Mayon v. Cain et al
ORDER AND REASONS: IT IS ORDERED that the objections are OVERRULED; IT IS FURTHER ORDERED that the 21 Report is ADOPTED; and IT IS FURTHER ORDERED that Petitioner's claims are dismissed with prejudice. Signed by Judge Ivan L.R. Lemelle on 4/12/2017.(mmv)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
SECTION “B” (3)
ORDER AND REASONS
Before the Court is a Report and Recommendation (“the Report”)
issued by Magistrate Judge Daniel E. Knowles, III, dismissing the
Petitioner’s application for habeas relief with prejudice. (Rec.
Doc. 21 at 20). In response to the Report, Petitioner timely
filed objections and requested rejection of the Report. (Rec.
For the reasons outlined below,
IT IS ORDERED that the objections are OVERRULED;
IT IS FURTHER ORDERED that the Report is ADOPTED; and
IT IS FURTHER ORDERED that Petitioner’s claims are dismissed
Petitioner Kevin Mayon pled guilty to two counts of aggravated
burglary, one count of attempted aggravated burglary, and one count
of attempted burglary. (Rec. Doc. 21 at 1). He was granted an outof-time appeal to the Louisiana Fifth Circuit Court of Appeals,
and the court affirmed his conviction and sentence. (Id. at 2).
After this affirmation, Petitioner did not seek further direct
review of his conviction. (Id.). He filed an application for post-
application was denied on January 23, 2014. (Id.). His subsequent
applications for post-conviction relief were denied by both the
Louisiana Fifth Circuit Court of Appeals and the Louisiana Supreme
Petitioner filed the instant application for a writ of habeas
corpus under Title 28 United States Code section 2254 asserting
4). He claimed
counsel’s pressure on him to plead guilty. Magistrate Judge Knowles
found that Petitioner stated under oath that he was not offering
his guilty plea under duress and, thus, has the burden to overcome
a presumption that this statement was true.
The Magistrate Judge found Petitioner failed to present any
by counsel to
overcome the presumption and, further, the trial judge exercised
due caution to ensure that Petitioner’s plea was voluntary. In
involved in an unreasonable application of, clearly established
federal law, as determined by the Supreme Court of the United
In his Objections to the Report, Petitioner asserts that his
counsel failed to object or request a continuance because, as
Petitioner alleges, the trial court did not ensure that he was not
intimidated into entering his guilty plea. He contends that, as
evident from the face of the record, counsel’s performance fell
below the standard set by Strickland v. Washington, 466 U.S. 688
(1984), and State v. Washington, 491 So.2d 1337 (La. 1986), and,
as such, violated Petitioner’s Sixth Amendment right.
When the trial judge asked Petitioner whether he was “forced,
threatened, or coerced into entering these pleas of guilty,”
Petitioner answered that he has “been intimidated.” He asserts
that this exchange demonstrates an actual conflict between himself
and his trial counsel, despite later offering a guilty plea.
1. Trial counsel’s failure to object or request a continuance
for Petitioner to consider his guilty plea did not amount to
insufficient assistance of counsel.
A guilty plea must have an affirmative showing on the record
that the plea was offered voluntarily and understandingly. Boykin
v. Alabama, 395 U.S. 238, 242-44 (1969). The trial judge must
personally “canvass . . . the matter with the [defendant] to make
sure he has a full understanding of what the plea connotes and of
its consequences.” Id. at 243-44.
In Boykin v. Alabama, the criminal defendant pled guilty to
his charges, but the trial judge did not ask any questions of the
defendant concerning his plea and, as such, the record failed to
show that the defendant made his plea knowing and voluntarily. Id.
at 239-40. Unlike the record in Boykin which did not show a knowing
and voluntary guilty plea, the record here demonstrates that the
trial judge went to great lengths to assure that Petitioner’s
pleas were not coerced. (Rec. Doc. 21 at 13-16 - citing the
transcript of the trial court proceedings).
Petitioner first told the trial judge that he was intimidated
into entering the guilty plea. (Id. at 13). In response, the judge
explained what it means to make a voluntary plea, that the Court
could not accept a coerced plea, and that trial would begin. (Id.).
The trial judge moved to other matters while Petitioner conferred
with his counsel. (Id.). After this break, the trial judge heard
from Petitioner’s counsel and then bypassed counsel to personally
engage with Petitioner. (Id. at 14-15). The trial judge discussed
Petitioner three separate times during the proceedings with two
breaks for Petitioner to confer with counsel and contemplate going
conversations, Petitioner stated that he enters a plea of guilty
and he was not coerced, threatened, or intimidated to make the
plea. (Id. at 16).
objected or moved for a continuance has no merit. The trial
judge acted properly by personally canvassing with Petitioner in
open court to determine that he was not being coerced. Because the
trial judge’s actions were proper and fulfilled his constitutional
duty to ensure that the guilty plea was voluntary and knowing,
Petitioner did not demonstrate ineffective assistance of counsel.
2. The record does not demonstrate sufficient evidence that
Petitioner’s guilty plea was untruthful.
A guilty plea under oath after personal canvassing with the
trial judge to ensure that the plea is voluntary and knowing
“carries a strong presumption of verity.” DeVille v. Whitley, 21
F.3d 654, 659 (5th Cir. 1994). To overcome this strong presumption,
Petitioner must demonstrate independent evidence to support his
claim that his guilty plea was coerced. See United States v.
Raetzsch, 781 F.2d 1149, 1151 (5th Cir. 1986); Lyon v. Scott, No.
03-05539, 1995 WL 71359, at*2 (5th Cir. Jan. 31, 1995). The “mere
contradiction of his statements at the guilty plea hearing” does
not satisfy this burden. Raetzsch, 781 F.2d at 1151.
Because Petitioner stated under oath that he was pleading
voluntarily and he was not coerced, he bears the burden of proving
Magistrate Judge Knowles correctly identified this burden in his
Report. (Rec. Doc. 21 at 17). Yet, Petitioner objected that the
record alone is sufficient to overcome this burden and did not
attempt to provide any additional or independent evidence. (Rec.
statements at the hearing: first, stating that he was intimidated,
and later, stating he was not. Because this is not sufficient to
overcome the burden of proving that his statement under oath was
not true, Petitioner objection is without merit.
New Orleans, Louisiana, this 12th day of April 2017.
SENIOR UNITED STATES DISTRICT JUDGE
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