Carlisle v. Normand, et al

Filing 73

ORDER ADOPTING REPORT AND RECOMMENDATIONS, Rec. Doc. 69 - IT IS ORDERED that Taylor Carlisle's Petition for Writ of Habeas Corpus Under 28:2241 is DENIED and DISMISSED WITH PREJUDICE. IT IS FURTHER ORDERED that the Court GRANTS Petitioner a certificate of appealability. Signed by Judge Wendy B Vitter on 10/22/2020.(sa)

Case 2:16-cv-00838-WBV Document 73 Filed 10/22/20 Page 1 of 11

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
TAYLOR CARLISLE

CIVIL ACTION

VERSUS

NO. 16-838-WBV

NEWELL NORMAND, ET AL.

SECTION “D”(2)
ORDER

The Court, having considered the Petition for Writ of Habeas Corpus under 28
U.S.C. § 2254,1 the record, the applicable law, the Report and Recommendation of the
United States Magistrate Judge,2 and the Objections filed by petitioner, Taylor
Carlisle,3 hereby approves the Report and Recommendation of the United States
Magistrate Judge and adopts it as its opinion in this matter.
I.

PETITIONER’S OBJECTIONS
On September 18, 2019, the United States Magistrate Judge issued a Report

and Recommendation to the Court, recommending that the instant Petition for Writ
of Habeas Corpus be denied and dismissed with prejudice.4 Thereafter, on October
2, 2019, Petitioner filed Objections to the Magistrate Judge’s Report and
Recommendation.5 Petitioner also filed a Motion to File Exhibit D Inadvertently Not
Filed With Carlisle’s Objection to Report and Recommendation (Rec. Doc. 69, Filed
09/18/2019), seeking to file portions of a deposition transcript that was inadvertently

R. Doc. 1.
R. Doc. 69.
3 R. Doc. 70.
4 R. Doc. 69.
5 R. Doc. 70.
1
2

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not filed with Petitioner’s Objections.6

The Court granted that motion and the

Exhibit was filed into the record.7
Generally, Petitioner objects to the entirety of the Magistrate Judge’s findings
and recommendations. Although not entirely clear from his brief, it appears that
Petitioner’s Objections to the Magistrate Judge’s Report merely restate the
arguments raised in his original Petition. Specifically, Petitioner objects that there
is no evidence and no recorded state proceeding for his 2015 arrest and conviction for
contempt under La. Code Crim. P. arts. 21-25.8 Petitioner takes issue with an
October 9, 2015 per curiam issued by Judge Lee V. Faulkner of the 24th Judicial
District Court in Jefferson Parish, Louisiana, and asserts that the contempt
proceedings were conducted by Judge Faulkner, “in a closed courtroom, with no court
reporter without record.”9 Petitioner also asserts that unreliable minute entries,
“dubious” circumstances surrounding a second per curiam issued by Judge Faulkner
on November 23, 2015, and the state court record contradict Judge Faulkner’s
findings.10

Petitioner further argues that affidavits from eyewitnesses at his

contempt hearing also contradict Judge Faulkner’s two per curiam responses.11
Finally, Petitioner asserts that the contempt finding was a subterfuge by Judge
Faulkner to impose jail time on drug court participants for conduct violations in order
to keep them in the “cash cow” of drug court.12

R. Doc. 71.
R. Doc. 72.
8 R. Doc. 70-1 at pp. 6-13.
9 Id. at p. 7.
10 Id. at pp. 8-12.
11 Id. at pp. 12-13.
12 Id. at pp. 13-14.
6
7

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II.

LAW AND ANALYSIS
The Court initially notes that Petitioner points to what he considers to be

misstatements

in

the

Magistrate

Judge’s

original

June

3,

2016

Report

and Recommendation,13 which was previously adopted by this Court.14

That

decision (denying Petitioner's Petition as moot) was subsequently reversed by the
Court of Appeals for the Fifth Circuit, which remanded the case back to this
Court for further proceedings consistent with that court’s opinion.15

Once the

case was remanded, the matter was again referred to the Magistrate Judge for
a Report and Recommendation,16 and the Magistrate Judge issued the September
18, 2019 Report and Recommendation that is currently before the Court.17 To the
extent that Petitioner objects to statements in the original Report and
Recommendation,

which

have

no

bearing

on

the

Recommendation, the Court overrules those objections.18

current

Report

and

The Court likewise

overrules Petitioner’s objections to statements made by the Magistrate Judge
during oral argument in this matter.

