine whether it is contrary to or a

misapplication of clearly established federal law." Catalan v. Cockrell, 315 17 3d 491, 493 (5th

air. 2002). We review the "district court's evidentiary rulings for abuse of discretion." United

States v. Griffin, 324 F.3d 330, 347 (51n Or. 2003) (citing) United Statesv.Miranda, 248 F.3d

434, 440 (5th Cir. 2001). "A district court by definition abuses its discretion when it makes an

error, of law" United States v D

j elgado-Nunez, 295 F.-Id 191 19 (51h Cu 2t)02)(Br iLkets

omitted) (quoting Koon v. United States, 51$ U.S. 81, 100, 116 S.Ct, 2035, 135 L.Ed.2d 392

(1996)).

In response to petitioners objecti on to the magistrate report and reconimeirdatiori, the

district court failed however to identify and apply tire standard for granting relief.

'The Mag. Report does not even mention that I\4r Cerda-Anirna briefed this clear

misapplication of the law in his 2254 application. The habeas cowl. fiuiled to review the claim

6

de ndvo. The AEDPA limitation upon the federal courts jurisdiction does not equate to an

absolute bar to review or to grant relief upon otherwise timely and properly exhausted

constitutional claims.

Question No I

Was The Evidence Insufficient Where There Wa s No Evidence To Prove The

Element Of Specific Intent To Kill or Cause Great Bodily Harm To The

Victim? Or Rather, The Evidence Established That The Victim Was Killed

By An Accident Caused By An Intoxicated And Inattentive Driver, in

Violation Of the Fifth, Sixth. And l'ourteenth Amendment?

This is a matter of federal constitutional law, as well as of stale law, and no conviction

can be upheld where the "theory of murder is entirely speculative, and this record does not

provide a sufficient factual basis for the jury's verdict under the standard of Jackson v. Virginia,

443 U.S. 307, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979)]." Moore v. Parke, 846 F.2d 375, 377

(6th Cir. 1988).

The standard of review is familiar to this Court. In no criiiiiml case is it enough to say,

as the prosecution essentially said in this case:

"We showed that he might have [coinrnilteLi a crime I, now il's up to

him to prove that he didn't." This is tantamount to Roman Law

where the accused must prove his or her innocence]

Edwards v. State, 469 So.2d 69, 71 (Miss. 1985) (emphasis in rigival): accl Jackson V.

Virginia, 443 U.S. 307, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979): Rawls v. State, 513 So.2d 942

(Miss. 1987); Clemons v. State, 470 So.2d 653 (Miss. 1985); Ygv. Guste, 849 R2d 970,

972-73 (5th Cir. 1988).

When there is both direct and cireurnsta.iitial evidence, direct evidence must be viewed.

in the "light most favorable" standard. "But in a circunistantial evidence case the inference to

7

be drawn from the evidence must not only be consistent with guilt but inconsistent with every

reasonable hypothesis of innocence."

Proof in any case requires more than speculation. Evidence cannot be considered

sufficient when, "while it produces a strong suspicion of guilt, it does not establish the

affirmative of the issue beyond every reasonable doubt." Johnson v, State, 198 So. 554, 555

(Miss. 1940); see also Done v. State, 32 So.2d 206, 208 (Miss. 1947);

gan v. State, 127

Miss. 407, 90 So. 99, 100-01 (1921).

Forensic scientist's testimony improperly invaded province of jury as fct-finder in

murder prosecution, where forensic scientist gave a summarizing opinion of the evidence

befoIe the jury and concluded that the State's theory of the case was the only reasonable

explanation. LSA-C]E. Art. 704; State v.Pickett, 878 So. 2d 722 (La. App. 3 Cir. 5126104).

The lower courts decision is "reversible error to refute a charge on a defense theory for

which there is an evidentiary foundation and which, if believed by the jury, would be legally

sufficient to support a verdict of not guilty. U.S. v. Burnett, 197 E.3d 138 (5th Cir. 1999). Where

an equal or nearly equal theory of guilt and a theory of innocence is supported by the evidence,

the court of Appeals must reverse a conviction. U.S. v. Colon-Munoz, 192 F.3d 210 (1st Cir.

