Lomax v. Vannoy et al

Filing 15

ORDER ADOPTING REPORT AND RECOMMENDATIONS 13 . ORDERED that Petitioners objections are OVERRULED; FURTHER ORDERED that the Court ADOPTS the Magistrate Judges recommendation and Petitioner Larenzo Lomaxs petition for issuance for a writ of habeas corpus pursuant to 28 U.S.C. 2254 is DENIED and DISMISSED WITH PREJUDICE. Signed by Judge Nannette Jolivette Brown on 8/15/2017.(caa)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
LARENZO LOMAX

CIVIL ACTION

VERSUS

NO. 16-15869

DARREL VANNOY, WARDEN

SECTION: “G”(3)

ORDER AND REASONS
Before the Court are Petitioner Larenzo Lomax’s (“Petitioner”) objections1 to the Report
and Recommendation of the United States Magistrate Judge assigned to the case.2 Petitioner, a
state prisoner incarcerated at the Louisiana State Penitentiary in Angola, Louisiana, filed a petition
pursuant to 28 U.S.C. § 2254, contending that he received ineffective assistance of counsel during
his state criminal prosecution.3 The Magistrate Judge recommends that the Court dismiss the
petition on the merits,4 and Petitioner objects to the recommendation.5 After reviewing the petition,
the State’s response, the Magistrate Judge’s Report and Recommendation, Petitioner’s objections,
the record, and the applicable law, the Court will overrule Petitioner’s objections, adopt the
Magistrate Judge’s recommendation and dismiss this action with prejudice.

1

Rec. Doc. 14.

2

Rec. Doc. 13.

3

Rec. Doc. 1.

4

Rec. Doc. 13.

5

Rec. Doc. 14.

1

I. Background
A.

Factual Background
On December 19, 2011, Petitioner was charged by Bill of Information in the 22nd Judicial

District Court for the Parish of St. Tammany with two counts of armed robbery.6 Specifically,
Petitioner was charged with committing an armed robbery of the Whitney Bank in Mandeville,
Louisiana, on October 31, 2011.7 On March 2, 2012, a jury found Petitioner guilty as charged.8 On
May 14, 2012, the state trial court sentenced Petitioner on each count to a concurrent term of sixty
years imprisonment without benefit of probation, parole, or suspension of sentence.9 On March
22, 2013, the Louisiana First Circuit Court of Appeal affirmed Petitioner’s convictions and
sentences.10 On November 15, 2013, the Louisiana Supreme Court denied Petitioner’s related writ
application.11
On February 4, 2015, Petitioner filed an application for post-conviction relief to the state
trial court.12 The state trial court denied Petitioner’s post-conviction relief application on March 5,
2015.13 Petitioner’s related writ applications were denied by the Louisiana First Circuit on August
10, 2015,14 and the Louisiana Supreme Court on October 17, 2016.15

6

State Rec., Vol. I of VII, Bill of Information, Dec. 19, 2011.

7

State v. Lomax, 12-KA-1390, p. 2 (La. App. 1 Cir. 3/22/13); State Rec., Vol. III of VII.

8

State Rec., Vol. I of VII, Jury Verdict Forms, Mar. 2, 2012.

9

State Rec., Vol. I of VII, Minute Entry, May 14, 2012.

10

State v. Lomax, 12-KA-1390 (La. App. 1 Cir. 3/22/13); State Rec., Vol. III of VII.

11

State v. Lomax, 13-K-889 (La. 11/15/13); 125 So. 3d 1100.

12

State Rec., Vol. V of VII, Uniform Application for Post-Conviction Relief, Feb. 4, 2015.

13

State Rec., Vol. V of VII, Order, Mar. 5, 2015.

14

State v. Lomax, 15-KW-0685 (La. App. 1 Cir. 8/10/15); State Rec., Vol. V of VII.

15

State ex rel. Lomax v. State, 15-KH-1680 (La. 10/17/16); 202 So. 3d 478.

2

Petitioner filed the instant federal habeas petition in this Court on October 24, 2016,
asserting the following grounds for relief: (1) his trial counsel was ineffective for failing to argue
that the police lacked probable cause to arrest Petitioner; and (2) his counsel was ineffective for
failing to challenge the affidavit in support of a search warrant of Petitioner’s house.16 The State
filed a response, arguing that the petition should be dismissed on the merits.17 On January 25,
2017, Petitioner filed a reply to the State’s response.18
B.

