Duckett v. Vannoy

Filing 22

ORDER ADOPTING 18 REPORT AND RECOMMENDATIONS. ORDERED that the petition of Darius Duckett for issuance of a writ of habeas corpus under 28 U.S.C. § 2254 is hereby DISMISSED WITH PREJUDICE. Signed by Judge Susie Morgan on 12/4/2017.(clc)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
DARIUS A. DUCKETT

CIVIL ACTION

VERSUS

NO. 16-6823

DARREL VANNOY, WARDEN

SECTION: “E”(5)

ORDER AND REASONS
Before the Court is the Report and Recommendation issued by Magistrate Judge
Michael North recommending that Darius A. Duckett’s (“Petitioner”) petition for federal
habeas corpus relief be dismissed with prejudice. 1 Petitioner timely objected to the
Magistrate Judge’s Report and Recommendation. 2 For the reasons that follow, the Court
adopts the Report and Recommendation as its own, and hereby DENIES Petitioner’s
application for relief.
BACKGROUND
Petitioner is an inmate currently incarcerated at the Louisiana State Penitentiary
in Angola, Louisiana. On July 29, 2010, Petitioner and his co-defendant Kevin Holmes
were indicted for second-degree murder and attempted second-degree murder in
connection with the shooting death of 20-year-old Marvin Newman. 3 Witness testimony
and ballistic evidence strongly suggested that two shooters were involved in the
altercation. 4 An eyewitness identified Holmes in a photographic lineup, and provided
statements indicating that she saw him shoot the victim. 5 Petitioner was later identified

R. Doc. 18.
R. Doc. 21.
3 R. Doc. 18 at 1.
4 Id. at 7-9.
5 Id. at 7.
1

2

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as a suspect, and during an interrogation with the Jefferson Parish police, Petitioner
confessed to shooting a gun in the victim’s direction, perhaps three times. 6 Petitioner
later recanted his confession, explaining that his confession was a false statement made
to protect his cousin, Holmes. 7 The two defendants pleaded not guilty to the charges.
At trial, the co-defendants moved to sever the trial on the grounds that their
mutually antagonistic defenses—Holmes’s defense was that Petitioner’s confession was
true, while Petitioner’s defense was that it was not true—warranted severance. 8 The trial
court denied the motion. 9
On November 11, 2011, a jury found him guilty as charged. 10 His motion for a new
trial was denied. 11 He was sentenced to life imprisonment at hard labor without benefit of
probation, parole, or suspension of sentence on count one, and 50 years imprisonment
on count two, to be served consecutively. 12
Petitioner appealed the conviction, asserting that the trial court erred in denying
his motion for severance and motion for a few trial, and in failing to instruct the jury on
self-defense. Petitioner alleges that at trial, counsel for his co-defendant “prosecuted
Duckett more aggressively than the State prosecutor.” 13 He alleges the co-defendant’s
attorney was able to use the joint trial to his client’s advantage by asking leading questions
of Petitioner’s witnesses, questioning witnesses without Petitioner having the ability to
cross-examine, and using the opening and closing statements to build a case against

R. Doc. 1-4 at 4.
Id.
8 Id.
9 Id.
10 Id. at 2.
11 Id.
12 R. Doc. 18 at 2.
13 R. Doc. 1-4 at 1.
6
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Petitioner. 14 The state court of appeals affirmed the convictions and sentences, and the
Louisiana Supreme Court denied his application for a writ of certiorari. 15
On January 7, 2015, Petitioner filed an application for post-conviction relief with
the state district court. He raised three claims. First, he asserted that the denial of motions
for severance and for new trial violated due process. Second, he argued that was denied
effective assistance of trial counsel, because the trial counsel failed to assert a violation of
due process with regard to the motions for severance and new trial. Third, he argued that
he was denied effective assistance of appellate counsel for failing to raise his due process
claims on direct appeal. 16 The district court denied post-conviction relief, and his
supervisory writ applications filed by his counsel were subsequently denied by the
Louisiana Fifth Circuit Court of Appeals and the Louisiana Supreme Court. 17 Petitioner
has exhausted his state remedies, and now seeks federal habeas corpus relief.
Petitioner’s filed a petition for a writ of habeas corpus on May 23, 2016, asserting
that the denials of the motion to sever and the motion for new trial violated due process. 18
Petitioner relies on United States v. Lane 19 and Zafiro v. United States 20 to argue that
due process requires severance and separate trials when a joint trial is fundamentally
unfair. 21 The State responded in opposition to Petitioner’s habeas application on July 12,
2016. 22 Petitioner filed a reply to the State’s response. 23