1999).

Petitioner submits there was no evidence that he had requisite intent to kill the

51 years old victim. According to law, specific intent is that state of mind that exists

when the circumstances indicate that the offender actively desired the prescribed

criminal consequence to follow his act or failure to act. State v.Iionore., 09-313(La.

App. 5 Cir. 1112/10, 31 So. 3d 485.

Petitioner did not desire any criminal consequence such as murder. in Jackson v.

Virgini 4.4.3 U.S. 307, 99 S. Ct. 2781, 2788 (1979), the court stated:

A reasonable doubt at a minimum is one based upon "reason." Yet a

properly instructed jury may occasionally convict even w,hen it can be said

that no rational trier of fact could find guilt beyond a reasonable doubt,

and the same may be said of a trial judge sitting as a jury. In a federal

trial, such occurrence has traditionally been deemed lo require reversal of

the conviction.

Under Winship, which established proof beyond a

reasonable doubt as an essential of Fourteenth Amendment Due Process, it

follows that when such a conviction occurs in a state trial, it cannot

constitutionally stand.

.

.

In reviewing the sufficiency of evidence to support a criminal conviction, the

Due Process Clause of the Fourteenth Amendment to the U.S Constitution requires the

reviewing Court to determine whether the evidence is mirlinially sufficient- However, a

complete reading of the record and all of the exhibits show that the State failed to meet

the burden of Jackson v Virginia, supra.

In Jackson v. Virginia, supra., this Court set out the standard by which appellate

courts are to review the sufficiency of the evidence in criminal prosecutions. It state

the following:

.[t]he relevant question is whether, after viewing the evidence in a

light most favorable to the prosecution, any rational trier the R'ct could

have found the essential elements of the crime beyond a reasonable

doubt."

This standard was adopted by the Louisiana Supreme Court in Sl ate

._atthews,

375 So.2d 1165 (La. 1979). La. R.S. 15:438, provides the rule as to circumstantial

evidence. It states that assuming every fact to be proved that the evidence tends to

prove, in order to convict, the evidence must exclude every reasonable hypothesis of

9

innocence

.

Ultimately, all evidence in the record, viewed in a light favorable to the State,

must satisfy the reviewing court that a rational trier of fact could have found the

appellant guilty of the crime for which he was convicted, beyond a reasonable doubt.

State v. Perow, 616 So2d 1336 (La. App. 3 Cir. 1993).

The circumstantial evidence rule is a component of this reasonable doubt

standard. On appeal, the issue is whether a rational trier of fact, viewing the evidence in

a light favorable to the State, could find that all reasonable hypotheses of innocence

were excluded. In all the testimonies it was clear that Petitioner did in fact commit a

manslaughter, negligent homicide, or vehicular homicide. Dr. Liuzza, testified that, in

his opinion, the death was an accidental motor vehicle related fatality because he saw no

evidence of homicide. (R.p.1192).

When the preponderance of the evidence shows that Petition er did not commit a

homicide in the second degree, his conviction for second degree nniurder must be vacated

wlieii a rational trier of fact, viewing the evidence in the light most favorable to the

prosecution, could only have found hint guilty of Manslaughter or Vehicle Flonmicide,

State v. Gary M. Hall, No. 03-KA--906, 5/26104 (La. App. 5 Cir. 200/1); State v. Chin,

436 So. 2d 464, 467 (La.1983); Jackson i. Virginia, iima.

B.

ArgumentMr. Cerda-AnlilTia, has been convicted of second degree murder. All evidence

presented by the state supports that Mr. Cerda-Anina accidentally killed the vibtim. In

this Case, the state failed to present adequate evidence to prove Mr. Cerda-Anima is guilty

10

of second degree murder beyond a reasonable doubtThe state presented several eyewitnesses that are actually in favor of Mr CerdaAnima's defense. Dr. Karen Ross concluded that "the victim suffered an impact to the left

side of the body." Dr. Ross also stated that she "found the injuries consistent with someone

havWig been struck from behind by a vehicle." (R.pp. 669-671).