Report and Recommendation Findings
The Magistrate Judge recommends that the petition be dismissed on the merits.19 The

Magistrate Judge found that Petitioner’s first claim asserting counsel was ineffective for failing to
challenge the validity of his arrest was without merit.20 The Magistrate Judge noted that Supreme
Court precedent establishes that an officer may conduct a warrantless arrest under the Fourth
Amendment, if “there is probable cause to believe that a criminal offense has been or is being
committed. Whether probable cause exists depends upon the reasonable conclusion to be drawn
from the facts known to the arresting officer at the time of the arrest.”21 In Petitioner’s case, the
arresting officer, Stephen Paretti, testified at a pretrial hearing that he based his belief that
Petitioner committed the crime of armed robbery on information obtained from Winn Dixie
employees.22 The Magistrate Judge determined that Officer Paretti’s testimony established facts

16

Rec. Doc. 1.

17

Rec. Docs. 11.

18

Rec. Doc. 12.

19

Rec. Doc. 13.

20

Id. at 12–13.

21

Id. at 12 (quoting Devenpeck v. Alford, 543 U.S. 146, 152 (2004)).

22

Id. at 12–13 (citing State Rec., Vol. II of VII, Hearing Transcript at 245–46, Feb. 29, 2012).

3

sufficient to provide probable cause for Petitioner’s arrest.23 Therefore, the Magistrate Judge found
that any motion challenging the validity of Petitioner’s arrest under the Fourth Amendment would
have been meritless, and so Petitioner had not established that his counsel performed ineffectively
by failing to challenge the arrest.24
The Magistrate Judge also rejected Petitioner’s second claim that counsel was ineffective
for failing to challenge the search warrant on the basis that the supporting affidavit contained
allegedly false statements.25 The Magistrate Judge noted that Petitioner alleged that the affidavit
of Detective Joseph Downs should have been challenged on three grounds: (1) the affidavit falsely
stated that Petitioner had admitted that currency from the robbery was in his residence; (2) the
affidavit falsely stated that the currency used at the Winn Dixie store was stained with red dye;
and (3) the affidavit was misleading in that it failed to reveal that the location where Petitioner’s
vehicle was captured on the License Plate Recognition (“LPR”) system was less than three miles
from his house.26 The Magistrate Judge found no colorable evidence to support Petitioner’s
assertion that Detective Downs deliberately lied by stating that Petitioner admitted that the
currency was in his house, as this statement was corroborated by the trial testimony of Deputy
Vaugh Whitehead.27 The Magistrate Judge noted that Detective Downs was relying on the
information he received from Winn Dixie store employees when he stated that the currency used
at the Winn Dixie store was stained with red dye, and so even if that underlying information was
untrue, which Petitioner had not established, it would not serve as a basis for challenging the
23

Id. at 13.

24

Id. (citing Kimmelman v. Morrison, 477 U.S. 365, 375 (1986)).

25

Id. at 14–18.

26

Id. at 15.

27

Id. at 15–16 (citing State Rec., Vol. II of VII, Trial Transcript at 387, Mar. 1, 2012).

4

affidavit.28 Finally, the Magistrate Judge found that the statement regarding the location of the
vehicle was not misleading, because even if it was located less than three miles from Petitioner’s
residence, it was closer to the bank where the robbery occurred.29 Therefore, the Magistrate Judge
concluded that Petitioner had not established that he would have prevailed in challenging the
affidavit, and so Petitioner had not established that his trial counsel’s failure to challenge the
affidavit was ineffective.30
Finally, the Magistrate Judge noted that Petitioner’s assertion that the state court erred in
denying him an evidentiary hearing during post-conviction relief was not reviewable on federal
habeas review.31 Furthermore, the Magistrate Judge determined that Petitioner was not entitled to
a federal evidentiary hearing because “review under 2254(d)(1) is limited to the record that was
before the state court that adjudicated the claim on the merits.”32 Accordingly, the Magistrate
Judge recommends that the Court dismiss the petition with prejudice.33
II. Objections
A.

Petitioner’s Objections
Petitioner raises three objections to the Magistrate Judge’s Report and Recommendation.34

First, Petitioner asserts that the Magistrate Judge erred in concluding that the police had probable

28

Id. at 16.

29

Id.

30

Id.

