Weary v. Vannoy et al

Filing 18

ORDER AND REASONS - The Court APPROVES the Magistrate Judge's Report and Recommendations 14 and ADOPTS it as its opinion in this matter. ORDERED that Andrew Weary's Petition for Writ of Habeas Corpus is hereby DENIED and DISMISSED WITH PREJUDICE. Signed by Judge Susie Morgan on 2/22/19.(sbs)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
ANDREW WEARY,
Petitioner

CIVIL DOCKET

VERSUS

NO. 18-3602

DARREL VANNOY.
Respondent

SECTION: “E” (4)

ORDER AND REASONS
Before the Court is Petitioner Andrew Weary’s Petition for Writ of Habeas Corpus
pursuant to 28 U.S.C. § 2254. 1 On June 20, 2018, the State filed a response to the
Petition. 2 Petitioner filed an Opposition to the State’s response on June 29, 2018.3 This
matter was referred to the United States Magistrate Judge, who issued a Report and
Recommendation on September 14, 2018.

4

Magistrate Judge Karen Wells Roby

recommended that the Petition be dismissed with prejudice. 5 On October 2, 2018, this
Court granted Petitioner’s Motion for Extension of Time to File a Response/Reply to the
Report and Recommendation, allowing Petitioner until October 20, 2018 to file any
objection. 6Petitioner objected to the Magistrate Judge’s Report and Recommendation on
October 22, 2018. 7 For the reasons that follow, the Court ADOPTS the Report and
Recommendation as its own, and hereby DISMISSES the Petition with prejudice.

R. Doc. 1; R. Doc. 9.
R. Doc. 12.
3 R. Doc. 13.
4 R. Doc. 14.
5 Id.
6 R. Doc. 16.
7 R. Doc. 17.
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BACKGROUND
Petitioner Andrew Weary is currently incarcerated in the Louisiana State
Penitentiary in Angola, Louisiana. 8 On August 30, 2000, Petitioner was charged by bill of
information with one count of armed robbery and one count of attempted first-degree
murder. 9 Petitioner pled not guilty and was found guilty of both counts after a jury trial. 10
Before sentencing, Petitioner was adjudicated a second-felony habitual offender based on
his armed robbery conviction and a prior felony conviction. 11 On May 9, 2001, Petitioner
was sentenced to serve seventy-five years in prison on the armed robbery conviction. 12 At
that time, he was not sentenced on the attempted first-degree murder conviction.
Petitioner appealed his sentence on the armed robbery conviction, and on May 10, 2002,
the Louisiana First Circuit Court of Appeals affirmed. 13 Sua sponte, the Louisiana First
Circuit remanded the matter for sentencing on the attempted first-degree murder
conviction. 14 On July 23, 2002, Petitioner was sentenced to serve twenty-five years in
prison for attempted first-degree murder, to run concurrently with his sentence for armed
robbery. 15
Following several years of direct appeal of his sentence and post-conviction review
in state court, Petitioner filed a Petition for a Writ of Habeas Corpus in federal court (Civil
Action No. 10-1739 “C”(4)). On February 22, 2012, Judge Berrigan granted the petition