According to Dr. Ross, the defendant should have been found guilty of

manlaughter or vehicular homicide. There was no deliberate act or specific intent to

inflict great harm to the victim, only accusation and assumption by the prosecutor.

The Petitioner most likely had in theory a

raI.inient. of the whole matter. The

act cif general intent is therefore:

The intent to perfonn an act even though the actor does not desire the

consequences that result. This is the state of mind required for the

commission of certain common-in-law crimes not requiring a specific

intent or riot imposing strict liability. General mt cut usu., takes the

form of nckIessncss (involving actual awareness of a risk mid the

culpable taking of that risk) or negligence (involving biarncworthy

inadvertence). Also termed aerieral crim in is I intent; ew'iemt 'nens ma.

In the instant case the evidence only supports IIC had a general intent for

something to happen, but not a murder. Petitioner was reckless in his action by not

controlling his vehicle that caused the injuries leading to the victims death. It is

believed by all testimony that Cerda-Anirria was not aware of the risk and the

culpability of the risk involved. When viewing all the iesiriiony and what the state

presented, Petitioner is not guilty of second degree murder.

The defendant's testimony and statement show that he admitted that he was

drunk that night and that he accidentally struck the woman with his vehicle. Even his

11

roommate

--

a State's witness, said that he observed Petitioner drinking alcohol all day

and that he was "drunker" when he returned home

There were witnesses who stated that Petitioner seemed normal in his driving

following the incident. However, Petitioner admitted to being scared nearly sober after

the accident.

Nevertheless, Petitioner, not knowing what to do whether go to the

hospital or leave her on the canal bank, panicked and put the victim's body in the front

seat.

Mr. Wayne Winkler is an expert accident re-constructionist. Mr Winkler told the

jury that the location of the victims bra and shirt in the park was consistent with

appellant's statement that the impact was an accident and that her top came off as he

attempted to place her in the vehicle.(R.pp.1080-1092) Based upon everything he

examined, he did not believe the evidence suggested that the impact was intentional.

(R.p.1109).

In Dr. Liuzza opinion, the death was an accidental motor vehicle related fatality

because he saw no evidence of homicide. (Rp.i ].92).

When Mr. Cerda-Anima accidentally struck the victim with his vehicle he

panicked. Only those people who knowingly participate in planning or executing a

crime are principals to that crime. More presence and subsequent panicking, or flight

from a crime scene is not enough to make one a principal to the crime. An individual

may be convicted only for the crime for which he personally has the requisite intent.

State v. Wiley, 880 So. 2d 854, 03-8841-a. App. 5 Cir 4/27104.

In this case, there was an accident which occurred at the park. Additionally,

12

there was the consumption of alcohol resulting in the defendant being an inattentive

driver on the road. Therefore, the state failed to carry its burden of proving beyond a

reasonable doubt that Mr. Cerda-Aniina, committed the crime of second degree murder.

The evidence is insufficient to support the conviction, and the State Court's

determination was unreasonable in light of the federal constitution and the U.S.

Supreme Court's precedent. As such, the conviction should be reversed.

Question No. 2

Petitioner Was Denied Effective Assistance Of Counsel, In Violation Of

The Fifth, Sixth, And Fourteenth Amendment.

Petitioner contends that his trial counsel was ineffective, in violation of the Sixth

Ame.nchnent to the United States Constitution, when counsel failed to raise numerous

valid objections. When denying relief, the State Courts erroneously interpreted or missapplied the Constitution and Law of the State of Louisiana and the United States. The

issue of ineffective assistance of counsel is a mixed question 61.1aw and fact. Woodfo:x

v. Cain, 609 F.3d 774, 789 (5th Cir. 20110); Richards vQuaternian, 566 F.3d 553, 561

(5th Cir. 2009).