31

Id. at 17.

32

Id. at 18 (quoting Cullen v. Pinholster, 563 U.S. 170, 181 (2011)).

33

Id. at 19.

34

Rec. Doc. 14.

5

cause to arrest Petitioner at the Winn Dixie store.35 Petitioner argues that the Magistrate Judge
“ignored critical parts of [Petitioner’s] argument.”36 Petitioner asserts that Officer Paretti lied about
the broadcasted description of the vehicle that was used in the robbery in an “attempt to
retroactively establish probable cause to justify [Petitioner’s] arrest.”37 Specifically, Petitioner
asserts that Officer Paretti’s statement that he “observed a four-door sedan that fit the color and
the make of the vehicle that was broadcasted or BOLO’d to our agency that was possibly involved
in the armed robbery that occurred on the 31st of October” was false.38 Petitioner asserts that this
testimony was false because the witness that saw the vehicle did not give a make and described
the car as “dark colored, possible dark green in color.”39 Petitioner contends that he drove a purple
car.40 Moreover, Petitioner contends that Officer Paretti’s testimony regarding the recovery of a
Western Union receipt does not establish probable cause because the receipt was recovered after
Petitioner’s arrest.41 Petitioner acknowledges that the Winn Dixie employee’s statement that
Petitioner had red dye on his hands and Petitioner’s nervous behavior in the store may have
justified an investigatory stop, but Petitioner contends that this information did not establish
probable cause for his arrest.42

35

Id. at 1.

36

Id.

37

Id. at 2.

38

Id.

39

Id.

40

Id.

41

Id. at 3–4.

42

Id. at 4–5.

6

Second, Petitioner objects to the Magistrate Judge’s determination that Detective Downs’
affidavit in support of a search warrant “did not contain materially false statements.”43 Petitioner
asserts that the Magistrate Judge erred in making the conclusory assertion that there is no colorable
evidence in the record that Detective Downs’ deliberately lied, because Petitioner only needs to
show that Detective Downs’ statement was the product of a reckless disregard for the truth, not a
deliberate lie.44 Moreover, Petitioner contends that Detective Downs knew the money recovered
from the Winn Dixie store was not actually stained with dye, but omitted this information from his
affidavit.45 Petitioner further asserts that Detective Downs “had a duty to include [crucial]
information in his affidavit, and his failure to do so qualifies as a deliberate lie (by omission), or
as a reckless disregard for the truth.”46 Furthermore, Petitioner contends that Detective Downs’
affidavit left out pertinent information that the location where Petitioner’s vehicle was captured on
the LPR system was less than three miles from his house.47
Finally, Petitioner argues that the Magistrate Judge erred in failing to accept his allegations
as true.48 Petitioner asserts that an evidentiary hearing is required if the Magistrate Judge does not
accept Petitioner’s factual allegation that the money recovered from Winn Dixie store was not
stained with red dye as true.49

43

Id. at 5.

44

Id. at 6.

45

Id. at 7.

46

Id.

47

Id.

48

Id.

49

Id. at 8.

7

B.

State’s Response
The State of Louisiana did not file a brief in opposition to Petitioner’s objections despite

receiving electronic notice of the filing.
III. Standard of Review
A.

Review of the Magistrate Judge’s Report and Recommendation
In accordance with Local Rule 73.2, this case was referred to the Magistrate Judge to

provide a Report and Recommendation. The District Judge “may accept, reject, or modify the
recommended disposition” of a Magistrate Judge on a dispositive matter.50 The District Judge must
“determine de novo any part of the [Report and Recommendation] that has been properly objected
to.”51 The District Court’s review is limited to plain error for parts of the report which are not
properly objected to.52
B.

Standard of Review Under the AEDPA
Following the enactment of the Antiterrorism and Effective Death Penalty Act of 1996

(“AEDPA”), the standard of review used to evaluate issues presented in habeas corpus petitions
was revised “to ensure that state-court convictions are given effect to the extent possible under
law.”53 For questions of fact, federal courts must defer to a state court’s findings unless they are
“based on an unreasonable determination of the facts in light of the evidence presented in the State
court proceeding.”54 A state court’s determinations on mixed questions of law and fact or pure

50

Fed. R. Civ. P. 72(b)(3); see also 28 U.S.C. § 636(b)(1).

51

Fed. R. Civ. P. 72(b)(3).

