Petition for Writ of Certiorari — David Scott Temple, Petitioner v. Darrel Vannoy, Warden

Supreme Court briefJul 7, 2020

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APPENDIX “H”

MAGISTRATE’S REPORT

AND RECOMMENDATION

U.S. District Court - Eastern District of Louisiana

i:.

David Scott Temple 562616

Louisiana State Penitentiary

General Delivery

Angola, LA 70712

Case: 2:18-cv-01536 #8

23 pages.

Fri Sep 7 17:02:58 2018

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF LOUISIANA

DAVID SCOTT TEMPLE

CIVIL ACTION

VERSUS

NO. 18-1536

DARREL VANNOY, WARDEN

SECTION “B”(4)

REPORT AND RECOMMENDATION

This matter was referred to a United States Magistrate Judge to conduct hearings, including

an evidentiary hearing if necessary, and to submit proposed findings and recommendations

pursuant to 28 U.S.C. § 636(b)(1)(B) and (C), and as applicable, Rule 8(b) of the Rules

Governing Section 2254 Cases. Upon review of the-entire record, the Court has determined that

this matter can be disposed of without an evidentiary hearing. See 28 U.S.C. § 2254(e)(2) (2006).1

Factual and Procedural Background

The petitioner, David Scott Temple (“Temple”), is a convicted inmate incarcerated in the

Louisiana State Penitentiary in Angola, Louisiana.2 On February 6, 2015, Temple was charged by

Bill of Information in St. Tammany Parish with one count of aggravated second degree battery

and one count of second degree kidnapping.3 He entered a not guilty plea to the charges on

February 19, 2015.4

The State intended to prove at trial that, between November 22 and 24, 2014, Temple

imprisoned his girlfriend in their shared residence.5

Over the course of that weekend, Temple

’Under 28 U.S.C. § 2254(e)(2), an evidentiary hearing is held only when the petitioner shows that either the

claim relies on a new, retroactive rule of constitutional law that was previously unavailable or a factual basis that could

not have been previously discovered by the exercise of due diligence and the facts underlying the claim show by clear

and convincing evidence that, but for the constitutional error, no reasonable jury would have convicted the petitioner.

2Rec. Doc. No. 1.

3St. Rec. Vol. 1 of 3, Bill of Information, 2/6/15.

4St. Rec. Vol. 1 of 3, Minute Entry, 2/19/15.

5A1 though the state courts did not provide a findings of fact, the State’s proposed facts were presented to the

state trial court in a pretrial Notice of Intent to Introduce Other Crimes Evidence, St. Rec. Vol. 1 of 3, 8/6/15.

repeatedly, physically abused the victim and refused to allow her to leave. On November 22,2014,

Temple physically beat the victim with a flashlight, two metal candle holders, and his belt. The

victim suffered a fractured patella from being hit by a candle holder.

Temple also reportedly rammed the victim’s head into a hard floor before cutting her

clothes off with a pocket knife to leave her completely nude. Subsequent to this, he dragged her

by the hair outside where he fastened her to the back of his truck with a chain and dog collar and

proceeded to drive around the field adjacent to their residence in “doughnut” fashion. Temple

eventually unfastened her, and attempted to chase her in the field with his vehicle. Upon returning

inside the residence, the victim was made to take a shower and clean herself. Temple also

threatened to kill her, as well as her young daughter, and detailed how he would do so.

The following day, Temple made the victim clean up the house in an attempt to eliminate

any sign of violence or criminal activity. She eventually found refuge through the assistance of a

neighbor who had returned home from the weekend on November 24, 2014. Temple was arrested

on November 25, 2014, in Washington Parish pursuant to an arrest warrant.

On August 10 and 12, 2015, Temple was tried before a jury.6 Following the lunch recess

on the second day of trial, Temple advised his appointed counsel and the state trial court that he

wished to plead guilty.7 After discussions before the Court, Temple entered pleas of guilty to both

counts and to a multiple bill filed by the State.8 The Trial Court sentenced Temple to concurrent

sentences of 15 years in prison on count one and 60 years in prison as a second offender on count

6St. Rec. Vol. 1 of 3, Trial Minutes, 8/10/15; Trial Minutes, 8/12/15.

7St. Rec. Vol. 1 of 3, Trial Minutes, 8/12/15; Guilty Plea Transcript, 8/12/15.

8St. Rec. Vol. 1 of 3, Trial Minutes, 8/12/15; Guilty Plea Transcript, 8/12/15; Multiple Bill, 8/12/15.

two, with the latter sentence to be served without benefit of probation or suspension of sentence

and without benefit of parole for the first two years. 9

Temple’s conviction became final thirty (30) days later, on September 11, 2015, when he

did not seek reconsideration of the sentence or move for leave to appeal. La. Code Crim. P. art.

914;10 Butler v. Cain, 533 F.3d 314, 317 (5th Cir. 2008) (quoting Roberts v. Cockrell, 319 F.3d

690, 694 (5th Cir. 2003)) (“[A] conviction becomes final when the time for seeking further direct

review in the state court expires.”).

On December 21, 2015, Temple signed and submitted to the state trial court an application

for post-conviction relief in which he alleged that he was denied his right to a direct appeal.1' On

February 22, 2016, the Trial Court denied relief finding that Temple knowingly waived his right

to appeal during the guilty plea colloquy.12 Temple did not seek review of this ruling.

