Answer To Petition For Habeas Corpus With Memo 8-7-14

UNITED STATES DISTRICT COURTWESTERN DISTRICT OF LOUISIANALAFAYETTE-OPELOUSAS DIVISION

JEREMY DWAYNE SMITHPetitioner CIVIL ACTION

vs. NO. 6:14CV00811

BURL CAIN, WARDEN SEC: ______LOUISIANA STATE PENITENTIARY

Respondent JUDGE RICHARD HAIKMAGISTRATE JUDGE C. MICHAEL

HILL

RESPONDENT’S ANSWER TO PETITION FOR HABEAS CORPUS

_______________________________FREDERICK L. WELTER, #23,360ASSISTANT DISTRICT ATTORNEY15 JUDICIAL DISTRICT-ACADIATH

PARISH COURTHOUSE, 3 FLOORRD

P.O. BOX 288CROWLEY, LOUISIANA 70527 (337) 788-8831Counsel for Respondent

NOW INTO COURT comes respondent herein, through the undersigned assistant District

Attorney, to answer Petitioner’s application for habeas corpus.

I.

Respondent denies the factual allegations and the legal validity of each and every one of the

issues raised in the present application for habeas corpus. A Memorandum of Law, submitted

herewith, expands upon the following summarized defenses and answers to each issue:

1) Issue 1 (claim that Petitioner’s trial counsel and appellate counsel were ineffective

throughout the trial and appeal) is not a proper claim for this habeas proceeding, in that Petitioner

did not raise this issue on his appeal, nor did he appeal this issue after a trial on his post conviction

relief allegations.

2) Issue 2 (claim that the Petitioner was denied due process because trial witnesses testified

during trial and referred to the defendant in that testimony, that a former U.S. Marine, the victim in

the case, testified that he recognized the pistol carried by the defendant as a 9mm, and the

ammunition was full metal jacket rounds, and the prosecutor made a closing argument to the jury

that defendant claims was prejudicial to him) is not a proper claim for this habeas proceeding, in that

Petitioner did not raise this issue on his appeal. In the alternative, if this Court finds that these

claims can properly be brought before this Court even though they were not raised on appeal, then

these claims are without merit, as the witnesses testified at trial without objection by trial counsel,

the victim was not an expert witness at trial but was allowed by the court to testify as to what he saw

and knew from his military experience about weapons and ammunition, and closing arguments are,

by definition, going to be prejudicial to the defendants, as the prosecutor argued to the jury that this

defendant committed the acts for which he was charged.

3) Issue 3 (claim that the sentence imposed in this case was excessive because Petitioner

claims that the trial court should have run his sentences for attempted second degree murder and

armed robbery concurrent) is not a proper claim for this habeas proceeding, in that Petitioner did not

raise this issue on his appeal. In the alternative, if this Court finds that this issue is properly before

it in this habeas proceeding, then this claim is without merit, as the trial court had the ability and

discretion to run the sentences consecutively in this case, and was proper in doing so.

4) Issue 4 (claim that the selection of the grand jury foreman somehow resulted in

discrimination against the defendant by way of race and gender) is also not a proper claim for this

habeas proceeding, in that Petitioner did not raise this issue on his appeal. In the alternative, if this

Court finds that this issue is properly before it in this habeas proceeding, then this claim is without

merit, as the grand jury members are picked randomly by the sheriff deputy from the clerk’s box of

potential jurors. In this case, since the grand jury foreperson was absent on the date the instant case

was presented to the grand jury, the state made a formal motion to the court for the appointment of

a temporary foreperson, and the court made such an appointment, based on the random order in

which the grand jurors were picked by the bailiff.

II.

Initially, the State informs the Court that, although Petitioner was represented by IDO counsel

throughout the state prosecution, he was appointed an IDO attorney for his appeal, then hired

separate counsel for his appeal and present counsel for the post conviction relief and habeas phases.

Petitioner’s Memorandum of Law is replete with statements that simply are not supported

by the record. For that reason, Respondent’s Memorandum of Law includes Respondent’s own

“Statement of the Case.” Also, in its Memorandum of Law, Respondent has provided citations to

the record whenever Respondent’s understanding of the record differs from that of Petitioner’s.

III.

Respondent is not satisfied that Petitioner has exhausted his state remedies. Petitioner did

timely file an appeal in this case, and the Third Circuit Court of Appeal affirmed his convictions.

Petitioner did not file any application for supervisory writ or writ of certiorari to the Louisiana

Supreme Court after the Third Circuit Court of Appeal affirmed his convictions. Petitioner did file

a timely Application for Post Conviction Relief, which after a trial, was denied by the trial court.

Petitioner erroneously appealed that denial of post conviction relief, and the Third Circuit Court of

Appeal dismissed that appeal, as it was not an appealable judgment. The Third Circuit granted

Petitioner thirty days from the date of that decision, December 28, 2011 to file a supervisory writ

application.

Petitioner failed to timely a supervisory writ application within thirty days of the decision by

the Third Circuit Court of Appeal dated December 28, 2011, in Docket No. 11-1371, which resulted

in his conviction becoming final under La.C.Cr.P. art 914. Petitioner did not file any application for

supervisory writ or writ of certiorari to the Louisiana Supreme Court after the Third Circuit Court

of Appeal dismissed his appeal of the denial of his post conviction relief, and after he failed to timely

file a proper supervisory writ application. Petitioner then filed the present Petition Under U.S.C.