R. Doc. 1.
State. Rec., Vol. 1 of 8, p. 2, Bill of Information, 8/30/00.
10 State. Rec., Vol. 1 of 5, Trial Minutes, 12/4/00; Trial Minutes, 12/5/00; Trial Minutes, 12/6/00; Jury
Verdict (Count 1), 12/6/00; Jury Verdict (Count 2), 12/6/00; Trial Transcript, 12/4/00; State Rec., Vol. 2
of 8, Trial Transcript, 12/5/00; Trial Transcript, 12/6/00.
11 State Rec., Vol. 1 of 8, p. 169-70, Multiple Bill, 1/25/01; Multiple Offender Hearing Minutes.
12 State Rec., Vol. 1 of 8, p. 170 Hearing Transcript, 5/9/01.
13 State v. Weary, 826 So.2d at 654; 1st Cir. Opinion, 2001-KA-2286, 5/10/02.
14 Id.
15 State Rec., Vol. 1 of 5, Sentencing Minutes, 7/23/02; see also, Minute Entry, 8/16/04; State Rec., Vol. 3
of 5, Sentencing Transcript, 7/23/02.
8
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on double jeopardy grounds and ordered that the state trial court (1) vacate both prior
sentences, (2) vacate the conviction for one of the offenses, and (3) resentence Weary on
the remaining offense. 16
In response to that order, on May 23, 2012 the state trial court vacated both prior
sentences, accepted the prosecutor’s entry of a nolle prosequi on the attempted firstdegree murder charge, and resentenced Petitioner on the armed robbery charge to serve
seventy-five years in prison. 17 Weary filed a post-judgment motion in the initial federal
habeas case, arguing that the State failed to comply with the mandate because the nolle
prosequi was not the same as vacating the conviction. Judge Berrigan ordered the state
trial court to comply with the prior mandate and allowed additional time to do so. 18
On September 16, 2013, the state trial court held a hearing to assure its compliance
with the federal court’s directive. 19 The state trial court vacated any prior sentence and
conviction with respect to the attempted first-degree murder charge and vacated any
sentence with respect to the armed robbery conviction. The court resentenced Petitioner
to serve seventy-five years in prison on the armed robbery conviction. 20 On April 24,
2015, the Louisiana First Circuit Court of Appeal affirmed the September 16, 2013
sentence and addressed the merits of Petitioner’s pro se claims that he was denied
effective assistance of counsel and received an excessive sentence. 21 The Louisiana
Supreme Court denied relief without comment on April 8, 2016. 22

Weary v. Cain, No. 10-1793, 2012 WL 601862, at *1 (E.D. La. Feb. 22, 2012).
State Rec., Vol. 7 of 8, pp. 1415-1424, Transcript of Proceedings 5/23/12.
18 Weary v. Cain, 10-1793, 2013 WL 4499021, at *7 (E.D. La. Aug. 19, 2013).
19 State Rec., Vol. 7 of 8, pp. 1429-47, Transcript of Proceedings 9/16/13, Minute Entry 9/16/13.
20 State Rec., Vol. 7 of 8, pp. 1429-47, Transcript of Proceedings 9/16/13, Minute Entry 9/16/13.
21 State v. Weary, 14-1706 (La. App. 1 Cir. 4/24/15), 2015 WL 1893258, at *7; State Rec., Vol. 7 of 8, p. 1495.
22 State v. Weary, 15-1030 (La. 4/08/16); State Rec., Vol. 7 of 8, p. 1538.
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Petitioner filed an application for post-conviction relief on June 6, 2016, assigning
no errors and requesting exhaustion. 23 The Louisiana First Circuit Court of Appeals
denied relief on September 22, 2016; 24 the Louisiana Supreme Court denied relief on
February 2, 2018. 25 Petitioner timely filed the instant habeas Petition, claiming he was
constructively denied the right to counsel at the September 16, 2013 hearing and his
sentence is unconstitutionally excessive. 26 The State concedes the Petition is timely and
the claims are exhausted. 27
The Magistrate Judge recommended the Petition be dismissed with prejudice
because the Petitioner’s claims lack merit. The magistrate concluded that (1) Petitioner
was not actually or constructively denied the right to counsel because he had appointed
counsel present at the September 16, 2013 hearing and his counsel participated in
discussions with the judge and (2) the sentence imposed in September 2013 is not
excessive or vindictive because he received the same sentence as his original sentence on
that conviction, with credit for time served. 28 Petitioner objected to the report and
recommendation, arguing that he was denied counsel at the September re-sentencing,
which was a critical stage of the proceedings, and that the state trial court violated Judge
Berrigan’s mandate because it did not re-sentence him on the armed robbery
conviction. 29