On March 30, 2016, Temple signed and submitted to the state trial court a second

application for post-conviction relief in which he asserted the following:13 (1) he was denied

effective assistance of counsel; and (2) the Trial Court abused its discretion by accepting the guilty

pleas. On May 10, 2016, the Trial Court denied relief holding that Temple failed to prove

9St. Rec. Vol. 1 of 3, Trial Minutes, 8/12/15; Guilty Plea Transcript, 8/12/15; Reasons for Judgment, 9/29/15.

10Louisiana law requires a criminal defendant to move for leave to appeal within thirty (30) days of the order

or judgment being appealed or a ruling on a timely motion to reconsider a sentence. La. Code Crim. P. art. 914 (as

amended La. Acts 2003, No. 949, § 1). Failure to move timely for appeal under Art. 914 rendered the conviction and

sentence final at the expiration of that period. State v. Counterman, 475 So.2d 336, 338 (La. 1985).

"St. Rec. Vol. 1 of 3, Application for Post-Conviction Relief, 12/23/15 (dated 12/21/15).

12St. Rec. Vol. 1 of 3, Trial Court Order, 2/22/16.

13St. Rec. Vol. 1 of 3, Application for Post-Conviction Relief, 4/4/16 (dated 3/30/16).

ineffective assistance of counsel under Strickland v. Washington, 466 U.S. 668 (1984), and that

the second issue was repetitive of his prior application, citing La. Code Crim. P. art. 930.4.14

The Louisiana First Circuit Court of Appeal denied Temple’s related writ application on

September 22, 2016, finding that Temple’s pleas and waiver of his rights were knowingly and

voluntarily made, and the ineffective assistance of counsel claim was waived by the unconditional

guilty pleas.15

On January 12, 2018, the Louisiana Supreme Court denied Temple’s writ

application holding that he failed to prove ineffective assistance of counsel under Strickland and

failed to meet his burden of proof on the second claim.16

II.

Federal Petition

On February 14, 2018, the clerk of this Court filed Temple’s federal petition for habeas

corpus relief in which he asserts two grounds for relief:17 (1) he received ineffective assistance of

counsel; and, (2) the state trial court abused its discretion by accepting the guilty pleas.

The State filed a response in opposition to Temple’s petition alleging that his claims are ;

without merit.18 In his reply, Temple reiterates his arguments in support of his claims.19

III.

General Standards of Review

l4St. Rec. Vol. 1 of 3, Trial Court Order, 5/10/16.

15St. Rec. Vol. 2 of 3,1st Cir. Order, 2016-KW-0713,9/22/16; 1st Cir. Writ Application, copy dated 5/26/15.

'6State ex rel. Temple v. State__ So.3d _, 2018 WL 460735, at *1 (La. Jan. 12, 2018); St. Rec. Vol. 3 of 3,

La. S. Ct. Order, 2016-KH-1900, 1/12/18; La. S. Ct. Writ Application, 10/20/16 (dated 10/5/16).

17Rec. Doc. No. 1.

l8Rec. Doc. No. 6

19Rec. Doc. No. 7.

The Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), Pub. L. No. 104132, 110 Stat. 1214,20 applies to this petition, which is deemed filed in this Court no later than

February 12, 2018.21 The threshold questions on habeas review under the amended statute are

whether the petition is timely and whether the claim raised by the petitioner was adjudicated on

the merits in state court; i. e., the petitioner must have exhausted state court remedies and must not

be in “procedural default” on a claim. Nobles v. Johnson, 127 F.3d 409, 419-20 (5th Cir. 1997)

(citing 28 U.S.C. § 2254(b), (c)).

The State concedes and the record establishes that Temple’s petition was timely, state court

review was exhausted, and no claim is in procedural default. The Court will address the claims.

IV.

Standards of a Merits Review

The AEDPA standard of review is governed by § 2254(d) and the Supreme Court’s

decision in Williams v. Taylor, 529 U.S. 362 (2000). It provides different standards for questions

of fact, questions of law, and mixed questions of fact and law.

A state court’s determinations of questions of fact are presumed correct and the Court must

give deference to the state court findings unless they were based on an unreasonable determination

20The AEDPA comprehensively revised federal habeas corpus legislation, including 28 U.S.C. § 2254, and

applied to habeas petitions filed after its effective date, April 24,1996. Flanagan v. Johnson, 154 F.3d 196, 198 (5th

Cir. 1998) (citing Lindh v. Murphy, 521 U.S. 320 (1997)). The AEDPA, signed into law on that date, does not specify

an effective date for its non-capital habeas corpus amendments. Absent legislative intent to the contrary, statutes

become effective at the moment they are signed into law. United States v. Sherrod, 964 F.2d 1501, 1505 n.ll (5th

Cir. 1992).

21The Fifth Circuit has recognized that a “mailbox rule” applies to pleadings, including habeas corpus

petitions filed after the effective date of the AEDPA, submitted to federal courts by prisoners acting pro se. Under

this rule, the date when prison officials receive the pleading from the inmate for delivery to the court is considered the

time of filing for limitations purposes. Coleman v. Johnson, 184 F.3d 398,401 (5th Cir. 1999); Spotville v. Cain, 149

F.3d 374, 378 (5th Cir. 1998); Cooper v. Brookshire, 70 F.3d 377, 379 (5th Cir. 1995). The clerk of court filed

Temple’s petition on February 12, 2018, and opened the case when the filing fee was paid. The official stamp of the

prison legal programs department reflects that the pleading was received from Temple on February 12, 2018, for

electronic mailing to the Court. The fact that he paid the filing fee does not alter the application of the federal mailbox

rule to his pro se petition. See Cousin v. Lensing, 310 F.3d 843, 847 (5th Cir. 2002).

of the facts in light of the evidence presented in the state court proceeding. 28 U.S.C. § 2254(d)(2)

(2006); see Hill v. Johnson, 210 F.3d 481,485 (5th Cir. 2000), cert, denied, 532 U.S. 1039 (2001).