2254 For Writ of Habeas Corpus By A Person In State Custody on April 21, 2014. Petitioner’s

failure to afford the state courts the opportunity to consider these new allegations subjects his entire

federal application to peremptory dismissal by this Honorable Court. Burns v. Estelle, 695 F.2d 847

(5 Cir. 1983). Since Petitioner has failed to file a timely application for supervisory writs on theth

trial court’s denial of his application for post conviction relief, it appears that Petitioner has waived

any further state remedies. Petitioner has not therefore exhausted his state remedies.

IV.

Respondent submits that Petitioner has not demonstrated that any of his claims presented

herein have been adjudicated in state court proceedings which (1) resulted in a decision that was

contrary to, or involved an unreasonable application of, clearly established Federal law, as

determined by the Supreme Court of the United States; or (2) resulted in a decision that was based

on an unreasonable determination of the facts in light of the evidence presented in the State court

proceeding.

V.

Respondent has also failed to, by clear and convincing evidence, rebut any factual

determination made by a state court and which is presumed to be correct in this proceeding.

VI.

Respondent submits that Petitioner has failed to observe the filing deadlines as required by

28 U.S.C. § 2244(d)(1), and therefore bar review of Petitioner’s claims.

VII.

The record of all proceedings in the trial court (State of Louisiana v. Jeremy Smith, 15th

Judicial District, Acadia Parish, Docket No. 65,845) has been included as an attachment to this

Answer, along with all briefs filed by Petitioner and the State in his appeals. In addition, Petitioner’s

Third Circuit Court of Appeal and Louisiana supreme court filings and judgments have been

included as attachments to this Answer.

VIII.

With this Answer, Respondent is filing the attachments as a volume of pleadings and

transcripts with numbered pages. It contains copies of trial court motions, court minutes, court

transcripts, and defendant’s pretrial and post trial motions and post conviction relief applications,

and the court rulings pertaining to all of them.

IX.

Respondent respectfully submits to this Honorable Court that none of the issues raised in this

application for habeas corpus relief has any validity, and that all may be disposed of by reference to

the record itself. Accordingly, it is respectfully urged that the application for habeas corpus be

denied without an evidentiary hearing.

__________________________________FREDERICK L. WELTER, #23,360ASSISTANT DISTRICT ATTORNEY15 JUDICIAL DISTRICT-ACADIATH



CERTIFICATE

I HEREBY CERTIFY that a copy of the above and foregoing instrument has this day

been forwarded to all parties and/or counsel of record by depositing a copy of same in the United

States Mail, postage prepaid and properly addressed.

Crowley, Louisiana, this August 11, 2014.

_________________________FREDERICK L. WELTERASSISTANT DISTRICT ATTORNEY

UNITED STATES DISTRICT COURTWESTERN DISTRICT OF LOUISIANALAFAYETTE-OPELOUSAS DIVISION

JEREMY DWAYNE SMITHPetitioner CIVIL ACTION

vs. NO. 6:14CV00811

BURL CAIN, WARDEN SEC: LOUISIANA STATE PENITENTIARY

Respondent JUDGE RICHARD HAIKMAGISTRATE JUDGE C. MICHAEL

HILL

RESPONDENT’S MEMORANDUM OF LAW

_______________________________FREDERICK L. WELTER, #23,360ASSISTANT DISTRICT ATTORNEY15 JUDICIAL DISTRICT-ACADIATH



I. TABLE OF CONTENTS

II. INDEX OF AUTHORITIES 9

III. STATEMENT OF THE CASE

1. Prior Proceedings 10

2. Facts of the case 12

IV. QUESTIONS OF LAW 13

V. ARGUMENT

1. ISSUE 1 (that Petitioner’s trial counsel and appellate counsel were 13

ineffective throughout the trial and appeal).

2. ISSUE 2 (claim that the Petitioner was denied due process because 16

trial witnesses testified during trial and referred to the defendant in that testimony,

that a former U.S. Marine, the victim in the case, testified that he recognized the

pistol carried by the defendant as a 9mm, and the ammunition was full metal

jacket rounds, and the prosecutor made a closing argument to the jury that

defendant claims was prejudicial to him).

3. ISSUE 3 (claim that the sentence imposed in this case was 23

excessive because Petitioner claims that the trial court should have

run his sentences for attempted second degree murder and armed

robbery concurrent).

4. ISSUE 4 (claim that the selection of the grand jury foreman somehow 24

resulted in discrimination against the defendant by way of race and gender).

