Hicks v. Vannoy et al

Filing 12

ORDER AND REASONS - The Court ADOPTS Magistrate Judge North's 10 Report and Recommendation as its own and hereby DENIES Petitioner's application for relief. IT IS ORDERED that this matter be DISMISSED WITH PREJUDICE. Signed by Judge Susie Morgan on 2/19/2021.(sbs)

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UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
KENNETH E. HICKS, III,
Plaintiff

CIVIL ACTION

VERSUS

NO. 20-15

DARREL VANNOY,
Defendant

SECTION “E”

ORDER AND REASONS
Before the Court is a Report and Recommendation1 issued by Magistrate Judge
Michael North, recommending Petitioner Kenneth E. Hicks, III’s petition for Writ of
Habeas Corpus2 be dismissed with prejudice. Petitioner timely objected to the Magistrate
Judge’s Report and Recommendation.3 For the reasons that follow, the Court ADOPTS
the Report and Recommendation4 as its own and hereby DENIES Petitioner’s
application for relief.
BACKGROUND
Petitioner is an inmate currently incarcerated at the Louisiana State Penitentiary
in Angola, Louisiana. In January 2016, a jury found Petitioner guilty of second-degree
murder in connection with the shooting death of Anthony Young.5 At trial, Dontae Bond,
Petitioner’s nephew, testified that on February 20, 2013, he was at Alex’s Sports Bar when
he heard a gunshot and turned to see Petitioner holding a gun and a man on the ground.6
Mr. Bond identified the victim as his friend, Anthony Young, who was known as “Turk.”7

R. Doc. 10.
R. Doc. 3.
3 R. Doc. 11.
4 R. Doc. 10.
5 Id. at 1.
6 R. Doc. 11 at 2.
7 Id.
1

2

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Wilfred Lewis testified at trial that he also was at Alex’s Sports Bar that night, heard Turk’s
voice and another voice, and looked down for a moment. Mr. Lewis looked up only when
he heard a shot; he did not see the Petitioner shoot the victim. Mr. Lewis testified he saw
Turk fall and saw the Petitioner with a gun in his right hand, which Petitioner then put in
his pocket.8 Later, Mr. Lewis identified Petitioner from a photographic lineup.9 Laneka
Frank-Hicks, Petitioner’s wife, provided an alibi for Petitioner, testifying she arrived
home from work at 9:30 p.m. on the day of the murder and found Petitioner at home
watching television and eating. Shortly afterward, she took a bath, and she and Petitioner
went to sleep no later than 11:00 p.m. Around 2:30 a.m., she testified she was awakened
by a call from her daughter, who told her the police were looking for Petitioner.10
Petitioner maintains he is not guilty.11
Petitioner’s motion for a new trial was denied, and he was sentenced to life
imprisonment at hard labor without benefit of probation, parole, or suspension of
sentence.12
Petitioner filed a Motion for Appeal, which was granted. The Louisiana Fifth
Circuit Court of Appeal affirmed Petitioner’s conviction and sentence on February 8,
2017.13 The Louisiana Supreme Court denied review on November 13, 2017.14
On or about November 6, 2018, Petitioner submitted his application for postconviction relief to the state district court. On January 22, 2019, the state district court
denied his application for post-conviction relief. On March 13, 2019, the Louisiana Fifth

R. Doc. 10 at 5.
Id. at 5-6.
10 Id. at 6.
11 R. Doc. 11 at 6.
12 R. Doc. 10 at 1.
13 State v. Hicks, 213 So. 3d 458 (La. App. 5th Cir. 2017).
14 State v. Hicks, 230 So. 3d 205 (La. 2017).
8
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Circuit Court of Appeal denied relief on the merits and rejected his cumulative error claim
as not cognizable for review in an application for post-conviction relief. The Louisiana
Supreme Court denied his writ application on November 5, 2019.
On or about December 23, 2019, Petitioner filed the instant application for habeas
corpus relief.15 The State concedes the federal petition is timely. The claims presented
were properly exhausted on direct appeal.
ANALYSIS
A.

Standard of Review
In reviewing the Magistrate Judge’s Report and Recommendations, the Court

must conduct a de novo review of any of the Magistrate Judge’s conclusions to which a
party has specifically objected. As to the portions of the report that are not objected to,
the Court needs only to review those portions to determine whether they are clearly
erroneous or contrary to law.
Under the Anti-Terrorism and Effective Death Penalty Act of 1996 (“AEDPA”), a
federal court must defer to the decision of the state court on the merits of a pure question
of law or a mixed question of law and fact unless that decision “was contrary to, or
involved an unreasonable application of, clearly established Federal law, as determined
by the Supreme Court of the United States.” A state court's decision is contrary to clearly
established federal law if: “(1) the state court applies a rule that contradicts the governing
law announced in Supreme Court cases, or (2) the state court decides a case differently
than the Supreme Court did on a set of materially indistinguishable facts.” AEDPA
requires that a federal court “accord the state trial court substantial deference.”

15

R. Docs. 1, 3.

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B.