The standard for judging performance of counsel was established by this Court

in Strickland v. Washington. 466 ftS. 668 (1984), establishing a two-part test f or

evaluating claims of ineffective assistance of counsel, requiring petitioner to prove

both deficient performance and resulting prejudice. Strickland, 466 L1.S. at 697. The

Supreme Court first held that "the defendant must show that counsel's representation

fell below an objective standard of reasonableness." Id. at 687-88. Second, "[t]he

13

defendant must show that there is a reasonable probability that, but for counsel's

unprofessional errors, the result of the proceeding would have been different." Id at

69; United States v. Kimler, 167 R3d 889, 893 (511 Cir. 1999).

In deciding ineffective assistance of counsel claims, the reviewing court need not

address both prongs of the conjunctive Strickland standard, but may dispose of such

claim based solely on a petitioner's failure to meet either prong of the test. Kilmer, 167

F.3d at 893. In the instant case:

A.

Trial Counsel Failed To Object To The Disqualification of The District

Attorney.

Petitioner was deprived of effective assistance of trial counsel when counsel

failed to object and follow up on a motion for the disqualification of the prosecutor,

Mr. Alfred Winter, after an initial written notice of a rniotion for disqualification of the

district attorney. Counsel's failure to object put Petitioner at a disadvantage.

Disqualification of the Prosecutor and calling Mr. Winter as a witness would have

provided the jury with substantial impeachment evidence.

At the heart of effective representation is the independent duty to investigate and

prepare. A review of the record in this case "clearly" indicates that Defense Counsel

performed inadequate pre-trial discovery, investigation of the facts and record, and

failed to interview and call witnesses.[See Appendix-13: Recuse or Disqualification

Motion Hearing T. Tr. Pg. 4.05-4 11 ].

Trial counsel, George Vedros withdrew the motion to disqualify the assistant

district attorney, Mr. Winter, knowing it would prejudice defendant's case. Mr. Vcdros

14

stated in his response:

"We believe that Mr. Winter [assist. D.A.,1 because he's so closely

that we would be

connected to this affidavit, that he would be

prejudiced at not being able to question him about this affidavit, so we'd

ask that he be disqualified from participating in the trial." Pg.408 line 27.

Counsel had a "duty to investigate." ABA Standards for Criniiiial Justice,

Standard 4-4.1, Strickland, supra.; Nealy v. Cabana, 764 F.2d 1173, 1177 (5th Cir.

1985). Consequently, our jurisprudence does not require Courts to "fabricate tactical

dec.iions on behalf of counsel when it appears on the face of the record that Counsel

made no strategic decisions at all-" Moore v. Johnson, 185 R3d 244, 261 (5th Cir.

1999); Strickland.

Defense counsel cannot sufficiently explain or justify his unaccountable failure

in allowing Mr. Winter to take part in the defendant's trial and not performing adequate

pretrial discovery, investigating the lacts and record. Defense counsel is not required to

make futile motions or objections. K-och v. Puckett, 907 F.2d 524, 527 (5th Cir. 1990);

Morris v., Thaler, No. 09-10529, 2011 WL 1886096, at 1 (5th Or. May 18, 2011)

(quoting Koch, 907 F.2d at 527).

Further, in the instant case, the motion to disqualified br recuse the district

attorney was not frivolous and needed to be expressed to the court in order to preserve

defendant's right to appeal and confront his witnesses

The Defendant's Sixth

Amendment rights were violated because counsel did not pursue the disqualification of

Mr. Winter. [See Appendix-B: Disqualification Motion Hearing.

B.

Trial Counsel Denied Petitioner The Right

1-

5

To

Confrontation and Cross-

Examination of Witnesses:

Another pertinent factor with regard to presenting Petitioner's defense was

confrontation and cross-examination. The Supreme Court's holding in Crane V.

Kentucky. 476 U.S. 683, 690-91, supports Petitioner's argument that his right to a fair

opportunity to present a defense, whether rooted in the Fourteenth Amendment's Due

Process Clause or the Sixth Amendment's Confrontation or Compulsory Clauses, was

violated by the Trial Court when it allowed the. Assistance District Attorney, Mr.

Winter, to remain involved in his trial. This violation was made worse when the trial

counsel failed to maintain the argument of disqualification of Mt Winter.