VI. CONCLUSION 25

II. INDEX OF AUTHORITIES

Burns v. Estelle, 695 F.2d 847 (5 Cir. 1983) 4th

(State of Louisiana v. Jeremy Smith, 15 JDC, Acadia Parish, Docket No. 65,845 5th

State v. Jeremy Smith , 984 So.2d 238 (La.App. 3 Cir. 2008) 14rd

State v. Jeremy Smith, unpublished ruling, Dkt. No. 11-1371 (La.App. 3 Cir. 2011) 14rd

Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984) 20

State v. Fuller, 454 So.2d 119 (La. 1984) 20

State v. LaCaze, 824 So.2d 1063 (La. 2002) 20

State v. Brooks, 505 So.2d 714 (La. 1987) 20

State v. Howard, 283 So.2d 199 (1973) 24

State v. Bonnano, 384 So.2d 355 (La. 1980) 23

State v. Robicheaux, 865 So.2d 149 (La.App. 5 Cir. 2003) 24 th

State v. Gay, 830 So.2d 356 (La.App. 2 Cir. 2002) 24nd

State v. Pickett, 628 So.2d 1333 (La.App. 2d Cir.1993), writ denied, 94-0348 24(La.05/20/94), 637 So.2d 476

State v. Nelson, 467 So.2d 1159 (La.App. 2d Cir.1985) 24

State v. Williams, 445 So.2d 1171 (La.1984) 24

State v. Mills, 505 So.2d 933 (La.App. 2d Cir.), writ denied, 508 So.2d 65 (La.1987) 24

State ex rel. Roper v. Cain, 763 So.2d 1 (La.App. 1 Cir. 1999) 26st

Deloch v. Whitley, 684 So.2d 349 (La. 1996) 26

State v. Langley, 711 So.2d 651 (La. 1998) 26

Ellis v. Lynaugh, 873 F.2d 830, 840 (5 Cir. 1989) 27th

Statutes

La.R.S. 14:(27) 30.1 12

La.R.S. 14:64 12

28 U.S.C. § 2254 12

28 U.S.C. § 2244(d) 13

28 U.S.C.A. § 2249 13

La.Code Crim.P. Arts. 533(1) & 535 D 26

III. STATEMENT OF THE CASE

1. Prior Proceedings

Since the conviction was by a jury, which convicted Petitioner of attempted second degree

murder (La.R.S. 14:(27) 30.1) and armed robbery (La.R.S. 14:64), the State initially contends that

since none of Petitioner’s claims raised in this Petition have been properly appealed to any state

appellate court, Petitioner did not exhaust all of his state court remedies as required by federal habeas

corpus statutes.

28 U.S.C. § 2254 requires that the Petitioner exhaust all of his state remedies. § 2254 states:

(a) The Supreme Court, a Justice thereof, a circuit judge, or a district court shall entertain an application for a writ of habeas corpus in behalf of a person in custody pursuantto the judgment of a State court only on the ground that he is in custody in violation ofthe Constitution or laws or treaties of the United States.

(b)(1) An application for a writ of habeas corpus on behalf of a person in custodypursuant to the judgment of a State court shall not be granted unless it appears that–

(A) the applicant has exhausted the remedies available in the courts of theState;...

Therefore, since Petitioner failed to exhaust his state remedies by pursuing a writ application to the

Louisiana Supreme Court after his conviction was affirmed on appeal, and since Petitioner failed to

raise the issues with an appellate court that he is attempting to raise in this habeas petition for the

first time, in accordance with 28 U.S.C. § 2254, the present application should not be granted.

In addition, Petitioner filed an Application for Post Conviction Relief, and the trial court

denied that application after a post conviction relief trial. Petitioner attempted to appeal that denial

of Post Conviction Relief, but the appellate court dismissed the appeal and granted Petitioner an

additional thirty days (from December 28, 2011) to file an Application for Supervisory Relief.

Petitioner did not timely file such an Application. Instead Petitioner chose to file this Petition Under

U.S.C. § 2254 For Writ of Habeas Corpus By A Person In State Custody on April 21, 2014, over one

year after the time limit for filing had expired. Petitioner has filed the present petition here in federal

court, without exhausting his state remedies.

Petitioner’s conviction became final on January 27, 2012, and he failed to file the instant

Petition within one year of that date, as required by The Antiterrorism and Effective Death Penalty

Act of 1996 (“AEDPA”), 28 U.S.C. § 2244(d). Petitioner filed the instant Habeas Petition on April

21, 2014, over one year after his time to file such a case had prescribed. Therefore, Petitioner’s

instant Petition is not timely filed, and should be dismissed by this Court. 28 U.S.C.A. § 2249 also

requires that the Petitioner attach a certified copy of the Indictment, which Petitioner has failed to

include in his attachments. In the interest of timeliness and efficiency in providing the required

documents to this Court, the State attaches in its exhibits the Indictment in this matter.

Despite the objections raised above, which Respondent argues is more than sufficient to deny

Petitioner’s petition on the basis of non-exhaustion and timeliness alone, should the Court determine

that it desires to examine Petitioner’s claims, then Respondent herein urges this Court to deny the

petition, as it’s claims are without any basis in law or fact.

A. Acadia Parish Case

Petitioner, Jeremy Smith, was indicted by an Acadia Parish grand jury on July 23, 2004 for

the April 7, 2004 attempted second degree murder and armed robbery of an off duty U.S. Postal

Service mail carrier in Acadia Parish. Petitioner had been identified by the victim by name and by

picking him out of a photo lineup while at a Lafayette hospital prior to life saving surgery

Petitioner was arraigned and pled not guilty. He was present at arraignment with his defense

attorney, Clay Lejeune, and attorney Clay Lejeune continued to represent him throughout the case

up through his conviction on January 26, 2007. Petitioner was convicted by a petit jury, and was

sentenced by J. Krystian Earles on August 8, 2007 to serve forty (40) years at hard labor for the

attempted second degree murder and fifty (50) years on the armed robbery, to run consecutive with

each other. [TR at 199] The Acadia Parish clerk of court minutes and clerk of court’s official record

show that Petitioner filed a number motions and pleadings prior to his trial. [TR at 38 (Motion for

Discovery and Inspection); TR at 43 (Motion for Preliminary Examination); TR at 133 (Motion for

Clothing for Defendant); TR at 136 (Motion for Severance of Offenses); TR at 139 (Motion for

Election to Proceed); TR at 141 (Pretrial Motions); TR at 146 (Amending Motion for Discovery)].

