Rick v. Vannoy et al

Filing 12

ORDER ADOPTING REPORT AND RECOMMENDATIONS 10 . IT IS ORDERED that the petition of Michael E. Rick for issuance of a writ of habeas corpus under 28 U.S.C. § 2254 be DENIED and DISMISSED WITH PREJUDICE. Signed by Judge Mary Ann Vial Lemmon on 8/16/2017.(ajn)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
MICHAEL E. RICK

CIVIL ACTION

VERSUS

NO. 16-15650

DARREL VANNOY, WARDEN

SECTION “S” (2)

ORDER
The court, having considered the complaint, the record, the applicable law, the
Report and Recommendation of the United States Magistrate Judge, and the petitioner’s
objection to the United States Magistrate Judge’s Report and Recommendation, hereby
approves the Report and Recommendation of the United States Magistrate Judge and
adopts it as its opinion in this matter.
The petitioner argues that he received ineffective assistance of counsel because his
trial counsel failed to call his wife as a witness, and that she would have testified favorably
to his case. The United States Court of Appeals for the Fifth Circuit has stated that on
federal habeas corpus review, “[c]omplaintis of uncalled witnesses are not favored,
because the presentation of testimonial evidence is a matter of trial strategy and because
allegations of what a witness would have testified are largely speculative.” Graves v.
Cockrell, 351 F.3d 143, 156 (5th Cir. 2003), reh’g granted in part on other grounds, 351
F.3d 156 (5th Cir. 2003) (quotations omitted). To prevail, a petitioner must name the
witness, demonstrate that the witness was available to testify and would have, and set out
the content of the witness’s proposed testimony showing that it would have been favorable
to the defense. Day v. Quarterman, 566 F.3d 527, 538 (5th Cir. 2009). Petitioner named

the witness, his wife, and speculates that her testimony would have been favorable to him.
However, he does not prove that she was available to testify, and would have testified as
he speculates rather than offering testimony that would have been harmful to the defense.
Petitioner’s argument is speculative and deficient. Therefore, he has not demonstrated that
he received ineffective assistance of counsel because his wife was not called as a witness.
Therefore,
IT IS ORDERED that the petition of Michael E. Rick for issuance of a writ of
habeas corpus under 28 U.S.C. § 2254 be DENIED and DISMISSED WITH
PREJUDICE.

August

16th
New Orleans, Louisiana, this __________ day of ___________________, 2017.

_________________________________
UNITED STATES DISTRICT JUDGE