Exclusion of Evidence and Right to Present a Defense
Petitioner asserts the trial court improperly excluded evidence regarding the

victim’s record of criminal convictions (rap sheet) in violation of his right to present a
defense.16 The trial court based its ruling on La. C.E. Art. 404 regarding admissibility of
character evidence. The Petitioner’s objection was considered and rejected by the state
courts on direct appeal.17 The State argues the Louisiana Fifth Circuit Court of Appeal’s
decision that the victim’s criminal conviction record was irrelevant and, as a result,
inadmissible was correct because the Petitioner made neither a claim of self-defense nor
a claim of an overt act on the part of the victim at the time of the offense. Petitioner
disagrees, saying the exclusion was a violation of his constitutional right to present a
defense.18 The Louisiana Fifth Circuit Court of Appeal acknowledged Petitioner’s right to
present his defense, but pointed out this right does not require a trial court to permit the
introduction of evidence that is inadmissible, irrelevant, or has so little probative value
that its value is substantially outweighed by other legitimate considerations in the
administration of justice.19
The State is correct. Petitioner’s argument that the trial court misapplied state
evidentiary rules is not a cognizable claim on federal habeas review. Federal habeas
review is limited to errors of constitutional magnitude.20 Accordingly, the federal courts
do not review admissibility of evidence under state law. The only issue before the Court
on habeas review is whether the allegedly improper exclusion of evidence constituted a

R. Doc. 11 at 6.
R. Doc. 10 at 8.
18 Washington v. Texas, 388 U.S. 14, 19 (1967); State v. Gremillion, 542 So.2d 1074 (LA. 1989); State v.
Vigee, 518 So.2d 501 (LA. 1989).
19 State v. Lirette, 11-1167 (La. App. 5 Cir. 6/28/12).
20 Gonzales v. Thaler, 643 F.3d 425, 429 (5th Cir. 2011).
16
17

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denial of fundamental fairness under federal law.21 The evidentiary rule in this case was
applied to exclude highly prejudicial and largely immaterial evidence. As the state
appellate court explained, the character evidence in question was highly prejudicial and
had minimal probative value in Petitioner’s defense. Further, even without using the
victim’s criminal record, the defense was allowed to introduce evidence of the victim’s
prior drug involvement and argue the Petitioner’s theory that others had a motive to shoot
the victim thereby attempting to create reasonable doubt as to Petitioner’s guilt. The
Louisiana Fifth Circuit Court of Appeal relied on State v. Brown in which the defendant
argued the trial court erred by prohibiting him from presenting a full defense when it
excluded evidence of pertinent character traits of the victim and the victim’s criminal
record. The defendant argued this evidence could have shown that other people had a
motive to kill the victim.22 The appellate court found the trial court’s decision prohibiting
the defendant from admitting evidence regarding the victim’s criminal history did not
prevent the defendant from presenting a defense because the defendant failed to lay a
foundation sufficient to support the admission of the victim’s criminal record.23
In this case, application of the evidentiary rule to exclude evidence of the victim’s
criminal conviction history did not render the trial fundamentally unfair. The evidentiary
rule in this case was applied to exclude inadmissible and largely irrelevant evidence. The
evidence in question would have added little, if anything, to Petitioner’s defense. The trial
court’s rulings did not deprive him of the opportunity to make a meaningful defense. The
state court decision was not contrary to or an unreasonable application of federal law as

Little v. Johnson, 162 F.3d 855, 862 (5th Cir. 1998).
State v. Brown, 46,669 (La. App. 2 Cir. 2/29/12); 86 So.3d 726, writs denied, 12-0724 (La. 9/14/12).
23 Id.
21

22

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determined by the United States Supreme Court. This claim of error is not cognizable on
federal habeas review. The Court adopts the Magistrate Judge’s finding on this issue.
C.

Prosecutorial Misconduct
Petitioner asserts his right to due process and a fair trial was violated when the

prosecutor made improper remarks during closing argument.24 The Due Process Clause
of the Fourteenth Amendment guarantees the right to a fair trial, and prosecutors have a
“duty to refrain from improper methods calculated to produce a wrongful conviction.”25
In order to obtain habeas relief on a prosecutorial misconduct claim, a habeas petitioner
must show the state court’s rejection of his prosecutorial misconduct claim “was so
lacking in justification that there was an error well understood and comprehended in
existing law beyond any possibility for fairminded disagreement.”26 The Court must
determine whether the denial of relief was contrary to or an unreasonable application of
Supreme Court law.
For purposes of federal habeas review, a claim of prosecutorial conduct presents a
mixed question of law and fact.27 The Court must determine whether the denial of relief
was contrary to or an unreasonable application of Supreme Court precedents. Viewing the
prosecutor’s remark in the context of the entire record, Petitioner has not shown the statecourt determination was contrary to or an unreasonable application of clearly established
federal law. Petitioner does not rely on any federal jurisprudence in his objection, and
states only that the prosecutor in closing argument falsely claimed defense counsel
denigrated the victim’s life while, at the same time, the prosecutor vouched for the victim’s