The Magistrate Judge’s statements and

questions during oral argument are not evidence and have not been considered by
the Court in reviewing and ruling on Petitioner’s Objections.
Petitioner also asks the Court to review the following pleadings in conducting
its de novo review of the Magistrate Judge’s Report and Recommendation: (1) the
R. Doc. 30.
R. Doc. 38.
15 R. Doc. 63.
16 R. Doc. 67.
17 R. Doc. 69.
18 R. Doc. 70-1, pp. 3-4, Magistrate description of the claim; p. 7, statements in the original R&R citing
the 11-23-15 per curiam by the trial court; pp.9-10, statements made by the Magistrate Judge during
oral argument in 2017.
13
14

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Petition for Writ of Habeas Corpus under 28 U.S.C. § 2254;19 (2) Petitioner’s Motion
for a Full Evidentiary Hearing;20 (3) the Affidavit of attorney Steven Lemoine;21 (4)
Petitioner’s Supplemental Memorandum in Support of Motion for Evidentiary
Hearing;22 (5) Petitioner’s Supplementary Memorandum Submitting Affidavit and
Public Record Evidence;23 (6) the Fifth Circuit’s Grant of a Certificate of
Appealability;24 (7) the Transcript from Oral Argument before the Magistrate Judge
on April 16, 2016;25 (8) excerpts from Joe Marino’s deposition;26 (9) excerpts from
Petitioner’s deposition; 27 (10) excerpts from Joe McNair’s deposition;28 (11) excerpts
from the state court record;29 and (12) excerpts from the Electronic Record on Appeal
to the Fifth Circuit.30
The Court has undertaken an exhaustive de novo review of the record,
including the specific documents and exhibits referenced by Petitioner and Judge
Faulkner’s two per curiam responses. Petitioner spends much of his brief questioning
the lack of transcripts from the drug court contempt proceedings. Petitioner also
questions the accuracy of the state court minute entries and the “dubious
circumstances” surrounding Judge Faulkner’s second per curiam response, dated

R. Doc. 1.
R. Doc. 9.
21 R. Doc. 15.
22 R. Doc. 19.
23 R. Doc. 29.
24 R. Doc. 51.
25 R. Doc. 70-3.
26 R. Docs. 70-5 & 70-6.
27 R. Doc. 70-4.
28 R. Doc. 70-9.
29 R. Doc. 70-7.
30 R. Doc. 70-8.
19
20

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November 23, 2015, which was issued at the request of the Louisiana Supreme Court.
Initially, the Court notes that the state appellate court had the opportunity to address
the issue of whether real-time transcription is required in drug court and, in
particular, in this case, during its review. While the Louisiana Constitution requires
a complete record before a person can be imprisoned, the record reflects that
Petitioner, upon voluntarily participating in the drug court program, specifically
waived “all due process rights which [he] may have under the U.S. Constitution and
the Constitution of Louisiana involved in the administration of Drug Court and in
particular the imposition of sanctions by the Drug Court Judge.”31

The state

appellate court ruled “By agreeing to the probation agreement, we find defendant
waived all of his due process rights under the Louisiana Constitution, including
that afforded by Art. 1, § 19.”32 This Court agrees with that finding.
Further, the record clearly reveals that the Louisiana Supreme Court
requested the second per curiam response from Judge Faulkner in its effort to review
the record. The first line of the per curiam states “This Per Curiam is submitted
pursuant to a request from Louisiana Supreme Court dated November 18, 2015.”33
The state court record clearly reflects that the per curiam was stamped and filed into
the Louisiana Supreme Court on the same date. In support of his argument regarding
the “dubious circumstances” surrounding the issuance of the second per
curiam response, Petitioner asserts that he did not learn of the November 23