State Rec., Vol. 4 of 8, p. 893-898, Application for Post-Conviction Relief 6/6/16.
State Rec., Vol. 8 of 8, p. 1604, State v. Weary, 16-0981 (La. App. 1 Cir. 9/22/16).
25 State Rec., Vol. 8 of 8, p. 1613-14, State ex rel Weary v. State, 16-1907 (La. 2/09/18), 235 So.3d 1099.
26 R. Doc. 4. This is not a second or successive petition because it challenges the circumstances of his
resentencing. See Magwood v. Patterson, 561 U.S. 320, 341-42 (2010).
27 R. Doc. 12 at 7.
28 R. Doc. 14.
29 R. Doc. 17.
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STANDARD OF REVIEW
In reviewing the Magistrate Judge’s Report and Recommendation, the Court
must conduct a de novo review of any of the Magistrate Judge’s conclusions to which a
party has specifically objected. 30
In reviewing a state court’s decision on the merits of a claim, the state court’s
determination of questions of fact are afforded deference and will not be overturned
unless they were based on an unreasonable determination of the facts in light of the
evidence presented in the state court proceeding. 31 The state court’s determination of
mixed questions of law and fact will not be overturned unless the decision is “contrary to
or involves an unreasonable application of clearly established federal law.” 32
LAW AND ANALYSIS
Upon de novo review of the complaint, the record, the Magistrate Judge’s Report
and Recommendation, and Petitioner’s objections to the Magistrate Judge’s Report and
Recommendation, this Court agrees with the Magistrate Judge that Petitioner was not
constructively denied counsel and did not receive ineffective assistance of counsel at the
September 16, 2013 hearing and that Petitioner’s sentence for armed robbery was not
excessive or vindictive.
Petitioner appealed his new sentence to the Louisiana First Circuit Court of
Appeals, presenting the same claims he now raises in his federal habeas petition. The
Louisiana First Circuit Court of Appeals reviewed Petitioner’s claims on the merits and

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.”).
31 28 U.S.C. § 2254(d)(2); see Hill v. Johnson, 210 F.3d 481, 485 (5th Cir. 2000).
32 28 U.S.C. § 2254(d)(1); Hill, 210 F.3d at 485.
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concluded that Petitioner did not receive ineffective assistance of counsel, was not
constructively denied counsel, and did not receive an unconstitutionally excessive
sentence. 33 With respect to Petitioner’s ineffective assistance of counsel and constructive
denial of counsel claims, the state court analyzed the claim under the Supreme Court’s
guidance in Strickland v. Washington and concluded that Petitioner was afforded counsel
at the September 16, 2013 hearing and could not establish prejudice from his counsel’s
performance at the September 16, 2013 hearing. 34 With respect to Petitioner’s excessive
sentence claim, the state court concluded that the sentence was not excessive because the
district court properly vacated the defendant’s conviction and sentence for attempted first
degree murder. 35
This Court’s review of the record confirms that Petitioner had appointed counsel
present at the September 16, 2013 hearing and that his counsel participated in discussions
with the judge at that hearing. 36 Petitioner is unable to demonstrate any prejudice from
any alleged deficient performance by counsel. As a result, the state court’s denial of relief
on this issue was not contrary to or an unreasonable application of federal law, and
Petitioner is not entitled to relief on this claim.
This Court’s review of the record confirms that the sentence imposed on September
13, 2016 was not unconstitutionally excessive or vindictive. While the federal court
mandated that one of Petitioner’s convictions and sentences be vacated, his adjudication
as a second-felony habitual offender, based on his armed robbery conviction and a prior

State v. Weary, 14-1706 (La. App. 1 Cir. 4/24/15), 2015 WL 1893258; State Rec., Vol. 8 of 8, p. 1597-1602.
State v. Weary, 14-1706 (La. App. 1 Cir. 4/24/15), 2015 WL 1893258, at *4-5; State Rec., Vol. 8 of 8, p.
1597-1600.
35 State v. Weary, 14-1706 (La. App. 1 Cir. 4/24/15), 2015 WL 1893258, at *6; State Rec., Vol. 8 of 8, p.
1600-02.
36 State Rec., Vol. 7 of 8, Transcript of Proceedings 9/16/13, Minute Entry 9/16/13 pp. 1429-47.
33

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felony conviction, remained. Weary received the same sentence on the armed robbery
conviction that was imposed prior to the grant of federal habeas relief and received credit
for time served. As a result, the state court’s denial of relief on this issue was not contrary
to or an unreasonable application of federal law, and Petitioner is not entitled to relief on
this claim.
CONCLUSION
For the reasons above, the Court APPROVES the Magistrate Judge’s Report and
Recommendations and ADOPTS it as its opinion in this matter. 37
IT IS ORDERED that Petitioner Andrew Weary’s 28 U.S.C. § 2254 Petition for
Writ of Habeas Corpus is hereby DENIED and DISMISSED WITH PREJUDICE. 38
New Orleans, Louisiana, this 22nd day of February, 2019.
________________________________
SUSIE MORGAN
UNITED STATES DISTRICT JUDGE

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38

R. Doc. 15.
R. Doc. 1.

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