Petitioner has filed numerous post-conviction motions [TR at 163 (Motion For New Trial);

TR at 187 (Motion to Reconsider Sentence); TR at 190 (Motion for Appeal)], an appeal, and a state

Application for Post Conviction Relief, which were denied. He did not filed a Writ Application with

the Louisiana Third Circuit Court of Appeal, despite being granted a thirty day period to do so after

his improperly filed writ application was dismissed, and he has filed no Applications for Supervisory

and/or Remedial Writs to the Louisiana Supreme Court. All of his filings and the court rulings have

been attached to this Answer. See State v. Jeremy Smith , 984 So.2d 238 (La.App. 3 Cir. 2008); rd

State v. Jeremy Smith, unpublished ruling, Dkt. No. 11-1371 (La.App. 3 Cir. 2011).rd

B. Appeal of Conviction

Petitioner hired attorney Daniel Stanford and filed a timely appeal. In his sole assignment

of error, appellate counsel Stanford argued the evidence adduced at trial was not sufficient to support

the conviction. The Third Circuit affirmed the conviction. State v. Jeremy Smith , 984 So.2d 238

(La.App. 3 Cir. 2008). Petitioner did not file any application for writ or supervisory relief with therd

Louisiana Supreme Court, and the conviction became final.

C. Post Conviction Relief

In April 2010, the Defendant filed in the trial court an application for post-conviction relief.

A hearing on the application was held on January 26, 2011. The trial court adjourned and continued

the hearing on May 4, 2011. The trial court denied the application after hearing extensive testimony

from defendant’s trial attorney, Clay Lejeune. Following the denial by the trial court, the

Defendant's attorney moved for an appeal. On May 19, 2011, the Defendant filed in the trial court

a “Petitioner's Notice of Appeal/Writ From Denial of Post–Conviction Relief Application.” The trial

court granted the appeal on March 26, 2011, and Defendant filed an Appeal with the Third Circuit

Court of Appeal. But on November 7, 2011, the Third Circuit Court of Appeal issued a rule to show

cause why the appeal in this case should not be dismissed as the judgment at issue was not an

appealable judgment.

The Defendant filed a brief with the Third Circuit in response to the rule in which he

acknowledged that the judgment is not an appealable judgment. The Third Circuit then dismissed

Defendant’s appeal motion, but granted Defendant an additional thirty (30) days to file a proper

application for supervisory writs. State v. Smith, Not Reported in So.3d, 2011 WL 6849641

(La.App. 3 Cir.), 2011-1371 (La.App. 3 Cir. 12/28/11). However, no such application was filed by

Defendant with the Third Circuit Court of Appeal, and no application for relief was subsequently

filed by Defendant with the Louisiana Supreme Court.

D. Habeas Filing

Defendant, after having his improper appeal dismissed by the Third Circuit Court of Appeal,

and well after the time delays had run to filed a timely habeas petition, filed the instant pleading here

in federal court on April 21, 2014. Respondents argue that Defendant/Petitioner failed to exhaust

his appellate remedies and has failed to file the present habeas proceeding within the time limits

prescribed by federal law. Petitioner’s conviction became final on January 27, 2012, and he failed

to file the instant Petition within one year of that date, as required by The Antiterrorism and Effective

Death Penalty Act of 1996 (“AEDPA”), 28 U.S.C. § 2244(d). Therefore, Petitioner’s instant Petition

is not timely filed, and should be dismissed by this Court. Petitioner has also failed to exhaust his

state court remedies as required by 28 U.S.C. § 2254, which would have allowed the state courts a

fair opportunity to review the case and grant him any relief that he may have been entitled to. For

these reasons, Respondents argue that the instant Petition should be dismissed by this Court.

2. Procedural Facts of the Case

Petitioner was indicted by an Acadia Parish grand jury on July 23, 2004, for Attempted

Second Degree Murder of Thad Guidry [La.R.S. 14:27 (30.1)] and Armed Robbery [La.R.S. 14:64].

He was arraigned on August 11, 2004, and was represented from that date through trial by his

attorney, Clay Lejeune. Petitioner’s attorney filed numerous motions, which came before the court

on various dates, many of which were granted. Petitioner filed a pro se Motion to Quash (alleging

he was not timely prosecuted and was did not receive a trial within the time limitations under

Louisiana law) which was heard on August 23, 2006 by the Court, and which was denied.

Additional pretrial motions were heard by the Court on November 14, 2006, and trial was set for

January 22, 2007. Petitioner filed additional motions which were heard on January 23, 2007.