Id. at 6-14.
Id.
16 Id. at 2-3.
17 Id. at 3.
18 R. Doc. 1.
19 474 U.S. 438 (1986).
20 506 U.S. 534 (1993).
21 R. Doc. 1-4 at 17-18.
22 R. Doc. 14.
23 R. Doc. 17.
14
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On June 7, 2017, Magistrate Judge North issued a Report and Recommendation
concluding that Petitioner’s application for federal habeas corpus relief be dismissed with
prejudice. 24 The Magistrate Judge determined that, although the issue has not been
directly addressed by the Fifth Circuit, other circuit courts have held that Lane and Zafiro
do not establish controlling federal law as set forth by the Supreme Court governing statecourt determinations. 25 Thus, Petitioner’s claim for failure to sever is not cognizable on
federal review. 26 Even if it were cognizable, however, the Magistrate Judge found that the
state court’s determination that a joint trial was not fundamentally unfair or unduly
prejudicial did not contravene that federal precedent. 27
On June 28, 2017, Petitioner timely filed objections to the Report and
Recommendations. 28 Petitioner made four objections. First, Petitioner objects to the
Magistrate Judge’s conclusion that his claim is not cognizable under federal law. Second,
he objects to the Magistrate Judge’s determination that, even if the Petitioner’s claim were
cognizable on habeas review, Petitioner received a fundamentally fair trial. Third, he
objects to the Magistrate Judge’s statement that “witness testimony suggest[ed] there
were at least two shooters involved.” 29 Lastly, Petitioner objects to the Magistrate Judge’s
analysis regarding the state court’s jury instructions. 30

R. Doc. 18.
See, e.g., Collins v. Runnels, 603 F.3d 1127, 1132 (9th Cir. 2010); Phillips v. Million, 374 F.3d 395 (6th Cir.
2004).
26 R. Doc. 18 at 22.
27 Id. at 25. The Magistrate Judge also discussed claims of ineffective trial counsel and appellate counsel
that were raised in state court proceedings, but were not raised in Petitioner’s federal habeas petition.
Because the Petitioner did not specifically address them in his petition, or assert the claims in his objections
to the Report and Recommendation, this Court will consider them waived.
28 R. Doc. 21.
29 R. Doc. 21 at R. Doc. 18 at 24.
30 R. Doc. 21 at 12.
24
25

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ANALYSIS
A.

Standard of Review
In reviewing the Magistrate Judge’s Report and Recommendations, the Court

must conduct a de novo review of any of the Magistrate Judge’s conclusions to which a
party has specifically objected. 31 As to the portions of the report that are not objected to,
the Court needs only to review those portions to determine whether they are clearly
erroneous or contrary to law. 32
Under the Anti-Terrorism and Effective Death Penalty Act of 1996 (“AEDPA”), a
federal court must defer to the decision of the state court on the merits of a pure question
of law or a mixed question of law and fact unless that decision “was contrary to, or
involved an unreasonable application of, clearly established Federal law, as determined
by the Supreme Court of the United States.” 33 A state court's decision is contrary to clearly
established federal law if: “(1) the state court applies a rule that contradicts the governing
law announced in Supreme Court cases, or (2) the state court decides a case differently
than the Supreme Court did on a set of materially indistinguishable facts.” 34 AEDPA
requires that a federal court “accord the state trial court substantial deference.” 35
B.

Due Process
The Magistrate Judge determined that plaintiff failed to assert a claim cognizable

by this Court because the Supreme Court has not clearly established a right under the Due
Process Clause not to be joined for trial, even if the co-defendants presented mutually

See 28 U.S.C. § 636(b)(1) (“A judge of the court shall make a de novo determination of those portions of
the report or specified proposed findings or recommendations to which an objection is made.”).
32 Id.
33 28 U.S.C. § 2254(d)(1).
34 Nelson v. Quarterman, 472 F.3d 287, 292 (5th Cir. 2006) (en banc) (quoting Mitchell v. Esparza, 540 U.S.
12, 15-16 (2003).
35 Brumfield v. Cain, 135 S. Ct. 2269 (2015).
31

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antagonistic defenses. 36 Petitioner objects, arguing that U.S. v. Lane establishes a due
process right to a severed trial if a joint trial results in serious prejudice. Specifically,
Petitioner cites a footnote in Lane in which the Court states, “misjoinder would rise to the
level of a constitutional violation . . . if it results in prejudice so great as to deny a
defendant his Fifth Amendment right to a fair trial.” 37 Petitioner also looks to Zafiro v.
United States for support. 38 In that case, the Supreme Court held that Rule 14 of the
Federal Rules of Criminal Procedure does not mandate severance whenever codefendants present conflicting defenses.