See Douglass v. United Servs. Auto. Ass’n, 79 F.3d 1415, 1428–29 (5th Cir. 1996) (en banc), superseded
by statute on other grounds, 28 U.S.C. § 636(b)(1) (extending time to file objections from ten to fourteen days).
52

53

Bell v. Cone, 535 U.S. 685, 693 (2002).

54

28 U.S.C. § 2254(d)(2).

8

issues of law, on the other hand, are to be upheld unless they are “contrary to, or involve[ ] an
unreasonable application of, clearly established Federal law, as determined by the Supreme Court
of the United States.”55
Regarding this standard, the U.S. Court of Appeals for the Fifth Circuit further explains:
A state-court decision is contrary to clearly established precedent if the state court
applies a rule that contradicts the governing law set forth in the Supreme Court’s
cases. A state-court decision will also be contrary to clearly established precedent
if the state court confronts a set of facts that are materially indistinguishable from
a decision of the Supreme Court and nevertheless arrives at a result different from
Supreme Court precedent. A state-court decision involves an unreasonable
application of Supreme Court precedent if the state court identifies the correct
governing legal rule from the Court’s cases but unreasonably applies it to the facts
of the particular state prisoner’s case.56
If Supreme Court case law “give[s] no clear answer to the question presented, let alone one
in [the petitioner’s] favor, ‘it cannot be said that the state court unreasonably applied clearly
established Federal law.’”57 Additionally, “unreasonable is not the same as erroneous or incorrect;
an incorrect application of the law by a state court will nonetheless be affirmed if it is not
simultaneously unreasonable.”58
IV. Law and Analysis
A.

Ineffective Assistance of Counsel
Petitioner raises two ineffective assistance of counsel claims. First, Petitioner claims that

his trial counsel was ineffective for failing to argue that the police lacked probable cause to arrest
Petitioner.

59

Second, Petitioner contends that his trial counsel was ineffective for failing to

55

28 U.S.C. § 2254(d)(1).

56

Wooten v. Thaler, 598 F.3d 215, 218 (5th Cir. 2010) (citations and quotation marks omitted).

57

Wright v. Van Patten, 552 U.S. 120, 126 (2008) (quoting Carey v. Musladin, 549 U.S. 70, 77 (2006)).

58

Puckett v. Epps, 641 F.3d 657, 663 (5th Cir. 2011) (quotation marks omitted).

59

Rec. Doc. 1.

9

challenge the affidavit in support of a search warrant.60 The Magistrate Judge found both of these
claims unavailing,61 and Petitioner objects.62 Accordingly, the Court will review Petitioner’s
ineffective assistance of counsel claims de novo.63
To succeed on an ineffective assistance of counsel claim, a petitioner must demonstrate
both that counsel’s performance was deficient and that the deficient performance prejudiced his
defense.64 If a court finds that a petitioner fails on either of these two prongs it may dispose of the
ineffective assistance claim without addressing the other prong.65 To satisfy the deficient
performance prong, a petitioner must overcome a strong presumption that the counsel’s conduct
falls within a wide range of reasonable representation.66 Petitioner must show that the conduct was
so egregious that it failed to meet the constitutional minimum guaranteed by the Sixth
Amendment.67 Courts addressing this prong of the test for ineffective counsel must consider the
reasonableness of counsel’s actions in light of all the circumstances.68 To prevail on the actual
prejudice prong, a petitioner “must show that there is a reasonable probability that, but for

60

Id.

61

Rec. Doc. 13.

62

Rec. Doc. 14.

63

Fed. R. Civ. P. 72(b)(3).

64

Strickland v. Washington, 466 U.S. 668, 697 (1984).

65

Id. at 697.

66

See Crockett v. McCotter, 796 F.2d 787, 791 (5th Cir. 1986); Mattheson v. King, 751 F.2d 1432, 1441 (5th

Cir. 1985).
67

See Styron v. Johnson, 262 F.3d 438, 450 (5th Cir. 2001).

68

See Strickland, 466 U.S. at 689.

10

counsel’s unprofessional errors, the result of the proceeding would have been different.”69 A
reasonable probability is “a probability sufficient to undermine confidence in the outcome.”70
In considering Petitioner’s claims on federal habeas corpus review that are repetitive of
claims already made to a state court, the central question “is not whether a federal court believes
the state court’s determination under Strickland was incorrect but whether [it] was unreasonable—
a substantially higher threshold.”71 In addition, “because the Strickland standard is a general
standard, a state court has even more latitude to reasonably determine that a defendant has not
satisfied that standard.”72 Thus, this standard is considered “doubly deferential” on habeas corpus
review.73
1.

