Smith v. Louisiana State et al
ORDER AND REASONS ADOPTING 18 REPORT AND RECOMMENDATIONS: IT IS ORDERED that petitioner's objections are DENIED and the Report and Recommendation are ADOPTED as the opinion of the court, dismissing the instant habeas petition. Signed by Judge Ivan L.R. Lemelle on 6/3/2021.(pp)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
DARREL VANNOY, WARDEN
ORDER AND REASONS
Recommendation dismissing Terry Smith’s Petition for Habeas Corpus
Relief (Rec Doc. 18 at 1) and his Objections to the Report and
Recommendation Rec. Doc. 19. For the reasons discussed below,
IT IS ORDERED that petitioner’s objections are DENIED and the
Report and Recommendation are ADOPTED as the opinion of the court,
dismissing the instant habeas petition.
FACTUAL BACKGROUND AND PROCEDURAL HISTORY
Petitioner Terry Smith is an inmate currently incarcerated at
Louisiana State Penitentiary in Angola, Louisiana. Rec. Doc. 18 at
1. In March 2014, a grand jury returned a multicount indictment
charging Petitioner with two counts of aggravated rape, one count
of sexual battery, and three counts of aggravated incest. Id. at
1-2. These six counts involved the same victim, his minor stepdaughter and occurred at various times between 2004 and 2011. Id.
at 1; Rec. Doc. 15 at 1. Petitioner testified at trial and denied
all of the victim’s allegations by providing work-related alibis.
Rec. Doc. 15 at 3. Petitioner also admitted to having a previous
conviction of sexual battery involving his minor step-daughter.
In January 2016, a jury found petitioner guilty on all six
counts. Rec. Doc. 18 at 2. He motioned for a new trial and for
post-verdict judgment of acquittal, both of which the trial court
denied. Id. Petitioner Smith was sentenced to two terms of life
imprisonment for aggravated rape, fifty years for sexual battery,
and three terms of fifteen years each for aggravated incest, all
to be served consecutively and without benefit of probation, parole
or suspension of sentence. Id. The trial court denied petitioner’s
motion to reconsider the sentences. Id.
direct appeal to the Louisiana First Circuit Court of Appeals.
Rec. Doc. 18 at 2. The First Circuit affirmed the convictions and
the sentences for count one, two and three. Id. Additionally, the
First Circuit affirmed as amended the sentences on counts four,
five and six to delete the parole restriction. Id. The case was
remanded to the trial court to correct the minute entry and
commitment order to reflect the amended sentences. Id. Petitioner
did not file any other direct appeals. Id. Thus, his conviction
became final on May 20, 2017. Rec. Doc. 15 at 1.
On August 13, 2017, petitioner submitted an application for
post-conviction relief to the state district court claiming that
he was factually innocent of the offenses. Rec. Doc. 18 at 3. He
provided bank statements and employment records to establish his
whereabouts on the alleged dates of the incidents and to dispute
the victim’s testimony. Id. The State responded by asserting that
the attached documents were not newly discoverable nor were they
unavailable for trial. Id. Additionally, the State argued that the
claim of actual innocence is not a cognizable ground for postconviction relief. Id. On July 11, 2018, the state district court
denied petitioner’s application for post-conviction relief because
he failed to state a cognizable claim as articulated in State v.
Pierre, 14-0873 (La. 10/15/13), 125 So.3d 403 and State v. Conway,
01-2808 (La. 4/12/02), 816 So.2d 290. Rec. Doc. 18 at 3-4.
On August 13, 2018, petitioner filed an application for writ
of review in the Louisiana First Circuit Court of Appeals. Rec.
Doc. 15 1-2. The First Circuit denied his application on November
30, 2018. Id. Then, on December 17, 2018, petitioner filed an
application for writ of review with the Louisiana Supreme Court.
Rec. Dec. 15 at 2. On October 1, 2019, the court denied his related
application for supervisory writ of review because he failed to
show that he is factually innocent under the Conway standard. Rec.