39

The Supreme Court notes, however, that if

there is a serious risk that a joint trial would compromise a specific trial right of one of
the defendants, or prevent the jury from making a reliable judgment about guilt or
innocence,” severance may be required. 40
The Court finds that no “clearly established Federal law, as determined by the
Supreme Court of the United States” provides a constitutional right to separate trials for
co-defendants who assert mutually antagonistic defenses. Contrary to the Petitioner’s
arguments, Lane does not provide otherwise. As other circuits have noted, the quoted
footnote in Lane is mere dicta. 41 The Supreme Court has interpreted AEDPA’s phrase
“clearly established Federal law, as determined by the Supreme Court of the United
States” to specifically refer to the holdings of cases, and not to dicta. 42 No constitutional
issue was before the Court in Lane; that case dealt with the standards of joinder under

R. Doc. 18 at 20.
474 U.S. at 446 n.8.
38 506 U.S. 534 (1993).
39 Id. at 539.
40 Id. at 538.
41 See Collins v. Runnels, 603 F.3d 1127, 1132 (9th Cir. 2010) (The footnote upon which Collins relies did
not set forth the governing legal principle in Lane. It was merely a comment.”).
42 Williams v. Taylor, 529 U.S. 362, 412 (2003).
36
37

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Federal Rules of Criminal Procedure 8 and 52. The footnote on which Petitioner relies
does not constitute “governing law,” and so it is insufficient to bring a claim for habeas
relief under AEDPA. 43
Nor does Zafiro provide the support that Petitioner suggests. Petitioner argues that
Zafiro “recognized the role of Fed. R. Crim. P. 14 in safeguarding constitutional rights
from the burden of joinder.” 44 As in Lane, however, the Court was not explicating
constitutional requirements, but only interpreting the Federal Rules of Criminal
Procedure. Accordingly, it is not binding on state courts. 45 This Court agrees with the
reasoning of the Sixth Circuit, which found, “Zafiro thus has no precedential weight in
reviewing state court proceedings on due process grounds.” 46
Even if Zafiro and Lane created “clearly established Federal law” sufficient for
relief under AEDPA, Petitioner has not shown that the alleged defects of his trial cross
that line. Significantly, the Zafiro Court expressly stated that mutually antagonistic
defenses were not per se prejudicial. 47 Moreover, the Court’s examples of when a risk of
prejudice may be present do not apply here. The Court elaborated:
Such a risk might occur when evidence that the jury should not consider
against a defendant and that would not be admissible if a defendant were
tried alone is admitted against a codefendant. For example, evidence of a
codefendant’s wrongdoing in some circumstances erroneously could lead a
jury to conclude that a defendant is was guilty . . . Evidence that is probative
of a defendant’s guilt but technically admissible only against a codefendant
also might present a risk of prejudice. Conversely, a defendant might suffer
prejudice if essential exculpatory evidence that would be available to a
defendant tried alone were unavailable in a joint trial. 48

Nelson v. Quarterman, 472 F.3d 287, 292 (5th Cir. 2006)
R. Doc. 21 at 2.
45 See Collins, 603 F.3d at 1132.
46 Phillips v. Million, 374 F.3d 395 (6th Cir. 2004).
47 Zafiro, 506 U.S. at 538
48 Id. at 539.
43

