Thomas v. Smith et al

Filing 12

ORDER ADOPTING REPORT AND RECOMMENDATIONS 10 and denying certificate of appealability.. Signed by Judge Sarah S. Vance on 11/24/15.(jjs)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
JAMES THOMAS

CIVIL ACTION

VERSUS

NO: 14-3005

SETH SMITH, WARDEN

SECTION: R(2)

ORDER AND REASONS
Pro se litigant James Thomas petitions the Court for federal habeas
corpus relief under 28 U.S.C. § 2554.1 The Magistrate Judge recommends that
Thomas’s petition be dismissed with prejudice.2 Thomas objects to the
Magistrate Judge’s Report and Recommendation (R&R) on seven grounds.3
Having reviewed de novo the complaint, the record, the applicable law, the
Magistrate Judge’s R&R, and Thomas’s objections to the R&R, the Court
approves the R&R with the following discussion.
On December 16, 2004, a state court jury found Thomas guilty of one
count of vehicular homicide.4 Months earlier, on February 14, 2004, Thomas
was driving while intoxicated, with his two minor children as passengers, on
Louisiana Highway 1 in Lafourche Parish, Louisiana. See State v. Thomas,
1

R. Doc. 5.

2

R. Doc. 10.

3

R. Doc. 11.

4

R. Doc. 10 at 3 (citing State Rec. Vol. 2 of 4, Jury Verdict,

12/16/04).

938 So. 2d 168, 171 (La. App. 1 Cir. 2006).

The highway was under

construction, and Thomas drove off of the road and hit a pole before his car
flipped and landed in a small body of water. See id. at 171-72. Thomas’s
daughter died as a result of the collision. Id. at 171. At 10:50 p.m. that night,
approximately two hours after the collision, Thomas’s blood-alcohol
concentration was determined to be 0.24 grams percent–approximately three
times the legal limit. Id.
At the time of Thomas’s conviction, Louisiana Revised Statute § 14:32.1
defined “vehicular homicide” as “the killing of a human being caused
proximately or caused directly by an offender engaged in the operation of, or
in actual physical control of, any motor vehicle [when] [t]he operator is under
the influence of alcoholic beverages [or] [t]he operator’s blood alcohol
concentration is 0.08 percent or more . . . .” La. Rev. Stat. § 14:32.1(A)(1)-(2)
(2004) (emphasis added). Importantly, under Louisiana law, to be guilty of
vehicular homicide, a person’s conduct need not be the sole cause of the
victim’s death. State v. Martin, 539 So. 2d 1235, 1238 (La. 1989). A person’s
conduct need only be a “contributing or concurrent cause” of the collision that
resulted in death, and “negligence on the part of other parties w[ill] not excuse
the defendant if he himself were guilty of criminal negligence.” Id. (quoting
State v. Kaufman, 30 So. 2d 337, 346 (1947)). In other words, as applied to
this case, Thomas’s driving while intoxicated need only have contributed to the
2

collision that killed his daughter to support the jury’s verdict that Thomas is
guilty of vehicular homicide. See State ex rel. R.V., 82 So.3d 402, 410 (La.
2011).
Following Thomas’s conviction, the State filed a multiple offender bill
under a different case number than the substantive charges to enhance
Thomas’s sentence.5 See State v. Thomas, 938 So. 2d 168, 171 (La. App. 1 Cir.
2006). The Louisiana trial court adjudicated Thomas a multiple offender and
sentenced him to forty years imprisonment. Id. Thomas directly appealed his
conviction and sentence, arguing among other things, that the evidence was
insufficient to support the conviction for vehicular homicide. On June 9,
2006, the Louisiana First Circuit Court of Appeal affirmed Thomas’s
conviction, but reversed his multiple offender adjudication and vacated the
sentence. See id. On April 27, 2007, the Louisiana Supreme Court denied
Thomas’s writ application for further review, and thus finalized Thomas’s
conviction for vehicular homicide. State v. Thomas, 955 So.2d 683 (La. 2007).
Judicial proceedings surrounding Thomas’s multiple offender status
continued, however.