State Court Record, Volume 1, signed waiver.
State Court Record, Volume 1, October 16, 2015 Opinion from the Louisiana Court of Appeals for
the Fifth Circuit.
33
State Court Record, Volume 3, Per Curiam of November 23, 2015.
31
32

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per curiam until the April 16, 2016 oral argument held before the Magistrate
Judge, during which the opinion was revealed by defendant, Sheriff Normand, and
that he was not copied on the per curiam.34 The Court again notes that a review of
the record reflects that the November 23, 2015 per curiam was filed into the public
record with the Louisiana Supreme Court, in the same manner as the first per
curiam was filed with the state appellate court.35 Petitioner even acknowledges
that the clerk of the Louisiana Supreme Court confirmed to counsel that
the second per curiam was requested by the Louisiana Supreme Court.36 The
Court has

found

no

basis

for

Petitioner’s

claim

of

“dubious

circumstances” surrounding the issuance of the November 23, 2015 per curiam.
In support of his argument that the state court record contradicts Judge
Faulkner’s account in the per curiams, Petitioner asserts that the Attachment
issued by the 24th JDC on August 25, 2015 is a fraud because it was issued due to
Petitioner’s alleged failure to appear in court that day, but a second minute entry
for the same day shows that Petitioner appeared in court that morning for his
regular bi-weekly status appearance.37
A review of the record shows that Petitioner failed to appear in drug court on
August 25, 2015, an Attachment was issued, and Petitioner subsequently appeared
in court that day. The record reveals a Minute Entry from August 25, 2015, stating
that Petitioner failed to appear before the court and an Attachment was issued.38
R. Doc. 70-1 at pp. 8-9.
State Court Record, Volume 3.
36
R. Doc. 70-1 at p. 9.
37 R. Doc. 70-1 at pp. 10-11.
38 Id.
34
35

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The Attachment, as referenced herein, is in the record.

The record also

reveals a second Minute Entry from August 25, 2015 stating that, “the Court
ordered the defendant to be given a sanction of 6 months JPCC flat time/
contempt.”39 Petitioner argues that the state record conflicts with the per curiam
response issued by Judge Faulkner. The Court, however, finds no conflict
between

the

state

court

record

and

the November 23, 2015 per curiam

response. Petitioner further argues that the minute entries are suspicious because
they are not signed by the judge. A review of Petitioner’s entire state court
record reveals many instances of minute entries, all electronically signed by
Deputy Clerks, and none signed by the judge. Further, those minute entries are
signed by several different Deputy Clerks, which calls into question Petitioner’s
assertion that the electronically signed minute entries are suspect.
Petitioner also relies on several affidavits to support his Petition and his
Objections to the Magistrate Judge’s Report.

With regard to the Affidavit

from Angela Fourreaux, the Court notes that this Affidavit only addresses the
events of the April 28, 2015 drug court hearing.40 Ms. Fourreaux admits that she
and the other drug court participants were confused by the exchange between Judge
Faulkner and Petitioner. She further admits that, “the questions were not formed
in any way that made it easy to understand what Taylor was in trouble for,” and
that, “we all couldn’t understand it.”41

Taken at face value, Ms. Fourreaux’s

Affidavit underscores that Petitioner was in trouble with the court during the
Id.
R. Doc. 19-7.
41 Id. at pp. 2-3.
39
40

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April hearing. Judge Faulkner’s per curiams confirm this. Ms. Fourreaux’s
Affidavit does not add anything of substance to the contempt sanction issued as
a result of Petitioner’s failure to appear in court as ordered on August 25, 2015.
Petitioner also relies upon the Affidavit of Emile Heron, another drug court
participant, who states that he was in court on both April 28, 2015 and August 25,
2015 with Petitioner.42

