Vance v. Kent et al

Filing 13

ORDER ADOPTING REPORT AND RECOMMENDATIONS 9 . For the reasons stated herein, IT IS HEREBY ORDERED that Petitioner's Objection to Magistrate's Report and Recommendation (Rec. Doc. 12) is OVERRULED and the Magistrate's Report and Re commendation (Rec. Doc. 9) is ADOPTED as the opinion of the district court. IT IS FURTHER ORDERED that the federal application for habeas corpus relief filed by Tevest A. Vance is DISMISSED WITH PREJUDICE. Signed by Judge Carl Barbier on 6/5/2019.(cg)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
TEVEST A. VANCE

CIVIL ACTION

VERSUS

NO. 18-5049

JASON KENT, WARDEN

SECTION: “J”(1)
ORDER

Before the Court is Petitioner Tevest A. Vance’s Objection Magistrate Judge’s
Report and Recommendation (Rec. Doc. 12). Petitioner objects to the Magistrate
Judge’s conclusions that two of his ineffective assistance of counsel claims are
meritless and another is procedurally barred. (See Rec. Doc. 9).
Petitioner’s first contention, which the Magistrate Judge emphatically
rejected, is that his trial counsel was ineffective for failing to seek a plea deal from
the State for negligent homicide instead of vehicular homicide. (Rec. Doc. 12 at 2). In
support of his argument that the State might have been willing to accept his plea to
a negligent homicide, Vance cites to State v. Liker, 250 So. 3d 1105, 1107 (La. App.
2d Cir. 2018), a case in which the trial court excluded the results of a blood alcohol
concentration (“BAC”) test because it was the product of an illegal search. Vance
makes no contention that the BAC test on which his conviction is based was similarly
subject to suppression. The cited case is inapposite to this matter.
Next, petitioner suggests his counsel was ineffective for failing to investigate
what Vance alleges truly caused him to kill his victim, he was looking at his cell phone

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while he was driving drunk. (Rec. Doc. 12 at 2). That Vance was looking down at his
cell phone while he was driving drunk is further evidence of his criminal recklessness;
it is not evidence that he was negligent but not reckless in killing his victim.
Furthermore, an act constitutes vehicular homicide if the death of the victim is
caused directly or “caused proximately . . . by an offender engaged in the operation of
. . . any motor vehicle” where the operator’s BAC is 0.08 or more and that condition
was a “contributing factor to the killing.” La. Stat. Ann. § 14:32.1. Accordingly,
Petitioner’s contention that his distracted driving was a mitigating factor worthy of
investigation is without merit.
Finally, Petitioner claims his counsel was ineffective for failing to seek a presentence investigative report, which would have shown he was suffering from
alcoholism at the commission of the crime. The Magistrate Judge found this claim to
be barred because it was not raised before the state courts, but Vance objects that
there is no bar because “the State, in their response in post conviction, brought up
Petitioner’s past criminal history of drugs and alcohol abuse,” thereby opening the
door to this ineffective assistance of counsel claim. (Rec. Doc. 12 at 4). In the Fifth
Circuit the State must waive the exhaustion defense expressly. Woodfox v. Cain, 609
F.3d 774, 792 (5th Cir. 2010). Petitioner suggests only that the State implicitly
waived exhaustion by referencing Petitioner’s substance abuse history at some point
in the state court proceedings; what the Petitioner describes is not a manifestation of

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a “‘clear and unambiguous intent to waive’ exhaustion.” Id. at 793 (citation omitted).
The procedural bar remains.
CONCLUSION
For the reasons stated above,
IT IS HEREBY ORDERED that Petitioner’s Objection to Magistrate’s Report
and Recommendation (Rec. Doc. 12) is OVERRULED and the Magistrate’s Report
and Recommendation (Rec. Doc. 9) is ADOPTED as the opinion of the district court.
IT IS FURTHER ORDERED that the federal application for habeas corpus
relief filed by Tevest A. Vance is DISMISSED WITH PREJUDICE.
New Orleans, Louisiana, this 5th day of June, 2019.

________________________________
CARL J. BARBIER
UNITED STATES DISTRICT COURT

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