Doc. 18 at 4.
On November 14, 2019, petitioner filed a federal application
for habeas corpus relief based on two grounds for relief, claiming
factually innocent person in prison. Rec. Doc. 18 at 4. On January
23, 2020, the State filed a response conceding timeliness and
exhaustion but argued that the claim of actual innocence lacks
merit. Rec. Doc. 15 at 5-6. On May 15, 2020, Magistrate North
prejudice. Rec. Doc. 18 at 14. On May 28, 2020, petitioner timely
objected to the latter recommendation. Rec. Doc. 19.
For pure questions of fact, factual findings are presumed to
be correct. See 28 U.S.C. § 2254(e)(1) (“In a proceeding instituted
by an application for a writ of habeas corpus . . . a determination
of a factual issue made by a State court shall be presumed to be
presumption by clear and convincing evidence. See id. However, a
writ of habeas corpus may be granted if the adjudication of the
claim on the merits “resulted in a decision that was based on an
unreasonable determination of the facts in light of the evidence
presented in the State court proceeding.” 28 U.S.C. § 2254(d)(2);
Hankton v. Boutte, 2018 U.S. Dist. LEXIS 126899 *1, *10 (E.D. La
June 29, 2018).
For pure questions of law and mixed questions of law and fact,
a state court’s determination is reviewed under § 2254(d)(1). See
Hill v. Johnson, 210 F.3d 481, 485 (5th Cir. 2000). Specifically,
deference unless the decision was either contrary to federal law
or involved an unreasonable application of federal law.
U.S.C. § 2254(d)(1); Hill, 210 F.3d at 485.
A state court’s decision is contrary to federal law if (1)
the state court applies a rule different from the governing law
set forth in the Supreme Court’s cases or (2) the state court
decides a case differently than the Supreme Court when there are
“materially indistinguishable facts.” See Poree, 866 F.3d at 246;
Wooten v. Thaler, 598 F.3d 215, 218 (5th Cir. 2010).
The “unreasonableness” of a state court’s determination is
not about whether it was incorrect but rather if it was objectively
unreasonable. Boyer v. Vannoy, 863 F.3d 428, 454 (5th Cir. 2017).
The court in Boyer stated that the determination must not be
“merely wrong” and that “clear error” will not be enough to
overturn a state court’s determination. See id; see also Puckett
v. Epps, 641 F.3d 657, 663 (5th Cir. 2011) (finding an incorrect
Thus, even if a state court incorrectly applies
Supreme Court precedent, that mistake alone, does not mean that a
petitioner is entitled to habeas relief. See Puckett, 641 F.3d at
The Fifth Circuit does not recognize free standing claims of
actual innocence on federal habeas review. Furthermore, even if a
claim of actual innocence was recognized on federal habeas review,
petitioner Smith did not satisfy the rigorous standard required to
prove actual innocence.
First, Smith claims that the state courts incorrectly applied
the Conway standard when analyzing his actual innocence claim
because the Louisiana Supreme Court states in Pierre that it has
never adopted this standard. Rec. Doc. 18 at 9; Rec. Doc. 19 at 3.
innocence claims. Id.
In Pierre, the Louisiana Supreme Court explained that it has
yet to hold that actual innocence claims not based on DNA evidence
are cognizable in application for post-conviction relief. See
Pierre, 14-0873 at 6, 125 So.3d at 407. However, the Louisiana
Supreme Court did recognize this type of claim in Conway. Id.
Assuming an actual innocence claim is cognizable in an application
for post-conviction relief, the court stated that the claim “must
necessarily involve new, material, noncumulative and conclusive
evidence which meets an extraordinarily high standard, and which
undermines the prosecution’s entire case.” Id (internal quotes
Here, the Louisiana Supreme Court reviewed and denied the
petitioner’s application because his evidence did not meet the
Conway standard. Rec. Doc. 18 at 4. However, this Court “is limited
to deciding whether a conviction violated the Constitution, laws,
or treaties of the United States.” Estelle v. McGuire, 502 U.S.