Specifically, Petitioner had subpoenaed a witness, Dante Williams, who had been personally served

for trial but had not appeared. Petitioner then moved for that witness to be brought by law

enforcement to court, which the Court ordered. The State had been unable to locate and talk to

Dante Williams since the date of the offense, as his name had come up as a friend of the defendant

and someone who may have some knowledge of the defendant’s whereabouts on the date of the

offense. Williams was located and brought before the Court, and the Court ordered him held by law

enforcement throughout the trial.

Trial commenced, and evidence was introduced in the form of testimony of various

witnesses, including the victim in the case, which showed that the defendant had asked the victim

for a ride to a place outside of Rayne where the defendant’s friends were supposed to be fishing. At

some point on a secluded gravel road, the defendant asked the victim to stop so the defendant could

urinate, and the victim complied. When the defendant returned to the car, he was pointing a 9mm

pistol at the victim, telling the victim to give him the keys and get in the trunk. When the victim

refused, the defendant shot him multiple times in the upper chest, left him to die in the ditch, and

drove off in the victim’s car.

The victim was able to tell law enforcement and EMS personnel who the shooter was, as he

knew him by his nickname “Fice”, and had delivered mail to his house. Until the date of trial, the

State had not been able to ascertain a motive for the shooting and armed robbery, other than that the

defendant had wanted the victim’s car. However, Dante Williams testified at trial that on the date

of the shooting, he had been at his relative’s house in Houston, and the defendant had made plans

to come visit him in Houston. The defendant had planned to ride the bus to Houston, but when he

called Dante Williams from somewhere on the interstate between Rayne and Houston, defendant told

Williams that he was not on the bus, but was driving a vehicle.

The defendant was convicted by the jury on both counts, and was sentenced on August 8,

2007 to serve forty (40) years at hard labor for the attempted second degree murder and fifty (50)

years on the armed robbery, to run consecutive with each other. Defendant appealed, and in his sole

assignment of error, appellate counsel Stanford argued the evidence adduced at trial was not

sufficient to support the conviction. The Third Circuit Court of Appeal affirmed the conviction.

State v. Smith, 984 So.2d 238 (La.App. 3 Cir. 2008). rd

Petitioner has now filed the instant federal habeas corpus case, with four claims:

1) Issue 1 (claim that Petitioner’s trial counsel and appellate counsel were ineffective

throughout the trial and appeal) is not a proper claim for this habeas proceeding, in that Petitioner

did not raise this issue on his appeal, nor did he appeal this issue after a trial on his post conviction

relief allegations. In addition, Petitioner did not file this claim within the time limitations set forth

in 28 U.S.C. § 2244(d).

2) Issue 2 (claim that the Petitioner was denied due process because trial witnesses testified

during trial and referred to the defendant in that testimony, that a former U.S. Marine, the victim in

the case, testified that he recognized the pistol carried by the defendant as a 9mm, and the

ammunition was full metal jacket rounds, and the prosecutor made a closing argument to the jury

that defendant claims was prejudicial to him) is not a proper claim for this habeas proceeding, in that

Petitioner did not raise this issue on his appeal. In addition, Petitioner did not file this claim within

the time limitations set forth in 28 U.S.C. § 2244(d). In the alternative, if this Court finds that these

claims can properly be brought before this Court even though they were not raised on appeal and are

untimely, then these claims are without merit, as the witnesses testified at trial without objection by

trial counsel, the victim was not an expert witness at trial but was allowed by the court to testify as

to what he saw and knew from his military experience about weapons and ammunition, and closing

arguments are, by definition, going to be prejudicial to the defendants, as the prosecutor argued to

the jury that this defendant committed the acts for which he was charged.

3) Issue 3 (claim that the sentence imposed in this case was excessive because Petitioner

claims that the trial court should have run his sentences for attempted second degree murder and

armed robbery concurrent) is not a proper claim for this habeas proceeding, in that Petitioner did not

raise this issue on his appeal. In addition, Petitioner did not file this claim within the time limitations

set forth in 28 U.S.C. § 2244(d). In the alternative, if this Court finds that this issue is properly

before it in this habeas proceeding, then this claim is without merit, as the trial court had the ability

and discretion to run the sentences consecutively in this case, and was proper in doing so.

4) Issue 4 (claim that the selection of the grand jury foreman somehow resulted in

discrimination against the defendant by way of race and gender) is also not a proper claim for this

habeas proceeding, in that Petitioner did not raise this issue on his appeal. In addition, Petitioner did

not file this claim within the time limitations set forth in 28 U.S.C. § 2244(d). In the alternative, if

this Court finds that this issue is properly before it in this habeas proceeding, then this claim is

without merit, as the grand jury members are picked randomly by the sheriff deputy from the clerk’s

box of potential jurors. In this case, since the grand jury foreperson was absent on the date the

instant case was presented to the grand jury, the state made a formal motion to the court for the

appointment of a temporary foreperson, and the court made such an appointment. The court

appointed the next grand juror present that date, based on the random order they were picked when

the grand jury session began in March of 2004.

IV. QUESTIONS OF LAW

1. Were Petitioner’s trial counsel and initial appellate counsel ineffective throughout thetrial and appeal, when they filed numerous motions and fought valiantly at trial fora acquittal, then filed a timely appeal with the proper court of appeal?

2. Was Petitioner’s denied due process because trial witnesses testified during trial and

referred to the defendant in that testimony, that a former U.S. Marine, the victim inthe case, testified that he recognized the pistol carried by the defendant as a 9mm,and the ammunition was full metal jacket rounds, and the prosecutor made a closingargument to the jury that defendant claims was prejudicial to him?