The amended statute also codifies the “presumption of correctness” that attaches to state court

findings of fact and the “clear and convincing evidence” burden placed on a petitioner who

attempts to overcome that presumption. 28 U.S.C. § 2254(e)(1).

A state court’s determination of questions of law and mixed questions of law and fact are

reviewed under § 2254(d)(1), as amended by the AEDPA. The standard provides that deference

be given to the state court’s decision unless the decision is “contrary to or involves an unreasonable

application of clearly established federal law” as determined by the United States Supreme Court.

Hill, 210 F.3d at 485. The “critical point” in determining the Supreme Court rule to be applied “is

that relief is available under § 2254(d)(1)’s unreasonable-application clause if, and only if, it is so

obvious that a clearly established rule applies to a given set of facts that there could be no

‘fairminded disagreement’ on the question.” White v. Woodall, 572 U.S. 415, —, 134 S. Ct. 1697,

1706-07 (2014) (citing Harrington v. Richter, 562 U.S. 86, 103 (2011)). “Thus, ‘if a habeas court

must extend a rationale before it can apply to the facts at hand,’ then by definition the rationale

was not ‘clearly established at the time of the state-court decision.’” White, 134 S. Ct. at 1706

(quoting Yarborough v. Alvarado, 541 U.S. 652, 666 (2004)).

A state court’s decision can be “contrary to” federal law if: (1) the state court arrives at a

conclusion opposite to that reached by the Supreme Court on a question of law; or (2) the state

court decides a case differently than the Supreme Court has on a set of materially indistinguishable

facts. Williams, 529 U.S. at 405-06,412-13; Penry v. Johnson, 532 U.S. 782, 792-93 (2001); Hill,

210 F.3d at 485. A state court’s decision can involve an “unreasonable application” of federal law

if it correctly identifies the governing rule but then applies it unreasonably to the facts. White, 134

S. Ct. at 1706-07; Williams, 529 U.S. at 406-08, 413; Penry, 532 U.S. at 792.

The Supreme Court in Williams did not specifically define “unreasonable” in the context

of decisions involving unreasonable applications of federal law. See Williams, 529 U.S. at 410.

The Court, however, noted that an unreasonable application of federal law is different from an

incorrect application of federal law. Id. ‘“[A] federal habeas court may not issue the writ simply

because that court concludes in its independent judgment that the state-court decision applied [a

Supreme Court case] incorrectly.’” Price v. Vincent, 538 U.S. 634,641 (2003) (quoting Woodford

v. Visciotti, 537 U.S. 19, 24-25 (2002)) (brackets in original); Bell v. Cone, 535 U.S. 685, 699

(2002).

Thus, under the “unreasonable application” determination, the Court need not determine

whether the state court’s reasoning is sound, rather “the only question for a federal habeas court is

whether the state court’s determination is objectively unreasonable.” Neal v. Puckett, 286 F.3d

230, 246 (5th Cir. 2002). The burden is on the petitioner.to show that the state court applied the

precedent to the facts of his case in an objectively unreasonable manner. Price, 538 U.S. at 641

(quoting Woodford, 537 U.S. at 24-25); Wright v. Quarterman, 470 F.3d 581, 585 (5th Cir. 2006).

In addition, review under § 2254(d)(1) is limited to the record before the state court that

adjudicated the claim on the merits. Cullen v. Pinholster, 563 U.S. 170, 181 (2011).

Ineffective Assistance of Counsel

Temple alleges that he was denied effective assistance of counsel when his counsel failed

to present an intoxication defense and, according to the fee bill submitted to the public defender’s

office, counsel did not spend enough time preparing for the case. Temple suggests that he “was

virtually forced to plead guilty” because counsel failed to interview witnesses, investigate the

allegations, or prepare a possible intoxication defense.22 Temple asserted this claim on state post

conviction review, which ultimately was summarily denied by the Louisiana Supreme Court under

Strickland.

The issue of ineffective assistance of counsel is a mixed question of law and fact. Clark v.

Thaler, 673 F.3d 410, 416 (5th Cir. 2012); Woodfox v. Cain, 609 F.3d 774, 789 (5th Cir. 2010).

The question for this Court is whether the state courts’ denial of relief was contrary to, or an

unreasonable application of, federal law as determined by the Supreme Court.

The Supreme Court’s holding in Strickland is the appropriate standard for judging the

performance of counsel when a defendant enters a plea of guilty. Hill v. Lockhart, 474 U.S. 52,

58 (1985). In Strickland, the Court established a two-part test for evaluating claims of ineffective

assistance of counsel in which the petitioner must prove deficient performance and prejudice

therefrom. Strickland, 466 U.S. at 687. The petitioner has the burden of proving ineffective

assistance of counsel by a preponderance of the evidence. Montoya v. Johnson, 226 F.3d 399,408

(5th Cir. 2000); Jernigan v. Collins, 980 F.2d 292, 296 (5th Cir. 1992). In deciding ineffective

assistance claims, a court need not address both prongs of the conjunctive Strickland standard, but

may dispose of such a claim based solely on a petitioner’s failure to meet either prong of the test.