62, 68. Federal Courts do not “reexamine state court determinations
on state-law questions.” Id. at 67-68. Therefore, we will not
examine whether the Louisiana Supreme Court was correct in applying
the Conway standard.
Second, the United States Supreme Court has yet to recognize
a claim of actual innocence as an independent ground for relief in
federal habeas corpus proceedings. See Herrera v. Collins, 506
U.S. 390, 400 (1993). Thus, the Fifth Circuit does not normally
recognize this type of claim. See Kinsel v. Cain, 647 F.3d 265,
270 n. 20 (5th Cir. 2011); see also Keil v. McCain, Civ. Action
recommendation adopted 2019 WL 2437177 (E.D. La. June 11, 2019);
Brown v. Vannoy, Civ. Action 19-9121, 2019 WL 2396793, at *1-2
(E.D. La. May 20, 2019), recommendation adopted 2019 WL 2395533
(E.D. La. June 6, 2019), aff’d 2020 WL 1778269 (5th Cir. 2020).
Therefore, we decline relief on the actual innocence claim.
recognized, petitioner did not satisfy the standard to prove his
actual innocence. In order to establish an actual innocence claim,
scientific evidence, trustworthy eyewitness accounts, or critical
physical evidence—that was not presented at trial.” Schlup v. Delo,
513 U.S. 298, 324 (1995). Additionally, “[e]vidence does not
qualify as ‘new’ under the Schlup actual-innocence standard if it
was always within the reach of petitioner’s personal knowledge or
reasonable investigation.” Tyler v. Davis, 768 Fed. Appx. 264, 265
applicant must show “that in light of the new evidence, no juror,
acting reasonably, would have voted to find him guilty beyond a
reasonable doubt.” Id. (citing McQuiggin v. Perkins, 569 U.S. 383,
Petitioner did not meet this standard. He failed to support
his actual innocence claim with new evidence. Instead, he submitted
bank statements and employment records that he conceded were
readily available at trial. Rec. Doc. 18 at 12. However, he advises
his counsel chose not to introduce the records at trial. Id.
In Floyd v. Vannoy, the United States Fifth Circuit held that
fingerprint-comparison results. 1 894 F.3d 143, 155 (5th Cir. 1991).
These results were readily available at the bench trial but were
withheld from the judge, defense and the prosecution. Id. at 156.
The Fifth Circuit found that the fingerprint-comparison results
were new evidence because it was not presented at the bench trial
and remained unknown to the judge and the parties. Id.
Floy established his actual innocence and thus allowed the Fifth Circuit to
consider his time-barred Brady claims.
This case differs tremendously from Floyd. Unlike in Floyd
where neither party had knowledge of the evidence, the defense in
this case had knowledge of the petitioner’s employment and bank
records. Rec Doc. 15 at 12. Because these records were not unknown
to the defense, the records are not considered new evidence.
Petitioner asserts that the records would have corroborated
his alibi testimony regarding his whereabouts on some of the dates
that the incidents occurred. Id. Petitioner testified at trial
that he was out of state for work during the dates of the alleged
incidents. Id. Petitioner claims that these records, if presented
to the jury, would have discredited the victim’s testimony. Id. To
satisfy the Schlup actual-innocence standard, petitioner must show
that in light of these records no reasonably juror would have found
him guilty beyond a reasonable doubt.
The records do not rise to the high standard of proving
recalling the exact dates when the various incidents
occurred. Id. at 13. The
Furthermore, the victim was able to recall specific details of
the incidents that were corroborated by the other witness. Rec.
Doc. 18 at 13. The discrepancies in the dates did not diminish
the fact that the incidents with petitioner Smith took place.
Because the supporting evidence is not considered new and it fails
to meet the Schlup actual-innocence standard, petitioner fails
to establish an actual innocence claim.
New Orleans, Louisiana, this 3rd day of June 2021
SENIOR UNITED STATES DISTRICT JUDGE
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