3. Was the sentence imposed in this case excessive because Petitioner claims that the trialcourt should have run his sentences for attempted second degree murder and armedrobbery concurrent?

4. Did the selection of the grand jury foreperson somehow result in discrimination againstthe defendant by way of race and gender?

V. ARGUMENT

1. ISSUE 1 (Petitioner’s trial counsel and initial appellate counsel were not ineffectivethroughout the trial and appeal, when they filed numerous motions and foughtvaliantly at trial for a acquittal, then filed a timely appeal with the proper courtof appeal).

In order to prevail on an ineffective assistance of counsel claim, defendant must initially

show a deficient performance by his attorney, with errors so serious that the attorney was not

functioning as “counsel” guaranteed by the Sixth Amendment. Second, the defendant must show

that he was prejudiced as a result of his attorney’s deficient performance. Strickland v. Washington,

466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); State v. Fuller, 454 So.2d 119 (La. 1984).

The defendant is not guaranteed “errorless counsel judged ineffective by hindsight, but counsel

reasonably likely to render effective assistance. Judicial scrutiny must by highly deferential and

claims of ineffective assistance are to be assessed on the facts of the particular case as seen from the

counsel’s perspective at the time, hence, courts must indulge a strong presumption that counsel’s

conduct falls within the wide range of reasonable professional assistance.” State v. LaCaze, 824

So.2d 1063 (La. 2002).

The Louisiana Supreme Court, in State v. Brooks, 505 So.2d 714 (La. 1987) stated that

“hindsight is not the proper perspective for judging the competence of counsel’s trial decisions.

Neither may an attorney’s level of representation be determined by whether a particular strategy is

successful.” Brooks, supra, at 724. Defendant has claimed that his counsel could have done several

things differently just prior to trial and at trial. First, in hindsight, defendant claims that his trial

attorney failed to object to trial witnesses’ testimony in which the witnesses described the defendant

as the “shooter”, the “killer”, the “guy who shot somebody”.

Defendant does not reference the pages of the record in which his allegedly prejudicial

testimony appears, so it is difficult for Respondents to respond to this allegation. In addition,

defendant claims that his trial attorney was ineffective for failing to object when the victim described

the weapon and ammunition of the defendant, and that his appellate attorney was ineffective for

failing to raise additional issues on appeal. The weakness in this argument is that defense counsel

very likely had a particular strategy in dealing with the victim’s prior military service in this case,

and not objecting to the victim’s testimony actually may have bolstered that strategy. Defendant’s

attorney likely had a trial strategy that called for avoiding bringing any more credibility to the

victim’s testimony regarding weapon and ammunition type, especially when the victim testified to

his military experience with the weapon and ammunition.

As to the claim that closing argument remarks should have been objected to by defense

counsel, closing arguments are by definition going to prejudice the defendant, and if the defendant

is referred to as a “shooter” or a “killer” because the evidence presented at trial showed that he shot

someone multiple times in the chest to take a car, then those words are truthful, not prejudicial. It

appears that Petitioner complains about closing argument statements such as “He never said anyone

else did it. He identified the shooter every time as Fice from Rayne.” TR at 600. Respondent has

reviewed the voluminous record but has been unable to locate any instances where the Petitioner was

referred to as “killer” by the State. As to Petitioner’s initial appellate counsel’s effectiveness, he

filed a timely appeal with an issue that he deemed appealable, and was able to get that issue properly

before the appellate court for review. Clearly, attorney Daniel Stanford knew the law in Louisiana

and was able to timely file a proper appeal and was not ineffective.

Under Brooks, supra, defendant’s counsel’s trial strategies should not be viewed in hindsight

to attempt to determine whether defendant was denied effective assistance of counsel. This strategy

may have been as a result of defendant’s telling his trial attorney that he had nothing to do with the

shooting, right up until the trial began, when he told his attorney that he had been involved, but that

someone else had shot the victim. The defendant has not shown a deficient performance by his

attorney, with errors so serious that the attorney was not functioning as “counsel” guaranteed by the

Sixth Amendment. Therefore, defendant has not successfully shown that he has met the first prong

of the Strickland test, and therefore did not have ineffective assistance of counsel. Defendant also

has not met the second Strickland prong- that he was prejudiced by his counsel’s decisions.

Defendant’s attorney, Mr. Clay Lejeune, provided an excellent defense throughout the case,

first by filing discovery and other preliminary motions, then by filing effective pre-trial motions,

some of which were granted by the court. Defendant’s counsel cross examined all of the State’s

witnesses, and was effective enough to keep the sentence for armed robbery to only 50 years, instead

of the maximum of 99 years, and the sentence for attempted second degree murder to only 40 years.

Without such a skilled defense attorney, Defendant could have been sentenced to over 148 years in

prison, and would not have had as fair a trial.

2. ISSUE 2 (Petitioner was not denied due process because trial witnesses testifiedduring trial and referred to the defendant in that testimony, when a former U.S.

Marine, the victim in the case, testified that he recognized the pistol carried bythe defendant as a 9mm, and the ammunition was full metal jacket rounds, andthe prosecutor made a closing argument to the jury that defendant claims wasprejudicial to him, in that references were made to defense witnesses who hadnot testified, and the defendant was referred to as the “shooter”, etc.)