44

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These situations all describe evidentiary or technical loopholes that co-defendants may
be able to manipulate in a joint trial that would not exist in separate trials. Petitioner,
however, does not allege such a situation. Rather, the thrust of his argument is that a joint
trial put him at a disadvantage because both the prosecutor and co-defendant’s counsel
sought to undermine his defense. 49 Petitioner argues that his co-defendant’s counsel took
the opportunity in opening and closing statements to attack him. 50 Petitioner also argues
that because his co-defendant’s counsel was able to asking leading questions of
prosecution witnesses, his ability to discredit the Petitioner was “sharper than the
prosecutor’s.” 51 Unlike the examples in Zafiro, Petitioner has not shown that any essential
exculpatory evidence was not available in the joint trial, or that evidence that would be
inadmissible in a separate trial was introduced in his joint trial. His claims simply
describe the reality of cross-examination when co-defendants present mutually
antagonistic defenses. Such claims do not rise to constitutional violations. As the Supreme
Court’s admonished, “it is well settled that defendants are not entitled to severance merely
because they may have a better chance of acquittal in separate trials.” 52
The Court concludes that the state court’s determination that joinder of the codefendants did not deny Petitioner due process or a fair trial is neither contrary to, nor an
unreasonable application of federal law as clearly established by the Supreme Court.
C.

Witness Testimony
Petitioner objects to the Magistrate Judge’s statement that “witness testimony

suggest[ed] there were at least two shooters involved.” 53 Petitioner asserts that detective

R. Doc. 21 at 3-4.
R. Doc. 21 at 4.
51 Id. at. 6.
52 Zafiro, 506 U.S.
53 R. Doc. 21 at 3 (quoting R. Doc. 18 at 24).
49

50

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Abraham Andino of the Jefferson Parish Sheriff’s Office testified that none of the
numerous eyewitnesses he interviewed told him that Petitioner had a gun on the night in
question. Further, Plaintiff notes that the only evidence that Petitioner was one of the
shooters was Petitioner’s own confession. 54
The Magistrate Judge’s description of the evidence is accurate. “The evidence
consisted of an eyewitness who positively identified Holmes as the shooter and a detailed,
lengthy confession by Duckett to police that he shot the victim, as well as ballistics
evidence that coincided with witness testimony suggesting there were at least two
shooters involved.” Contrary to the Petitioner’s assertions, the Magistrate Judge did not
suggest that witness testimony implicated the Petitioner directly, only that there was
witness testimony “suggesting there were at least two shooters involved.” This is
consistent with the trial testimony as summarized by the Louisiana Fifth Circuit of
Appeal. 55
D.

Jury Instructions
Lastly, Petitioner objects to the Report and Recommendations to the extent that

the Magistrate Judge determined that the jury instructions cured whatever prejudice may
have existed. 56 Petitioner points out that the standard jury instructions were used at trial,
which did nothing to mitigate the prejudice from co-defendant counsel’s aggressive crossexamination. 57
However, Petitioner misstates the conclusions of the Magistrate Judge. The Report
and Recommendations does not suggest that the jury instructions used at trial entirely

R. Doc. 21 at 3.
R. Doc. 18 at 7 (quoting State Rec., Vol. 3 of 9, State v. Duckett, 119 So. 3d at 170-75).
56 R. Doc. 21 at 12.
57 Id. at 13.
54
55

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cured the risk of prejudice; rather, the Magistrate Judge noted that by instructing the jury
to consider only the evidence at trial and not counsel’s opening and closing statements 58,
the jury instruction “certainly impact[ed] the alleged prejudicial effect of opening and
closing statements, two of three components of trial underlying Duckett’s claim that he
was denied a fair trial.” 59 Trial courts have the discretion to craft “less drastic measures,
such as limiting instructions” when a risk of prejudice from mutually antagonistic
defenses may exist. 60 Jurors are presumed to follow the jury instructions provided by the
court. 61 Accordingly, the Magistrate Judge was correct to note that the jury instructions
provided by the state trial court diminished whatever risk of prejudice may have existed.
CONCLUSION
For the reasons above, the Court approves the Magistrate Judge’s Report and
Recommendations 62 and adopts it as its opinion in this matter. Accordingly;
IT IS ORDERED that the petition of Darius Duckett for issuance of a writ of
habeas corpus under 28 U.S.C. § 2254 is hereby DISMISSED WITH PREJUDICE.
New Orleans, Louisiana, this 4th day of December, 2017.
________________________________
SUSIE MORGAN
UNITED STATES DISTRICT JUDGE

There is no dispute that no special limiting instructions were requested, and that the trial court used
standard jury instructions.
59 R. Doc. 18 at 25.
60 Zafiro, 506 U.S. at 539.
61 Richardson v. Marsh, 481 U.S. 200, 211 (1987).
62 R. Doc. 18.
58

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