Failure to Challenge Validity of Petitioner’s Arrest

Petitioner objects to the Magistrate Judge’s determination that the state court did not err in
finding that counsel was not constitutionally deficient in failing to challenge the validity of
Petitioner’s arrest.74 Specifically, Petitioner asserts that the Magistrate Judge erred in concluding
that the police had probable cause to arrest Petitioner at the Winn Dixie store.75 Petitioner asserts
that Officer Paretti lied about the broadcasted description of the vehicle that was used in the
robbery in an “attempt to retroactively establish probable cause to justify [Petitioner’s] arrest.”76

69

Id. at 694.

70

Id.

71

Knowles v. Mirzayance, 556 U.S. 111, 112 (2009) (quoting Schriro v. Landrigan, 550 U.S. 465, 478

72

Id.

73

Id.

74

Rec. Doc. 14 at 1.

75

Id.

76

Id. at 2.

(2007)).

11

Moreover, Petitioner contends that Officer Paretti’s testimony regarding the recovery of a Western
Union receipt does not establish probable cause, because the receipt was recovered after
Petitioner’s arrest.77 Petitioner acknowledges that the Winn Dixie employee’s statement that
Petitioner had red dye on his hands and Petitioner’s nervous behavior in the store may have
justified an investigatory stop, but Petitioner contends this information did not establish probable
cause for his arrest.78 Therefore, the Court reviews this claim de novo.79
The Fourth Amendment protects “[t]he right of the people to be secure in their persons,
houses, papers, and effects, against unreasonable searches and seizures.” In Stone v. Powell, the
Supreme Court held that “where the State has provided an opportunity for full and fair litigation
of a Fourth Amendment claim, a state prisoner may not be granted federal habeas corpus relief on
the ground that evidence obtained in an unconstitutional search or seizure was introduced at his
trial.”80 Therefore, federal habeas petitioners are generally prohibited from directly asserting
Fourth Amendment claims in a federal habeas corpus application, but a petitioner is not precluded
from asserting related Sixth Amendment ineffective assistance of counsel claims.81 “Where
defense counsel’s failure to litigate a Fourth Amendment claim competently is the principal
allegation of ineffectiveness,” a federal habeas petitioner must prove “that his Fourth Amendment
claim is meritorious and that there is a reasonable probability that the verdict would have been
different absent the excludable evidence in order to demonstrate actual prejudice.”82

77

Id. at 3–4.

78

Id. at 4–5.

79

Fed. R. Civ. P. 72(b)(3).

80

428 U.S. 465, 494 (1976).

81

See Kimmelman v. Morrison, 477 U.S. 365 (1986).

82

Id. at 375.

12

In Devenpeck v. Alford, the Supreme Court held that “a warrantless arrest by a law officer
is reasonable under the Fourth Amendment where there is probable cause to believe that a criminal
offense has been or is being committed.”83 “Whether probable cause exists depends upon the
reasonable conclusion to be drawn from the facts known to the arresting officer at the time of the
arrest.”84 “The Supreme Court has defined probable cause as the ‘facts and circumstances within
the officer’s knowledge that are sufficient to warrant a prudent person, or one of reasonable
caution, in believing, in the circumstances shown, that the suspect has committed, is committing,
or is about to commit an offense.’”85 “The facts must be known to the officer at the time of the
arrest; post-hoc justifications based on facts later learned cannot support an earlier arrest.”86
In Petitioner’s case, Officer Paretti testified at a pre-trial hearing that he based his belief
that Petitioner had committed the armed robbery of the Whitney Bank on “what dispatch explained
to us, what they dispatched across the radio, the information that we had from them, [and] the
information from the store clerk” working in the Winn Dixie store where the arrest was made.87
Officer Paretti testified that the store clerk informed the police that “a black male was trying to
complete a transaction at Western Union which appeared to have money dye on the currency along
with money dye on his hands. On top of the fact that the clerk stated she had worked [at] a bank
before, and she was familiar with the money dye and . . . how it stays on hands and how it is on

83

Devenpeck v. Alford, 543 U.S. 146, 152 (2004) (citing United States v. Watson, 423 U.S. 411, 417–24
(1976); Brinegar v. United States, 338 U.S. 160, 175–76 (1949)).
84

Id. (citing Maryland v. Pringle, 540 U.S. 366, 371 (2003)).