Amos v. Scott, 61 F.3d 333, 348 (5th Cir. 1995).

Applying Strickland under Hill in the context of a plea, the deficiency prong is satisfied by

a showing that ‘“counsel’s representation fell below an objective standard of reasonableness.’”

Hill, A1A U.S. at 57 (quoting Strickland, 466 U.S. at 687-88). “[I]t is necessary to ‘judge . . .

counsel’s challenged conduct on the facts of the particular case, viewed as of the time of counsel’s

22Rec. Doc. No. 1, p. 8.

conduct.’” Lockhart v. Fretwell, 506 U.S. 364, 371 (1993) (quoting Strickland, 466 U.S. at 690).

Petitioner must overcome a strong presumption that the conduct of his counsel falls within a wide

range of reasonable representation. Harrington, 562 U.S. at 104 (citing Strickland, 466 U.S. at

689). “[I]t is all too easy to conclude that a particular act or omission of counsel was unreasonable

in the harsh light of hindsight.” Bell, 535 U.S. at 702 (citing Strickland, 466 U.S. at 689).

To prove prejudice, the 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.’”

Bell, 535 U.S. at 695 (quoting Strickland, 466 U.S. at 694); United States v. Kimler, 167 F.3d 889,

893 (5th Cir. 1999). In the context of a guilty plea, “[i]n order to satisfy . . . [Strickland’s]

‘prejudice’ requirement, the defendant must show that there is a reasonable probability that, but

for counsel’s errors, he would not have pleaded guilty and would have insisted on going to trial.

Hill, 474 U.S. at 59. Furthermore, “[t]he petitioner must ‘affirmatively prove,’ [and] not just

allege, prejudice.” Day v. Quarterman, 566 F.3d 527, 536 (5th Cir. 2009) (quoting Strickland,

466 U.S. at-693). In this context, “‘[a] reasonable probability is a probability sufficient to

undermine confidence in the outcome.’” Cullen, 563 U.S. at 189 (quoting Strickland, 466 U.S. at

694). This standard requires a “substantial,” not just “conceivable,” likelihood of a different result.

Harrington, 562 U.S. at 112. Thus, conclusory allegations with no showing of effect on the

proceedings do not raise a constitutional issue sufficient to support federal habeas relief. Miller v.

Johnson, 200 F.3d 274, 282 (5th Cir. 2000) (citing Ross v. Estelle, 694 F.2d 1008, 1012 (5th Cir.

1983)).

On habeas review, the Supreme Court has clarified that, in applying Strickland, “[t]he

question is whether an attorney’s representation amounted to incompetence under prevailing

professional norms, not whether it deviated from best practices or most common custom.

Harrington, 562 U.S. at 105. The Harrington Court went on to recognize the high level of

deference owed to a state court’s findings under Strickland in light of AEDPA standards of review:

The standards created by Strickland and §2254(d) are both highly deferential, and

when the two apply in tandem, review is doubly so. The Strickland standard is a

general one, so the range of reasonable applications is substantial. Federal habeas

courts must guard against the danger of equating unreasonableness under Strickland

with unreasonableness under § 2254(d). When § 2254(d) applies, the question is

not whether counsel’s actions were reasonable. The question is whether there is

any reasonable argument that counsel satisfied Strickland's deferential standard.

Id., at 105 (citations and quotation marks omitted).

Thus, scrutiny of counsel’s performance under § 2254(d) therefore is “doubly deferential.”

Cullen, 563 U.S. at 190 (quoting Knowles v. Mirzayance, 556 U.S. Ill, 112 (2009)). The federal

courts must take a “highly deferential” look at counsel’s performance under the Strickland standard

through the “deferential lens of § 2254(d).” Id. (citing Strickland, 466 U.S. at 689, and quoting

Knowles, 556 U.S. at 121 n.2).

In this case, Temple’s claims of ineffective assistance are conclusory and not based on any

specific proof or fact. Temple assumes his counsel was ill prepared based on the reimbursement

time sheets submitted by him. The record, however, does not support a conclusion that counsel

provided less than effective assistance or was unprepared to present a defense. Temple insisted on

changing his plea during the presentation of the State’s case and before his counsel had any

opportunity to put on a defense or call any witnesses. Counsel cannot be presumed to have failed

to present a defense or call witnesses when there was no opportunity to do so before the plea was

entered. Temple also places great weight on counsel’s time commitment rather than the quality of

representation. His claim admittedly is based strictly on the unsupported supposition that the time

spent was not adequate to defend against the State’s case.

This conjecture is not sufficient to meet his burden of establishing that more investigation

or preparation was required.

When a habeas petitioner alleges a failure of his counsel to

investigate, he “must allege with specificity what the investigation would have revealed and how

it would have altered the outcome of the trial.’” Moawad v. Anderson, 143 F.3d 942, 948 (5th Cir.