After a number of sentencings, appeals, and re-

sentencings, Thomas finally was sentenced to thirty-five years imprisonment

5

Id. at 4 (citing State Rec. Vol. 2 of 4, Motion to Reconsider
Sentence 5/25/05, and Trial Court Order, 5/26/06).
3

on December 28, 2012.6 See State v. Thomas, 112 So.3d 875 (La. App. 1 Cir.
2012).
On September 10, 2008, while awaiting re-sentencing on the multiple
offender bill, Thomas filed his first application for post-conviction relief in
Louisiana state court. He asserted the following grounds for relief: (1) the
prosecution suppressed material evidence of a construction contract involving
the highway where the accident occurred; (2) in the course of a wrongful death
suit against the state, Thomas discovered new evidence that the highway
lacked proper lighting, which may have contributed to his accident and would
have impeached testimony by a state witness at trial; (3) Thomas discovered
new evidence of photographs of the construction area that would have
impeached testimony by a state witness at trial; (4) the prosecution suppressed
material evidence of photographs and other evidence favorable to the defense;
(5) the prosecution used false evidence and testimony regarding accident
reconstruction at Thomas’s criminal trial; (6) Thomas’s trial counsel provided
ineffective assistance because he failed to investigate properly evidence
disclosed by the State and to interview witnesses; (7) Thomas’s trial counsel
provided ineffective assistance because he failed to familiarize himself with the
scientific evidence and to hire an expert witness; and (8) Thomas did not

6

Id. at 4-8.
4

receive a fair trial because the case received publicity prejudicial to him and
the court failed to recuse certain jurors for cause. On April 27, 2009, the
Louisiana trial court dismissed Thomas’s application for post-conviction relief
as premature because the court had not finally sentenced Thomas on the
multiple offender bill.7
After he was finally sentenced on December 28, 2012, Thomas filed
another application for post-conviction relief in Louisiana state court on
February 15, 2013, over five years after the Louisiana Supreme Court finalized
Thomas’s conviction.8 Thomas asserted the same grounds for relief as he had
in his original application, plus the following grounds of error: (1) the
prosecution should have filed the multiple offender bill under the same case
number as the substantive charges; (2) the prosecution suppressed material
evidence of a construction contract involving the highway where the accident
occurred; and (3) the prosecution used false evidence and testimony regarding
accident reconstruction at trial and allowed other parties to alter the crime
scene through post-accident repairs.9

7

Id. at 6 (citing State Rec. Vol. 4 of 5, Trial Court Judgment,
4/27/09); see also R. Doc. 11-1 at 3, 9-10.
8

Id. at 8.

9

Id. at 9.
5

The state trial court denied relief on the merits of Thomas’s claims on
July 19, 2013.10 On appeal, the Louisiana First Circuit denied Thomas’s writ
application without stated reasons.11

On further appeal, the Louisiana

Supreme court denied Thomas’s writ application as untimely under Louisiana
Code Criminal Procedure article 930.8, which provides a two-year prescriptive
period for post-conviction relief applications, and State ex rel. Glover v. State,
660 So. 2d 1189 (La. 1995), which enforced on appeal the prescriptive period
in article 930.8 even though the lower court had addressed the merits of the
petitioner’s application. See State ex rel. Thomas v. State, 149 So. 3d 790 (La.
2014).
Thomas then filed an application for post-conviction relief in this Court
on January 26, 2015, alleging the same grounds of error that he asserted in
state court.12

To summarize, Thomas argues that it was error for the

prosecution to file the multiple offender bill under a different case number
than the substantive charges against him.13 Thomas argues that this error led
to the Louisiana Supreme Court dismissing his state court application for post-

10

R. Doc. 5-2 at 7-14.

11

Id. at 19.

12

R. Doc. 5.

13

R. Doc. 5-1 at 9.
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conviction relief as untimely.14 Thomas also argues that during the course of
his wrongful death suit against the state, he uncovered “new evidence” that the
prosecution suppressed during his criminal trial. This new evidence includes
Entergy’s interrogatory response that there were no street lights along
Louisiana Highway 1 where the accident occurred;15 colored photographs of
the accident scene, taken three days later, which illustrate that Barriere
Construction Co., the construction company working on the roadway, erected
warning construction signs after the accident;16 and a contract between the
Louisiana Department of Transportation and Development and Barriere
Construction, which requires both contracting parties to erect certain signage
warning drivers about the construction area;17 Thomas also argues that his
criminal trial counsel rendered ineffective assistance because he failed to
investigate adequately the facts of the case and to uncover much of this new,
allegedly exculpatory evidence.18 Finally, Thomas argues that the prosecutors
in his criminal case suppressed this exculpatory evidence and relied on false

14

Id.

15

See R. Doc. 5-1 at 11-13.

16

See id. at 15-19.

17

See id. at 22-28.