85
Club Retro, LLC v. Hilton, 568 F.3d 181, 204 (5th Cir. 2009) (quoting Piazza v. Mayne, 217 F.3d 239,
245–46 (5th Cir. 2000) (quoting Michigan v. DeFillippo, 443 U.S. 31, 37, (1979))).
86

Id. (citing Sibron v. New York, 392 U.S. 40, 62–63 (1968); Henry v. United States, 361 U.S. 98, 102 (1959);
Johnson v. United States, 333 U.S. 10, 16 (1948); Carroll v. United States, 267 U.S. 132, 161–62 (1925)).
87

State Rec., Vol. II of VII, Transcript at 245–46, Feb. 29, 2012.

13

the currency.”88 Additionally, Officer Paretti testified that he observed as Petitioner “exited the
store, made eye contact with me, and briskly went back into the store.”89 Officer Paretti’s testimony
regarding the store clerk’s description of Petitioner, the store clerk’s observation of money dye on
Petitioner’s hands and the currency, and Petitioner’s behavior at the store, was sufficient to
establish probable cause for Petitioner’s arrest. Therefore, Petitioner’s arguments regarding the
description of his vehicle and the recovery of a Western Union receipt are of no moment to this
instant analysis.
Because there was probable cause for the arrest, any motion challenging the validity of the
arrest under the Fourth Amendment would have been meritless. Therefore, Petitioner’s claim that
his counsel was ineffective for failing to assert such a challenge must fail, because he has not
demonstrated that counsel’s performance was deficient or that it prejudiced his defense.90
Accordingly, the Court finds that the state court’s denial of relief on this claim was not contrary to
or an unreasonable application of clearly established federal law.
2.

Failure to Challenge Affidavit in Support of the Search Warrant of
Petitioner’s Home

Petitioner also objects to the Magistrate Judge’s rejection of his claim that he received
ineffective assistance of counsel due to counsel’s failure to properly challenge the affidavit in
support of a search warrant of Petitioner’s house.91 Specifically, Petitioner objects to the

88

Id.

89

Id.

90

See Kimmelman, 477 U.S. at 375.

91

Rec. Doc. 14 at 5–8.

14

Magistrate Judge’s determination that Detective Downs’ affidavit in support of a search warrant
“did not contain materially false statements.”92 Therefore, the Court reviews this claim de novo.93
In Franks v. Delaware, the Supreme Court held that there is “a presumption of validity
with respect to the affidavit supporting the search warrant.”94 To mandate an evidentiary hearing
on the veracity of an affidavit, “the challenger’s attack must be more than conclusory and must be
supported by more than a mere desire to cross-examine. There must be allegations of deliberate
falsehood or of reckless disregard for the truth, and those allegations must be accompanied by an
offer of proof.”95 Similarly, a petitioner can challenge omission of facts in the affidavit if “the
omissions were made intentionally or with a reckless disregard for the accuracy of the affidavit;
negligent omissions will not undermine the affidavit.”96 A petitioner “bears the burden of showing
by a preponderance of the evidence that a misstatement or omission was more than mere
negligence.”97 Further, an evidentiary hearing is not necessary if “when material that is the subject
of the alleged falsity or reckless disregard is set to one side, there remains sufficient content in the
warrant affidavit to support a finding of probable cause.”98
Here, Petitioner challenges the veracity of an affidavit provided by Detective Downs to
obtain a search warrant of Petitioner’s home. The affidavit in question states:
On 10/31/11, at approx. 1219 hrs, members of the Mandeville Police Department
responded to the Whitney Bank, located at 1902 Florida St., Mandeville, LA
92

Id. at 5.

93

Fed. R. Civ. P. 72(b)(3).

94

Franks v. Delaware, 438 U.S. 154, 171 (1978).

95

Id.

96

United States v. Martin, 615 F.2d 318, 329 (5th Cir. 1980).

97

United States v. Runyan, 290 F.3d 223, 234 n.6 (5th Cir. 2002) (citing Martin, 615 F.2d at 329).

98

Franks, 438 U.S. at 171–72.