1998) (citation omitted). In other words, a petitioner cannot show prejudice with respect to a claim

that counsel failed to investigate without adducing what the investigation would have shown. Diaz

v. Quarterman, 239 F. App’x 886, 890 (5th Cir. 2007) (citing Strickland, 466 U.S. at 696, in

recognizing that some evidence is required to show that “the decision reached would reasonably

likely have been different.”). Instead, to prevail on such a claim, the petitioner must provide factual

support as to what exculpatory evidence further investigation would have revealed. See Moawad,

143 F.3d at 948; see also Brown v. Dretke, 419 F.3d 365, 375 (5th Cir. 2005); Davis v. Cain, No.

07-6389, 2008 WL 5191912, at *10 (E.D. La. Dec. 11, 2008) (order adopting Report and

Recommendation). Similarly, it is well settled that ‘“[cjomplaints of uncalled witnesses are not

favored, because the presentation of testimonial evidence is a matter of trial strategy' and because

allegations of what a witness would have testified are largely speculative.’” Graves v. Cockrell,

351 F.3d 143, 156 (5th Cir. 2003) (quoting Buckelew v. United States, 575 F.2d 515, 521 (5th Cir.

1978)).

Temple has failed to establish in any court that any further investigation was needed or that

the investigation or any other witness would have uncovered exculpatory evidence as he vaguely

contends. Temple also suggests perhaps that his trial counsel should have interviewed his family

about his proclivity to drink. He is not clear, however, what exculpatory information this would

have disclosed, especially since he has not presented any proof that he was actually intoxicated

during the commission of these crimes. Temple’s generalized claims remain unsupported and

conclusory which is not sufficient to establish a deficiency in or prejudice from his counsel’s

performance. Moawad, 143 F.3d at 948; Green v. Johnson, 160 F.3d 1029, 1042 (5th Cir. 1998)

(“Mere conclusory allegations in support of a claim of ineffective assistance of counsel are

insufficient to raise a constitutional issue.”).

Nevertheless, even if counsel “rendered totally ineffective assistance to a defendant

entering a guilty plea, the conviction should be upheld if the plea was voluntary.” Gallow v.

Cooper, 505 F. App’x 285, 294 (5th Cir. 2012) (quoting DeVille v. Whitley, 21 F.3d 654, 659 (5th

Cir. 1994)). Temple’s sworn statements at his plea hearing refute his arguments that his plea was

not knowing and voluntary or was somehow compelled by his counsel’s performance.

As background, the plea offer accepted by Temple was not the first offer on the record.

Prior to selection of the jury, the Court engaged in discussions with Temple about a plea offer

presented by the State.23 Temple rejected the offer and chose to proceed to trial. The Court

questioned Temple at that time about his understanding of the charges and the jury trial process

and about his educational background.

Temple personally expressed his understanding and

readiness for trial.

The next day, after the testimony of two officers and presentation of numerous pictures of

the victim’s injuries, the State advised the Court that the parties had reached a plea resolution.

Specifically, Temple agreed to plead guilty to both counts and would plead guilty to the multiple

bill as to the second count for which he would receive a 60-year concurrent sentence.24

23St. Rec. Vol. 1 of 3, Trial Minutes, 8/10/15.

24St. Rec. Vol. 1 of 3, Trial Minutes, 8/12/15; Guilty Plea Transcript, p. 2, 8/12/15.

Temple engaged in discussions with counsel before the pleas, and repeatedly indicated his

remorse and desire to avoid taking the victim through an unnecessary trial.25 In response to the

State’s presentation of the deal, appointed counsel stated that he was prepared to try the case.26 He

' further stated, “I had a quite frank discussion with Mr. Temple and his parents, who were sitting

behind us, where Mr. Temple spontaneously asked that he change his plea to guilty.”27 Temple

himself advised the Court that this was correct.

After Temple was sworn under oath, the Court engaged in an extensive colloquy about his

background, his constitutional rights, and his understanding of the proceedings and the charges

against him, including the sentencing consequences. Temple also stated he was satisfied with the

services of his attorney:28

BY THE COURT: Are you satisfied with your lawyer’s work?

BY MR. TEMPLE: Yes.

BY THE COURT: Did he explain your rights to you, sir?

BY MR. TEMPLE: Yes.

Temple never indicated that he felt his lawyer was unprepared for trial or unable to

adequately and effectively represent him. The state trial court also asked the following question:29

BY THE COURT: Has anyone forced or coerced you to plead guilty.

BY MR. TEMPLE: No, ma’am.

25St. Rec. Vol. 1 of 3, Guilty Plea Transcript, pp. 3-4, 8/12/15.

2eId. at pp. 3-4.

21 Id. at p. 4.

2SId. atpp. 15-16.

29Id. atp. 15.

Again, at no point did Temple tell the state trial court that he felt forced to plead guilty

because of his counsel’s performance. Instead, he clearly advised the Court that he was entering

the guilty plea because he in fact committed the crimes charged.30 His plea was knowingly and

voluntarily made, as will be further discussed below, and therefore any claim of ineffective

assistance of counsel prior to the plea must fail.

Temple’s sworn declarations at his plea hearing contradict his claim that his counsel’s

performance virtually forced him to plead guilty or that counsel otherwise failed properly to advise

him with respect to the plea of guilty. Temple chose to enter the plea of guilty and by all accounts

in the record did so knowingly and voluntarily of his own accord and not because of some

contrived notion of unprepared or ineffective assistance of counsel. He has not established that

but for any action by his counsel, he would not have entered the plea.

For these reasons, Temple has failed to establish that he was denied effective assistance of

counsel or that the state courts’ denial of relief on this issue was contrary to or an unreasonable

application of federal law. He is not entitled to relief on this claim.

VI.