The defense could have questioned Mr. Winter regarding t/w bad act of him

interfering with an investigation and 'fabricating an affidavit that Dr. Ross signed off

on. This evidence precluded proper confrontation and cross-examination of the author

of the report (Dr. Ross' Affidavit). I.See Appendix-B: Affidavit and Autopsy Record].

Had this evidence/report been confronted by the defense there is a reasonable

probability that the outcome of the trial would have been (liffereut. See Crawford v,

Washington, 541 U.S. 36, 1.24 S.Ct. 1354, 158 L. Ed.2d 177 (2004). Due Process

affords the defendant the right of full confrontation and cross-examination of the

State's witnesses. Chambers IL Missisi, 410 1.LS. 284, 93 SCL. 1038, 35 L. Ed- 2d

297 (1973).

Had Petitioner been allowed confrontation, cross-examination, and presentation of

his defense

-

adequately prepared with Mr. Winter on the stand, there is a reasonable

probability that the outcome of the trial would have been different. This is a meritorious

16

issue. Failure to raise meritorious objections is ineffective on counsel's part and

performance. For this reason Petitioner's conviction should be reversed and remanded for

new trial and or evidentiary hearing.

C.

Trial Counsel Failed To Move For A Motion To Quash The Indictment For

Aggravated Rape, Knowing That The Stale Did Not Have The Required

Element To Support An Aggravated Rape Conviction.

The State filed a Bill of Indictment charging Petitioner with the violation of

LSA-R.S. 14:30.1 and LSA-R.S. 14:42, utilizing the short fi.rni method of indictment.

The use of short form indictments in murder/or rape prosecution is constitutionally

valid. State v. Bourque, 622 So.2d 198. This indictment failed to specify any evidence

that would support the underlined felony of aggravated rape. (See Appendix

B,

Exhibit "A," Indictment).

Trial counsel did not attempt 1.0 move for a motion to quash this aggravated rape

charge. From the beginning to the end of Petitioner's trial, prosecutors used this charge

to prejudiced him, and to iiiflarne the jury. Trial counsel attempted to move to quash

the indictment of the second degree iiiucder. However that was unsuccessful.

Defense Counsel had access to the information indicating the lack of evidence

concerning the aggravated rape charge; however, trial counsel failed to file a motion to

quash the rape charge that was used to indict the Petitioner on Second Degree Murder.

In order to charge someone with second degree murder, the state must show intent to

kill or in the commission of another felony

-

such as the Aggravated

Kape charge that

17

was used to indict Petitioner for second degree rnurder

v. Louisiana 523

U.S. 392, 399 (1998); see also, Wood v. Geogja, 370 U.S. 375. 390 (1962).

17

Defense Counsel failed to make a showing when the facts were clearly available

to him. Had this evidence been presented, he could have presented the facts and met

the necessary burden, and there is more than a. reasonable probability that the ruling of

the deficient indictment would have been different.

In establishing prejudice, it leads to the prosecutor using the rape charge

throughout the trial which prejudiced Petitioner and violated his Equal Protection and

Due Process rights. There was no written accusation on the indictment concerning the

rape. La. C.Cr.P. Art. 384 states that it must: be written. "Where there is no written

accusation of a crime, there can be no valid arraignment, trial or conviction, even

though no objection was lodged." Stay.e, 586 So.2d 652, 612 So.2d 153.

Applying the due process analysis, however, a Defendant cannot succeed unless he

shows that the indictment was so defective that it deprived the convicting court of

jurisdiction. McKay v. Collins, 12 F.3d 66, 68 (5th Cu. 1994). Approved Indictment

forms can be found in La. C. Cr. P. arts. 462 and 465. La. C. Cr. P. au.. 465 (A)(32),

provides the short form language for second degree murder.

The United States Supreme Court has held that "an indictment is sufficient if it

both informs the defendant of the accusation against him so as to enable him to prepare

his defense and affords him protection against double jeopardy" Unitedtes v.

PjLrow, 346 U.S. 374 (1953); United Statesv.Ramos, 537 F.3d 439, 459 (5th Cir.