15

relative to a report of a bank robbery. Upon arrival, Detectives met with the
witness[es] who were inside the bank at the time of the robbery. The witnesses
stated that a male subject entered the bank wearing a black hooded sweat shirt,
approached the teller demanding the money. The perpetrator passed a purple in
color Mardi Gras bag to the teller demanding she fill the bag with cash. The teller
complied and placed a explosive red dye pack in the bag with other US currency.
The perpetrator fled without incident. Another witness observed the perpetrator
running across Florida St. as the dye pack went off. The video surveillance inside
the bank captured the perpetrator wearing long black pants with a stripe down the
leg, black hooded sweatshirt with a black tee shirt over it, and black and red gloves.
The perpetrator had some type of clothing or mask covering his entire head and
face, he was carrying a purple in color Mardi Gras bag.
During the investigation, Detectives accessed the LPR system which captured the
lisence [sic] plate numbers of vehicle North bound on Hwy 59. A list was compiled
of numerous vehicles. One vehicle on the list which was captured was a 2004
Chrysler 4dr, bearing CA plate 6PCU614 at 1219 hrs on 10/31/11. The vehicle
registration returns to a Larenzo Lomax from California.
On 11/1/11, Detectives received information that a subject at the Winn Dixie
located at 4100 Hwy 59, Mandeville, [was] making a Western Union wire transfer
with US currency that had red dye on it. The Detectives along with members of the
STPSO responded to that location and located a black male subject identified as
Larenzo Lomax dob [redacted], residing at 1528 Clover St., Mandeville. Lomax
was pointed out by the store personell [sic] as being the person who made the wire
transfer. The above vehicle was located in the parking lot of the Winn Dixie, which
after Lomax was verbally advised on his Miranda Rights he confirmed that was his
vehicle. Lomax also was formally advised of his Rights and during the course of an
interview, he stated that currency obtained in the robbery was concealed within his
residence, 1528 Clover St.99
Petitioner asserts that Detective Downs’ affidavit should have been challenged on three
grounds.100 First, Petitioner contends that the affidavit falsely stated that Petitioner had admitted
that currency from the robbery was in his residence.101 However, Petitioner presents no evidence
to support his assertion that this statement was false or made with reckless disregard for the truth.
Furthermore, this statement was corroborated by the trial testimony of Deputy Vaugh Whitehead,

99

State Rec., Vol. II of VII, Affidavit of Detective Downs.

100

Rec. Doc. 1-1 at 18–22.

101

Id. at 18–20.

16

who testified that during an interview with police Petitioner admitted that there was “a lot of
money” in his house.102 In his objections to the Report and Recommendation, Petitioner asserts
that Deputy Whitehead’s testimony was also false, but again he presents no evidence to support
this assertion.103 To mandate an evidentiary hearing on the veracity of an affidavit, “the
challenger’s attack must be more than conclusory. . . and those allegations must be accompanied
by an offer of proof.”104 Therefore, Petitioner has not shown that an evidentiary hearing on this
issue would have been warranted under the Supreme Court’s holding in Franks.105
Second, Petitioner alleges that the affidavit falsely asserted that the money Petitioner used
in the money transfer at the Winn Dixie store was stained with red dye.106 The Magistrate Judge
noted that Detective Downs was relying on the information he received from Winn Dixie store
employees when he stated that the currency used at the Winn Dixie store was stained with red dye,
and so even if that underlying information was untrue it would not serve as a basis for challenging
the affidavit.107 In United States v. Arrington, the Fifth Circuit found that “even proof that the
informant’s information was false would not have vitiated probable cause for the warrant.”108
Instead, a defendant challenging an affidavit would have had to show that the affiant police officers
repeated the informant’s tip with knowledge that it was false or with reckless disregard for the

102

State Rec., Vol. II of VII, Trial Transcript at 387, Mar. 1, 2012.

103

Rec. Doc. 14 at 6.

104

Franks, 438 U.S. at 171–72.

105

Id.

106

Rec. Doc. 1-1 at 21.

107

Rec. Doc. 13 at 16.