Knowin2 and Voluntary Pleas

Temple claims that his pleas of guilty to the charges and the multiple bill were not

knowingly and voluntarily made because he was not an educated person and had a known drinking

problem. As addressed previously, the record reflects that Temple agreed to plead guilty to both

aggravated second degree battery and second degree kidnapping and would plead guilty to the

multiple bill as to the second count for which he would receive a 60-year concurrent sentence.31

30M. atp. 15.

31St. Rec. Vol. 1 of 3, Trial Minutes, 8/12/15; Guilty Plea Transcript, p. 2, 8/12/15.

Temple discussed the plea at length with his appointed counsel before addressing the state trial

court, with whom he also spoke extensively before the plea.32

Temple first asserted this claim of an unknowing and involuntary plea in his second state

application for post-conviction relief, which was denied by the Louisiana Supreme Court which

held that Temple failed to meet his burden of proof on the issue.

The validity of a guilty plea is a question of law, although historical facts are entitled to a

presumption of correctness. See Parke v. Raley, 506 U.S. 20, 35 (1992) (citing Marshall v.

Lonberger, 459 U.S. 422, 431 (1983)); United States v. Hernandez, 234 F.3d 252, 254 (5th Cir.

2000) (citing United States v. Amaya, 111 F.3d 386, 388 (5th Cir. 1997)); Barnes v. Johnson, 160

F.3d 218, 222 (5th Cir. 1988). The Court must therefore determine if denial of relief was contrary

to, or an unreasonable application of, federal law.

“A guilty plea will be upheld on habeas review if entered into knowingly, voluntarily, and

intelligently.” Montoya, 226 F.3d at 404 (citing James v. Cain, 56 F.3d 662, 666 (5th Cir. 1995)).

A plea therefore “is constitutionally valid only to the extent it is ‘voluntary’ arid ‘intelligent.’”

Bousley v. United States, 523 U.S. 614, 618 (1998) (quoting Brady v. United States, 397 U.S. 742,

748 (1970)). Thus, a petitioner generally may not “collaterally attack a voluntary and intelligent”

plea. Taylor v. Whitley, 933 F.2d 325, 329 (5th Cir. 1991).

“The voluntariness of a plea is determined by ‘considering all of the relevant circumstances

surrounding it.’” Fisher v. Wainwright, 584 F.2d 691, 693 (5th Cir. 1978) (quoting Brady, 397

U.S. at 749). Pleas are involuntary when induced by threats, improper promises, deception, or

32St. Rec. Vol. 1 of 3, Guilty Plea Transcript, 8/12/15.

misrepresentation. See Amaya, 111 F.3d at 389. “If a defendant understands the charges against

him, understands the consequences of [the] plea, and voluntarily chooses to plead . . . without

being coerced to do so, the . . . plea . . . will be upheld on federal review.” Frank v. Blackburn,

646 F.2d 873, 882 (5th Cir. 1980), modified on other grounds, 646 F.2d 902 (5th Cir. 1981).

A plea qualifies as intelligently given when the criminal defendant enters it after receiving

‘“real notice of the true nature of the charge against him, the first and most universally recognized

requirement of due process.’” Bousley, 523 U.S. at 618 (quoting Smith v. O’Grady, 312 U.S. 329,

334 (1941)). “To be knowing and intelligent, the defendant must have ‘a full understanding of

what the plea connotes and of its consequences.’” Hernandez, 234 F.3d at 255 (quoting Boykin,

395 U.S. at 244). “The consequences of a guilty plea, with respect to sentencing, mean only that

the defendant must know the maximum prison term and fine for the offense charged.” United

States v. Rivera, 898 F.2d 442, 447 (5th Cir. 1990); Abies v. Scott, 73 F.3d 591, 592 n.2 (5th Cir.

1996). A defendant who is aware of the maximum term of imprisonment he faces is aware of the

consequences of his pilea, thus rendering it valid for constitutional purposes. Hobbs v. Blackburn,

752 F.2d 1079, 1082 (5th Cir.), cert, denied, 474 U.S. 838 (1985); Hernandez, 234 F.3d at 256-57

(with respect to sentencing issues, a matter is a direct consequence of the plea only if it is related

to either the length or nature of the sentence).

Louisiana law follows the same directives in its requirements under the provisions of La.

Code Crim. P. art. 556.1 regarding guilty pleas to a felony.33 Thus, Temple’s guilty pleas are

33For example, La. Code Crim. P. art. 556.1(A) provides in relevant part as follows:

In a felony case, the court shall not accept a plea of guilty or nolo contendere without first

addressing the defendant personally in open court and informing him of, and determining that he

understands, all of the following:

constitutionally valid if he understood the nature of the charges against him and the constitutional

protections being waived and was aware of his sentence exposure. See James, 56 F.3d at 666

(citing Henderson v. Morgan, 426 U.S. 637, 645 n.13 (1976)).

The record reflects that Temple, after being placed under oath, understood the proceedings,

the waivers he made, the confession of guilt to the charges, and the negotiated sentence. The state

trial court directly engaged with Temple to determine his age, education background, ability to

read and write, his ability to drive, and his ability to handle his personal and financial affairs.

Temple also stated that he was not under the influence of narcotics or alcohol at that time.35

Specific to the charges, the state trial court read the elements required to prove each count

and the sentencing ranges for each count.36 Temple indicated his understanding of both the

elements and respective sentencing ranges. The state trial court explained Temple s constitutional

(1)

The nature of the charge to which the plea is offered, the mandatory minimum penalty

provided by law, if any, and the maximum possible penalty provided by law. [. . .]