Mr. Heron swears that he and Petitioner, his former

roommate, drove to court together, though in separate cars, for the August 25, 2015
hearing.43 He confirms that Petitioner did not turn in his required paperwork, and
that Petitioner advised the court that he either “forgot it” or “don’t have it.”44 Mr.
Heron states that Petitioner was allowed to leave the court and that the two returned
home separately, and that he later learned that Petitioner was arrested outside of
the court.45 Mr. Heron’s Affidavit supports that Petitioner did not have the required
paperwork.
Further, Judge Faulkner’s November 25, 2015 per curiam response provides
that, “Following this discussion [of the failure to turn in required paperwork], Taylor
was allowed to leave court to meet with his probation officer. While proceeding to his
meeting, Taylor informed Compliance Officer Klees that he had lied to staff and the
‘court’ about the whereabouts of his AA documentation. . . . Following his admission
to Officer Klees, Taylor was incarcerated and held for future staffing.” 46 Since Mr.

R. Doc. 27-2 at pp. 2-3.
Id. at p. 3.
44 Id.
45 Id.
46 Per Curiam dated November 25, 2015, State record, Volume 3.
42
43

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Heron was not a witness to anything that occurred once Petitioner left the court that
day, the Court finds that Mr. Heron’s Affidavit provides little support for Petitioner’s
arguments regarding the contempt proceeding. The Court further does not find the
Affidavit of Mr. Heron to necessarily be in conflict with the facts as reflected in Judge
Faulkner’s November 25, 2015 per curiam. The Court further finds that the record,
including the per curiam responses issued by Judge Faulkner, sufficiently detail the
basis for the finding of contempt.
Finally, Petitioner asserts that the contempt finding was a subterfuge by
Judge Faulkner to impose jail time on a drug court participant for conduct
violations in order to keep him in the “cash cow” of drug court. In support of this
argument, Petitioner provides evidence of the fees paid by Petitioner’s mother on
his behalf. In addition, Petitioner points to the testimony of Judge Scott
Schlegel, 24th Judicial District Court, in May 2016 before committees of the
Louisiana Legislature, wherein he testified in support of a bill that would
authorize the drug court judges to incarcerate drug court offenders for technical
violations. Petitioner asserts that Judge Schlegel’s testimony that judges were
currently

using

the

contempt

power

supports

his argument that Judge

Faulkner did not really hold Petitioner in contempt. Petitioner claims that Judge
Faulkner’s responses to the state appellate court and Louisiana Supreme Court
were subterfuges. This Court’s review of the record as indicated herein does not
support that claim. Instead, the record supports the Judge's finding of contempt.

Case 2:16-cv-00838-WBV Document 73 Filed 10/22/20 Page 10 of 11

Following the Court’s de novo review of the record, the Court overrules
Petitioner’s Objections. The Court is convinced that the Magistrate Judge’s wellreasoned analysis in his Report and Recommendation is correct, and the Court adopts
the Report as its own.
Finally, Rule 11(a) of the Rules Governing 28 U.S.C. § 2254 proceedings
provides that, “The 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.”47

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 petition should have been resolved in a
different manner or that the issues presented [are] adequate to deserve
encouragement to proceed further.48 “Any doubt regarding whether to grant a COA
is resolved in favor of the petitioner, and the severity of the penalty may be considered
in making this determination.”49 While the Court is satisfied that it has given this
matter its full consideration and that its ruling is correct, the Court also believes that
reasonable jurists could debate whether the matter should have been resolved in a
different way. The Court, therefore, grants Petitioner a certificate of appealability.
Accordingly,

47 28

U.S.C. § 2253(c)(2).
Miller-El v. Cockrell, 537 U.S. 322, 336 (2003) (quoting Slack v. McDaniel, 529 U.S. 473, 484 (2000)).
49 Fuller v. Johnson, 114 F.3d 491, 495 (5th Cir.1997)." Miller v. Johnson, 200 F.3d 274, 280–81 (5th
Cir. 2000).
48

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IT IS ORDERED that Taylor Carlisle’s Petition for Writ of Habeas Corpus
Under 28 U.S.C. § 224150 is DENIED and DISMISSED WITH PREJUDICE.
IT IS FURTHER ORDERED that the Court GRANTS Petitioner a
certificate of appealability.
New Orleans, Louisiana, October 22, 2020.

_________________________________
WENDY B. VITTER
United States District Judge

50

R. Doc. 1.