108

618 F.2d 1119, 1125 (5th Cir. 1980).

17

truth.”109 Petitioner asserts that Detective Downs “knew well before he executed the affidavit that
the money recovered from the Winn Dixie store had no bank dye on it whatsoever.”110 In support
of this assertion, Petitioner argues that pictures taken by the Mandeville Police Department prove
that the money Petitioner used at the Winn Dixie store was not stained with red dye.111 However,
Petitioner does not point to any particular photograph to support this assertion. Moreover, even if
some of the money recovered was not covered in red dye, Petitioner has not shown that Detective
Downs “repeated the informant’s tip with knowledge that it was false or with reckless disregard
for the truth.”112 Therefore, Petitioner has not shown that an evidentiary hearing on this issue would
have been warranted under the Supreme Court’s holding in Franks.113
Third, Petitioner alleges that Detective Downs’ affidavit was misleading in that it failed to
reveal that the location where his vehicle was captured on the LPR system was located less than
three miles away from Petitioner’s residence.114 Petitioner has not demonstrated that this omission
was made intentionally or with a reckless disregard for the accuracy of the affidavit, and “negligent
omissions will not undermine the affidavit.”115 Therefore, Petitioner has not shown that an
evidentiary hearing on this issue would have been warranted under the Supreme Court’s holding
in Franks.116

109

Id.

110

Rec. Doc. 14 at 7.

111

Rec. Doc. 1-1 at 21.

112

Id.

113

Franks, 438 U.S. at 171–72.

114

Rec. Doc. 1-1 at 14.

115

Martin, 615 F.2d at 329.

116

Franks, 438 U.S. at 171–72.

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For these reasons, Petitioner has not established that the state trial court would have granted
Petitioner a hearing on the veracity of the affidavit or that Petitioner would have prevailed if such
a hearing were held. Therefore, Petitioner’s claim that his counsel was ineffective for failing to
challenge the affidavit must fail, because he has not demonstrated that counsel’s performance was
deficient or that it prejudiced his defense. Accordingly, the Court finds that the state court’s denial
of relief on this claim was not contrary to or an unreasonable application of clearly established
federal law.
B.

Entitlement to Evidentiary Hearing
Finally, Petitioner asserts that an evidentiary hearing is required if the Magistrate Judge

does not accept Petitioner’s factual allegation that the money recovered from Winn Dixie store
was not stained with red dye as true.117
As amended by the AEDPA, 28 U.S.C. § 2254 limits the power of a federal court to grant
a state prisoner’s petition for a writ of habeas corpus.118 As the United States Supreme Court
explained in Cullen v. Pinholster, the AEDPA sets “a difficult to meet and highly deferential
standard for evaluating state-court rulings, which demands that state-court decisions be given the
benefit of the doubt.”119 Therefore, review under Section 2254(d)(1) “is limited to the record that
was before the state court that adjudicated the claim on the merits.”120 In Smith v. Cain, the Fifth

Circuit held that the limitation on federal evidentiary hearings imposed by the Supreme Court in
Pinholster “does not apply once the district court concluded, solely on the basis of the state court

117

Rec. Doc. 14 at 8.

118

Cullen v. Pinholster, 563 U.S. 170, 181 (2011).

119

Id. (citations and quotation marks omitted).

120

Id. (citations and quotation marks omitted).

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record, that the state trial court unreasonably applied federal law. Because the state court decision
is no longer entitled to deference, the federal court is free to properly address the claim and grant
appropriate relief.”121 Here, the Court has concluded that the state court’s denial of relief on
Petitioner’s ineffective assistance of counsel claims was not contrary to or an unreasonable
application of federal law. Therefore, Petitioner is not entitled to an evidentiary hearing.
V. Conclusion
For the reasons stated above, Petitioner has not shown that the state court’s denial of relief
on his ineffective assistance of counsel claims was contrary to or an unreasonable application of
federal law. Moreover, Petitioner is not entitled to an evidentiary hearing. Accordingly,
IT IS HEREBY ORDERED that Petitioner’s objections are OVERRULED;
IT IS FURTHER ORDERED that the Court ADOPTS the Magistrate Judge’s
recommendation and Petitioner Larenzo Lomax’s petition for issuance for a writ of habeas corpus
pursuant to 28 U.S.C. § 2254 is DENIED and DISMISSED WITH PREJUDICE.
NEW ORLEANS, LOUISIANA, this 15th day of August, 2017.
____

__________________________________
NANNETTE JOLIVETTE BROWN
UNITED STATES DISTRICT JUDGE

121

Smith v. Cain, 708 F.3d 628, 635 (5th Cir. 2013).

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