Respondents reurge their objections as to timeliness and failure to exhaust state remedies,

which should bar this Petition by Petitioner Smith. However, Respondents note that the trial court

was not faced with objections by defense counsel to any of the above claims by Petitioner at the trial

of this case, and trial strategy by defense counsel is not to be second guessed by an appellate court

in an appeal argument for ineffective assistance of counsel. These witness statements were not

objected to at trial, were not appeal issues, and therefore have never been considered in this case

prior to this habeas proceeding. But even if there had been a defense objection, a witness with prior

military experience, testifying as to the type and caliber of a pistol and ammunition that was the main

service weapon and ammunition while he served in the USMC, was proper and would not have

survived an objection. It does not take an expert to testify to this type of issue- experience and

training alone can allow a witness to testify to this issue. As to closing arguments, again no

objection was made at trial, the issue was not raised on appeal, and as to an ineffectiveness claim,

it is likely that defense counsel did not want to bring any attention to the statements in the closing,

as any objection by him would likely have been denied, and the jury would have paid them even

more attention. Therefore, the State contends that this claim by Petitioner should be denied.

3. ISSUE 3 (Petitioner’s sentence in this case was not excessive, and the judge had theability and the discretion to run these sentences for attempted second degreemurder and armed robbery consecutively.)


which should bar this Petition by Petitioner Smith. However, Respondents note that the Louisiana

attempted second degree murder statute, La.R.S. 14:27 (30.1), provides that Defendant could have

been sentenced to one half the maximum of life, or 50 years at hard labor. For the armed robbery,

La.R.S. 14:64, the Defendant could have been sentenced to 99 years at hard labor. The trial judge

is given wide discretion in sentencing, and absent manifest abuse of discretion, a sentence imposed

within the statutory limits will not be deemed excessive. State v. Howard, 283 So.2d 199 (1973).

The court, to find a sentence excessive, must find that the “penalty is so grossly disproportionate to

the severity of the crime as to shock our sense of justice or that the sentence makes no measurable

contribution to acceptable penal goals and, therefore, is nothing more than needless imposition of

pain and suffering.” State v. Bonnano, 384 So.2d 355 (La. 1980).

The trial judge in this case sentenced the defendant to 60.4% of the maximum number of

years allowed by the statutes. However, prior to sentencing the defendant, the trial judge examined

the presentence investigation report, and heard from the victim and defendant’s attorney. The

defendant himself chose not to testify at the sentencing hearing. The trial judge examined a number

of aggravating and mitigating factors present in this case, and the State contends that the trial judge

determined that the seriousness of the offense, and the fact that the defendant used actual violence

in the commission of the offense, were overriding aggravating factors.

A Pre-Sentence Investigation was reviewed by the trial judge prior to the sentencing hearing

on August 8, 2007. The trial judge in this case stated for the record that he had considered the

aggravating and mitigating factors involved in the case, since he had presided over the trial. The

judge considered the PSI, and the aggravating and mitigating factors of La.C.Cr.P. Art. 894.1.

In a case with similar sentencing considerations, the manager of a Grand Isle motel was

approached by the defendant, and a struggle ensued. The defendant’s gun went off near her head,

and she was able to escape and call police. The defendant was convicted of attempted armed robbery

and attempted second degree murder, and sentenced to 49 1/2 years for attempted armed robbery and

sentence of 50 years for attempted second degree murder, to be served concurrently. State v.

Robicheaux, 865 So.2d 149 (La.App. 5 Cir. 2003). Even though it was the statutory maximum, theth

appellate court held that the sentence was not excessive.

In another case that is strikingly similar to the instant one, a defendant was convicted of

attempted second degree murder and armed robbery, and was sentenced to 99 years at hard labor for

armed robbery and 50 years for attempted second degree murder, to be served consecutively. The

appellate court stated that the maximum sentence was not excessive, as the defendant showed no

remorse for robbing and shooting the 67-year-old victim, attempting to shoot her a second time, and

then leaving her for dead as he sought to steal her car. State v. Gay, 830 So.2d 356 (La.App. 2 Cir.nd

2002). That court noted:

“Concurrent sentences arising out of a single course of conduct are not mandatory. State v.Pickett, 628 So.2d 1333 (La.App. 2d Cir.1993), writ denied, 94-0348 (La.05/20/94), 637So.2d 476; State v. Nelson, 467 So.2d 1159 (La.App. 2d Cir.1985). Nor are consecutivesentences under those circumstances necessarily excessive. Ortego, supra; State v. Williams,445 So.2d 1171 (La.1984); State v. Mills, 505 So.2d 933 (La.App. 2d Cir.), writ denied, 508So.2d 65 (La.1987). In imposing the chosen sentence, the trial court noted the victim's age,Gay's lack of remorse and the victim's impact statement which indicated that the victim isrequired to take medication since this incident and that for quite some time was afraid toleave her home. Additionally, the court was obviously impressed by the nature andviciousness of the attack and Gay's disregard for the life and property of others. We findthese factors more than adequate to justify the imposition of consecutive sentences in this*368 case and amply reflect the court's reasons for the consecutive terms.” State v. Gay,supra, at 367-368.