18

See id. at 30-72.
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testimony in violation of Thomas’s due process rights, as articulated in Brady
v. Maryland, 373 U.S. 83 (1963).19
In the Report and Recommendation, the Magistrate Judge raised the
issue of procedural default, noting that the Louisiana Supreme Court rejected
Thomas’s petition as untimely. As noted, Thomas filed his habeas petition in
state court on February 15, 2012, over five years after the Louisiana Supreme
Court finalized his conviction, but only a few months after he was finally
sentenced as a multiple offender.20 The Magistrate Judge found that Thomas
“failed to present any cause, other than his own delay,” for his failure to pursue
his habeas claims in a timely manner.21 In his objections to the R&R, Thomas
argues the Louisiana trial court judge caused him to file his habeas petition
untimely in state court.

As Thomas points out, the state court judge

specifically told him that any habeas petition filed before the court finalized his
multiple offender sentence would be premature.22
Regardless of Thomas’s cause for failing to timely file his habeas petition
in state court, Thomas cannot show any resulting prejudice. To overcome a
procedural default, a petitioner must show not only cause excusing the
19

See id. at 74-112.

20

R. Doc. 10 at 8.

21

Id. at 19.

22

R. Doc. 11 at 4-7 (Objections Nos. 1-2).
8

procedural default, but also “actual prejudice as a result of the alleged violation
of federal law.” Maples v. Thomas, 132 S. Ct. 912, 922 (2012) (quoting
Coleman v. Thompson, 501 U.S. 722, 750 (1991)). To demonstrate prejudice,
the petitioner must show that “there is a reasonable probability that the result
fo the trial would have been different.” Strickler v. Greene, 527 U.S. 263, 289
(1999).
Thomas cannot show prejudice to overcome his procedural default
because none of his stated grounds for relief go to the heart of his vehicular
homicide conviction, which is Thomas’s driving while intoxicated, with a
blood-alcohol concentration of 0.24 grams percent. This evidence remains
uncontroverted. In his habeas petition, Thomas attempts to blame the
Louisiana Department of Transportation Development, Barriere Construction,
and Entergy for the condition of the highway and the lack of lighting on the
road. Thomas argues that poor condition of the road and poor lighting caused
the collision. Even if the allegedly negligent conduct of any of these parties
contributed to the collision, this does not excuse Thomas’s own criminal
negligence. See Louisiana v. Martin, 539 So. 2d 1235, 1238 (La. 1989). As
noted, to support a vehicular homicide conviction, Louisiana law requires only
that a person’s driving while intoxicated be a proximate cause, or contributing
factor, to the collision that causes the victim’s death. See id. Thomas has

9

failed to demonstrate in any way that his impaired driving did not contribute,
at least in part, to the collision that killed his daughter.
Thomas’s remaining objections challenge the wording of the Magistrate
Judge’s Report and Recommendation. For example, Thomas objects to the
Magistrate Judge’s characterizing the trial evidence as demonstrating that
there was “a large bump in the road”23 and “few warning signs” in the area,24
and that Thomas’s vehicle left the highway “at a high rate of speed.”25 Again,
these arguments fail to attack directly the evidence on which Thomas’s
conviction rests and do not advance his arguments for post-conviction relief.
Accordingly, the Court denies Thomas’s petition for habeas corpus relief and
dismisses his claims with prejudice.
Rule 11(a) of the Rules Governing Section 2254 Proceedings provides
that “[t]he district court must issue or deny a certificate of appealability when
it enters a final order adverse to the applicant.” A court may only issue a
certificate of appealability if the petitioner makes “a substantial showing of the
denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). The “controlling
standard” for a certificate of appealability requires the petitioner to show “that
reasonable jurists could debate whether (or, for that matter, agree that) the
23

R. Doc. 10 at 25; see R. Doc. 11 at 8 (Objection No. 5).

24

R. Doc. 10 at 26; see R. Doc. 11 at 8 (Objection No. 4).

25

R. Doc. 10 at 27; see R. Doc. 11 at 8 (Objection No.3).
10

petition should have been resolved in a different manner or that the issues
presented [are] adequate to deserve encouragement to proceed further.”
Miller-El v. Cockrell, 537 U.S. 322, 336 (2003) (quoting Slack v. McDaniel,
529 U.S. 473, 484 (2000)).
For the reasons stated in the Magistrate Judge’s Report and
Recommendation, as well as this Order denying relief, the Court concludes
that Thomas’s petition fails to satisfy this standard.
For the foregoing reasons, the Court DENIES Thomas’s petition for
habeas corpus and DENIES a certificate of appealability.

24th
New Orleans, Louisiana, this _______ day of November, 2015.

___________________________________
SARAH S. VANCE
UNITED STATES DISTRICT JUDGE

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