2008); see also La. C. Cr. P. art. 464. See also Accord Liner V. Phel ps, 731 F.2d 1.201

(5th Cir. 1984)(addressing Louisiana's short form indictment, and first degree murder);

see also Thompson v. Cain, No. 08..0252, 2009 "IL 775043, at * 10 (W.D. La. Mar. 24,

1.8

2009) (addressing Louisiana's short form indictment and armed robbery); fpp1an V.

Cain, No. 07-4200, 2008 WL 1746710, at * 9 ii. 15 (]L.D La. Apr. 14, 2008)

(

addressing Louisiana's short form indictment and aggravated rape).

La. C. Cr. P. art. 464 provides:

The indictment shall be a plain, concise, and definite written statement of

the essential facts constituting the offense charged. It shall state for each

count the official or customary citation of the statute which the defendant

is alleged to have violated. Error in the citation or its omission shall not be

ground for dismissal of the indictment or for reversal ol' a conviction if the

error or omission did not mislead the defendant to his prejudice (emphasis

added).

In this case, Petitioner was mislead, and thus, his defense was prejudiced.

In State v. Washington, 2005-0035 (La. App. 4 Cir. 416105), 900 So.2d 1072, the

Court found that the substantial rights of a criminal defendant are riot affected per se

solely because he is indicted by a grand jury selected pursuant to local laws passed by

the Louisiana State Legislature. The Washington Court held that the indictment for

armed robbery and aggravated rape returned by tlic grand jury, selected pursuant to

unconstitutional law, was a non-jurisdictional defect that had to be raised by pre-trial

motion to quash the indictment. In this case a pre-trial motion was filed for second

degree murder, but riot the aggravated rape charge. Trial Court and the State erroneously

interpreted or miss-applied the Constitution and Law of the State of Louisiana and the

United States.

Therefore defendant is entitled to his conviction and sentence being reversed and

remanded for new trial. Petitioner suffered prejudice when trial counsel failed to

challenge the unconstitutionally obtained indictment. Further, the trial court erred and

19

abused its discretion in denying relief for the reasons argued above.

The lower court's "determination" of facts from the evidence before it was objectively

"unreasonable" because; 1). The court ignored record evidence supporting the petitioner's

contentions, 2). The court reached conclusions based on inferences not supported by the record

evidence; 3). The court's erroneous "decision" denying relief on petitioner's constitutional

claims "resulted" from an objectively "unreasonable determination of the facts.

.

Conclusively Mr. Cerda-Anima was denied effective assistance of counsel, due process

and a fair trial.

CONCLUSION

Mr. Cerda-Anima acting pro se reasonably articulated the factual basis of his claims, and

the lower courts read him the law

-

without reasonably applying it to the facts of his case. The

conviction and sentence in this case is unjust and wrong.

In Chambers v. Mississippi, 410 U.S. 287, 93 S.Ct. 1038, 35 L.Ed.2d 297 (1973), the

Supreme Court held the right of an accused in a criminal trial to due process is, in essence, the

right to a fair a fair opportunity to defend against the state's accusations. The rights to confront

and cross-examine witnesses and to call witi'iesses in one's own behalf having long been

recognized as essential to due process. To secure these rights, this court applying firmly held

United States Supreme Court precedent., require reviewing courts to evaluate the evidence that

was presented supporting a claim counsel was ineffective.

The constitutional claims were not fully and fiuirly adjudicated and reasonable jurists

would find the Court of Appeal's assessment of the coristitutiojuil claims debatable or wrong.

Petitioner suggests he has presented questions of constitutional substance that adequately

deserve encouragement to proceed further. 28 U.S.C.A.2253(c)(2).

20

WHEREFORE the lower courts erred denying COA, this Honorable court may grant

certiorari or remand to the U.S. Fifth Circuit for further proceedings

Respectfully submitted on this

7 day of

,

l

a

2018.

____-_

Edmundo Cerda-iw inia

D.O.C. # 694309. Walnut 3

Louisiana State Penitentiary

Angola, Louisiana 70712

21