(3)

That he has the right to plead not guilty or to persist in that plea if it has already been made,

and that he has the right to be tried by a jury and at that trial has the right to the assistance of counsel,

the right to confront and cross-examine witnesses against him, and the right not to be compelled to

incriminate himself.

That if he pleads guilty or nolo contendere there will not be a further trial of any kind, so

(4)

that by pleading guilty or nolo contendere he waives the right to a trial.

In a felony case, the court shall not accept a plea of guilty or nolo contendere without first

addressing the defendant personally in open court and determining that the plea is voluntary

and not the result of force or threats or of promises apart from a plea agreement.

The court shall also inquire as to whether the defendant's willingness to plead guilty or nolo

contendere results from prior discussions between the district attorney and the defendant

or his attorney. If a plea agreement has been reached by the parties, the court, on the record,

shall require the disclosure of the agreement in open court or, on a showing of good cause,

in camera, at the time the plea is offered.

34St. Rec. Vol. 1 of 3, Guilty Plea Transcript, pp. 6-9, 8/12/15.

25Id. atpp. 9-10.

26Id. atpp. 10-12.

rights, including his right to counsel, to trial with or without a jury, to confront and cross-examine

witnesses against him, to require the State to prove each element beyond a reasonable doubt, to

subpoena witnesses, to the privilege against self-incrimination, and to appeal.37 The Court made

clear to him that by pleading guilty, he was waiving all of those rights.38 Temple indicated that he

understood all of the constitutional rights explained to him and stated “Yes,” when asked if he still

wished to waive all of these rights and plead guilty because he was in fact guilty.39

To assure his understanding, the state trial court “start[ed] over with that question, and

again asked Temple, “Do you wish to waive all of your Constitutional rights?”40 Temple again

answered, “Yes. »41 He also answered “Yes,” to the Court’s next question, “And do you wish to

plead guilty because you have in truth and in fact committed these crimes?”42 Temple also

acknowledged that he had not been forced or coerced into pleading guilty.

Following this, the state trial court reviewed with Temple the specific terms of the plea

agreement. The Court also confirmed that Temple was satisfied with his counsel and his counsel’s

31Id. at pp. 12-13.

38W. atp. 13.

39M. atp. 14.

40M.

AlId. atpp. 14-15.

nId. atp. 15.

explanations of his rights.43 The State and appointed counsel then set forth the stipulation with

regard to the factual basis for the plea.44

Following acceptance of the pleas to the underlying charges, the Trial Court repeated this

exercise with respect to the multiple offender bill.45 The Court advised Temple that he had the

right to a hearing on the allegations, to have the State prove the allegations, and to remain silent at

that hearing. Temple expressed his understanding of those rights and his desire to waive those

rights. He admitted the allegations in the bill and that he was not coerced or forced to enter the

plea. 46

Contrary to Temple’s arguments, the record is eminently clear that the constitutional

requirements for a knowing and voluntary plea were fully met. Temple knew he was pleading

guilty to the charges of aggravated second degree battery and second degree kidnapping and the

multiple bill filed against him. He knew the sentence exposure and that the plea agreement would

result in concurrent sentences of no more than 60 years after the multiple offender enhancement.

He acknowledged that he understood the charges, the consequences of his plea, and made a free

waiver of his constitutional rights. He conceded several times that his reason for entering the plea

was because he was in fact guilty.

4iId. at pp. 15-16.

44Id. at p. 16.

45Id. atpp. 19-20.

46Id. at p. 20.

Considering the record as a whole, Temple’s guilty pleas were knowingly and voluntarily

entered with full the protections required under Supreme Court precedent. The state courts’ denial

of relief was not contrary to, or an unreasonable application of, federal law. Temple is not entitled

to relief on this issue.

VII.

Recommendation

For the foregoing reasons, it is RECOMMENDED that Temple’s petition for issuance of

a writ of habeas corpus filed pursuant to 28 U.S.C. § 2254 be DENIED and DISMISSED WITH

PREJUDICE.

A party’s failure to file written objections to the proposed findings, conclusions, and

recommendation in a magistrate judge’s report and recommendation within fourteen (14) days

after being served with a copy shall bar that party, except upon grounds of plain error, from

attacking on appeal the unobjected-to proposed factual findings and legal conclusions accepted by

the district court, provided that the party has been served with notice that such consequences will

result from a failure to object. Douglass v. United Servs. Auto. Assoc., 79 F.3d 1415, 1430 (5th

Cir. 1996).47

New Orleans, Louisiana, this 7th day of September, 2018.

S RO.

CHIEF UNITED STATES MAGIS

E JUDGE

47Douglass referenced the previously applicable ten-day period for the filing of objections. Effective

December 1, 2009, 28 U.S.C. § 636(b)(1) was amended to extend the period to fourteen days.

APPENDIX “ J”

RULING: U.S.

DISTRICT COURT

U.S. District Court - Eastern District of Louisiana

David Scott Temple 562616

Louisiana State Penitentiary

General Delivery

Angola, LA 70712

Case: 2:18-cv-01536 #10

20 pages.

Tue Jul 30 17:02:05 2019

UNITED STATES DISTPTr',T’ COURT

EASTERN DISTRICT OF LOUISIANA

DAVID TEMPLE

CIVIL ACTION

VERSUS

NO.