The State argues that the sentence imposed in this case was fair and was not excessive, given

the fact that the defendant was indicted for attempted second degree murder and armed robbery, went

to trial and the jury returned a guilty verdict on both counts. Considering the testimony of the victim

that he was shot multiple times in the chest and upper body and left for dead on a country road in a

rural parish while the defendant stole his car, the State argues that this was a very serious crime. The

defendant never showed remorse or took responsibility for this crime. The sentence imposed by the

trial court was within the statutory range, and is not grossly disproportionate or shocking in light of

the defendant’s extensive criminal record. This consecutive sentence, considering the needless fear

and anxiety caused by the defendant’s shooting of the victim in this case, is not excessive.

Therefore, defendant’s sentence is not excessive as he claims, nor is the consecutive sentence

ordered by the trial judge excessive.

4. ISSUE 4 (claim that the selection of the grand jury foreman somehow resulted indiscrimination against the defendant by way of race and gender)


which should bar this Petition by Petitioner Smith. However, Respondent notes the following if the

Court desires to examine the issue. The grand jury was empaneled for the spring term of 2004, the

foreman (Norma Washington) was the first person picked by the bailiff from the potential juror box.

The second grand juror was Nathaniel Harmon, and the third was Nelda Turner. When the grand

jury convened on July 23, 2004 to hear the present case, the foreman was not present, so the State

motioned the presiding judge to appoint another foreman, and presiding judge did so. By that date,

Nathaniel Harmon had moved out of state and was not present, so the presiding judge appointed as

foreman Nelda Turner, the next person who had been randomly picked from the box during

empaneling. Nelda Turner signed the indictment on the Petitioner. In the clerk’s jury system, the

records of the clerkwill say name, address, ward and precinct, and date of birth. Respondent does

not have personal recollection of race or gender of either of the grand jurors (Norma Washington or

Nelda Turner), although from their names, it is likely they are both women.

In State ex rel. Roper v. Cain, 763 So.2d 1 (La.App. 1 Cir. 1999), the appellate courtst

examined whether a complaint regarding the selection of grand jury foreman could be made for the

first time at the appellate level, without the issue being preserved for appeal by a trial court motion

to quash. That court stated:

“The district court in the instant case determined relator's complaint regarding the selectionof the grand jury foreman was not preserved for review because relator did not file a pretrialmotion to quash. An equal protection claim based upon discriminatory selection of the grandjury foreman is barred if the defendant fails to file a pretrial motion to quash. La.CodeCrim.P. arts. 533(1) & 535 D; Deloch v. Whitley, 96-1901 (La.11/22/96), 684 So.2d 349. In*5 State v. Langley, 95-1489 (La.6/19/98), 711 So.2d 651, 675 (on rehearing), the LouisianaSupreme Court (citing Campbell v. Louisiana) remanded a case for an evidentiary hearingon the defendant's allegation that the foreperson of the grand jury was selected in anintentionally discriminatory manner. In doing so, the court indicated the issue had been“properly raised before trial.” In this matter presently before the court, unlike the defendantsin Campbell and Langley, relator did not preserve the issue for review.” State ex rel. Roperv. Cain, supra at 4-5.

In this case, Petitioner did not file a pretrial motion to quash based on any grand jury foreman

selection process to preserve the issue for appeal, nor did Petitioner raise that issue in his appeal (nor

did he file any application for supervisory relief with the Louisiana Supreme Court), in his

application for post conviction relief, nor did he even appeal his denial of post conviction relief (or

file any application for supervisory relief with the Louisiana Supreme Court). Therefore, he did

not preserve the issue for review.

Respondent can see no way that the temporary assignment of the next picked and present

grand juror to act as foreman in any way discriminated against him by way of race or gender.

Respondent respectfully urges this Court to deny Petitioner’s claim.

VI. Conclusion

Respondent respectfully submits that it has demonstrated that all of Petitioner’s claims are

either lacking in merit or procedurally barred from federal review or both. Since all of the claims

may be decided upon the record itself, no evidentiary hearing is warranted. Ellis v. Lynaugh, 873

F.2d 830, 840 (5 Cir. 1989). Accordingly, it is respectfully submitted that this application forth

habeas corpus should be denied.

__________________________________FREDERICK L. WELTER, #23,360ASSISTANT DISTRICT ATTORNEY15 JUDICIAL DISTRICT-ACADIATH



CERTIFICATE

I HEREBY CERTIFY that a copy of the above and foregoing instrument has this day

been forwarded to all parties and/or counsel of record by depositing a copy of same in the United

States Mail, postage prepaid and properly addressed.

Crowley, Louisiana, this August 11, 2014.

_________________________FREDERICK L. WELTERASSISTANT DISTRICT ATTORNEY

Attachments:

A Defendant’s Appeal Brief regarding TrialB State’s Appeal Brief regarding TrialC Third Circuit Opinion on Defendant’s Appeal regarding TrialD Defendant’s Appeal Brief regarding denial of Post Conviction Relief E Third Circuit Opinion on Defendant’s Appeal regarding Post Conviction Relief F Transcript of Trial and Pretrial Issues, and Pleadings and Memoranda filedG Transcript of Post Conviction Trial

Answer To Petition For Habeas Corpus With Memo 8-7-14

Documents

Transcript of Answer To Petition For Habeas Corpus With Memo 8-7-14