DARREL VANNOY

SECTION "B"(4)

18-1536

ORDER AND REASONS

Before

the

Court

are

the

Magistrate

Judge's

Report

and

Recommendation to dismiss petitioner David Temple's request for

habeas corpus relief (Rec. Doc. 8) and petitioner's objections to

the

report

and

recommendation

(Rec.

9) .

Doc.

For

the

reasons

discussed below,

IT IS ORDERED that petitioner's objections are OVERRULED;

IT IS FURTHER ORDERED that the Magistrate Judge's Report and

Recommendation is ADOPTED as the opinion of the court; and

IT IS FURTHER ORDERED that the petition for § 2254 habeas

relief is DISMISSED.

FACTUAL BACKGROUND AND PROCEDURAL HISTORY

David

currently

Angola,

Scott

incarcerated

Louisiana.

("petitioner")

Temple

See Rec.

the

Louisiana

Doc.

8 at

State

convicted

inmate

Penitentiary

On February 6,

petitioner was charged by a bill of information in St.

2015,

Tammany

Parish with one count of aggravated second degree battery and one

count of second degree kidnapping.

See id. On February 19, 2015,

petitioner entered a plea of not guilty to the charges. See id.

7\ 4-

and

4- K q

4- ^ -; -> 1

24,

2014,

C 4- ta 4- o

nf CinHcjH

petitioner

residence they shared,

*h r>

Th TC^^T ^

i-hat- hfifween November

imprisoned his

girlfriend

the

repeatedly inflicting physical abuse upon

her and refusing to allow her to leave, and that on November 22,

2014,

beat

the

victim with a

flashlight,

two metal

candle

holders, and his belt, fracturing her patella with a candle holder.

See Rec. Doc. 8 at 1-2. Petitioner also slammed the victim's head

into a hard floor before cutting her clothes off with a pocket

knife,

rendering

her

completely

naked.

See

id.

Afterwards,

petitioner dragged the victim by the hair outside and fastened her

to the back of his truck with a chain and dog collar.

Petitioner then drove the truck around an adjacent

See id.

field in a

"doughnut" fashion. See id. Petitioner later unfastened her, and

attempted to chase her in the field with the truck, See id. After

the two returned to their residence,

shower and clean herself,

petitioner made the victim

threatened to

kill both her and her

daughter, and explained in detail how he would. See id.

The next day, petitioner forced the victim to clean the house

effort

activity.

eliminate

any

sign

violence

criminal

See id. When a neighbor returned home on November 24,

2014, the victim sought and found assistance and refuge.

See id.

On November 25, 2014, petitioner was arrested in Washington Parish

pursuant to an arrest warrant. See id.

o +■

ir'

in ^-nh 1 2

9D1 S

Fpp id.

trial two officers testified, and pictures of the victim's injuries

were

presented.

See id.

12.

Shortly thereafter,

indicated that he wanted to plead guilty,

petitioner

and entered a guilty

plea to both counts and to a multiple bill filed by the state, See

id.

2.' The

trial

court

sentenced petitioner

concurrent

sentences of fifteen years in prison on count one and sixty years

in prison as

second

offender on count

two,

with the

latter

sentence to be served without benefit of probation or suspension

of sentence and without benefit of parole for the first two years.

See id. at 2-3.

Petitioner did not seek timely appeal of his conviction. See

id. at 3. On December 21,

2015, he submitted an application for

post-conviction relief to the state trial court, alleging that he

was denied his right to a direct appeal.

See id. The trial court

denied petitioner's application on February 22, 2016, finding that

he knowingly waived this right during the guilty plea colloquy.

See id. Petitioner did not seek review of this ruling. See id.

On March 30, 2016, petitioner submitted a second application

for post-conviction relief to the trial court, asserting:

(1) he

was denied effective assistance of counsel; and (2) that the trial

court abused its discretion by accepting his guilty pleas. See id.

The trial court denied relief, and held that petitioner had failed

to prove

ineffective assistance of counsel under

Strickland v.

c^ ^

u -

issue

the

*3 _ A

grounds

rT1V\Ci

that

rr\ur‘h

Honi orl

r'o ]

ief nn

repetitive

was

1- hf*

.qprnnri

his

prior

application, citing La. Code Crim. P. art. 930.4. See id. at 4.

The Louisiana First Circuit denied petitioner's related writ

on September 22, 2016. See id. It found that petitioner's plea and

waiver of his rights were both knowing and voluntary, and that his

ineffective

assistance

counsel

claim

was

waived

the

2018,

unconditional guilty plea. See id. Finally, on January 12,

the Louisiana Supreme Court denied petitioner's writ application,

holding that he failed to prove ineffective assistance of counsel

under the requirements set forth in Strickland,

and also that he

failed to meet his burden of proof on his second claim. See id. On

February 14

2018, petitioner submitted the instant federal habeas

petition, in which he asserted that:

(1) he received ineffective

assistance of counsel at trial; and (2) the state court abused its

discretion by accepting his guilty plea. See Rec. Doc. 1 at 4.

LAW AND FINDINGS

A. Standard of Review

The Antiterrorism and Effective Death Penalty Act of 1996

("AEDPA")

controls for purposes of this 28 U.S.C.

§ 2254 habeas

corpus petition. See Poree v. Collins, 866 F. 3d 235, 245 (5th Cir.

2017)

("Federal

prescribed

Act...");

habeas

the

proceedings

Antiterrorism