R. Doc. 10 at 18.
Berger v. United States, 295 U.S. 78, 88 (1935).
26 Parker v. Matthews, 567 U.S. 37, 48 (2012) (quoting Harrington v. Richter, 562 U.S. 86, 103 (2011)).
27 Brazley v. Cain, 35 F.Appx. 390 (5th Cir. 2002).
24
25

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character by suggesting he was someone whose only mistake was to ingest cocaine on the
night of the incident.28 As described above, Petitioner introduced at trial, evidence of the
victim’s involvement with drugs and that he had cocaine in his system and on his person
at the time of his death. The prosecutor’s statement, although unnecessary, was not so
prejudicial as to render the trial fundamentally unfair. The state court determination
rejecting the prosecutorial misconduct claim was not contrary to or an unreasonable
application of clearly established Supreme Court law. The Court finds the Magistrate
Judge was correct and adopts the Magistrate Judge’s finding on this issue.
D.

Ineffective Assistance of Counsel
In claims three and four, Petitioner claims his trial counsel was ineffective because

Petitioner was denied the right to testify at trial and trial counsel failed to inform
Petitioner about a pretrial plea offer from the State.29 In order to prove ineffective
assistance of counsel, a petitioner must demonstrate both counsel’s performance was
deficient, and that the deficient performance prejudiced his defense.30 To prevail on the
prejudice prong of the Strickland test, Petitioner “must show that there is a reasonable
probability that, but for counsel’s unprofessional errors, the result of the proceeding
would have been different.”31
Petitioner’s claims were adjudicated on the merits in state court. As a result, habeas
relief is available only if that adjudication resulted in a decision that was contrary to, or
involved an unreasonable application of, clearly established federal law as determined by
the Supreme Court.32 A habeas petitioner has the burden of proving that he was denied

R. Doc. 11 at 9.
Id. at 26.
30 Strickland v. Washington, 466 U.S. 668 (1984).
31 Id. at 694.
32 28 U.S.C. § 2254(d); Harrington v. Richter, 562 U.S. 86 (2011).
28
29

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his constitutional right to counsel and to meet this burden, petitioner must do more than
simply state he wanted to testify and his attorney prohibited him from doing so.33
Petitioner raised ineffective assistance of counsel in his post-conviction relief
application and the state courts denied him relief on the merits.34 The Louisiana Supreme
Court determined Petitioner failed to show he received ineffective counsel under
Strickland. “The standards created by Strickland and § 2254(d) are both ‘highly
deferential, and when the two apply in tandem, review is ‘doubly’ so.” The Fifth Circuit
has held that where the record is “devoid of any evidence to corroborate [defendant’s]
conclusory assertion that he expressed his desire to testify but was prevented from doing
so by his attorney” the defendant has not demonstrated deficient performance by
counsel.35 In Petitioner’s objection, Petitioner did not offer any corroborating evidence
that he expressed his desire to testify but was prevented from doing so by his attorney.
Accordingly, Petitioner has not met the high bar set by the Supreme Court. Further,
Petitioner failed to show there is a reasonable probability that his testimony as to his
whereabouts, if he had been allowed to give it, would have had an impact on the outcome
of the trial.
Similarly, Petitioner failed to submit any evidence to substantiate his claim he was
not made aware of a pre-trial plea offer until after the trial. “To establish prejudice where
‘counsel’s deficient performance causes a plea offer to lapse or be rejected,’ a petitioner
‘must demonstrate a reasonable possibility that: (1) he would have accepted the plea offer
had he been afforded effective assistance of counsel; (2) the plea would have been entered

See United States v. Martinez, 181 F.3d 627, 628 (5th Cir. 1999); Turcios v. Dretke, 2005 WL 3263918 at
*6 (S.D. Tex. 2005).
34 R. Doc. 10 at 28.
35 Murray v. Vannoy, 806 F. Appx. 341 (5th Cir. 2020) (citing Strickland v. Washington, 466 U.S. 668, 687
(1984)).
33

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without prosecution canceling the offer or the trial court’s refusing to accept it; and (3)
the end result of the criminal process would have been more favorable by reason of a plea
to a lesser charge or a sentence of less prison time.’”36 Petitioner alleges co-counsel, Lisa
Parker, told his aunt that the State offered a plea of manslaughter. However, Petitioner
did not submit an affidavit from Ms. Parker or anyone else to confirm the existence of the
plea offer.37 In Petitioner’s objection, Petitioner still fails to attach any form of evidence
to show the plea offer existed, his aunt was made aware of it, or that the State was in fact
willing to accept a plea bargain to manslaughter.38 Petitioner has now shown his counsel
was ineffective on this basis.
Finally, Petitioner argues the cumulative effects of errors by his ineffective counsel
denied him a fair trial. The Fifth Circuit has recognized an independent claim based on
cumulative error is applicable in rare instances in which “(1) the individual errors
involved matters of constitutional dimensions rather than mere violations of state law;
(2) the errors were not procedurally defaulted for habeas purposes; and (3) the errors ‘so
infected the entire trial that the resulting conviction violates due process.’”39 However,
Petitioner “cannot cumulate non-meritorious claims” into a valid claim.40 In this case, the
Court found all of Petitioner’s claims to be meritless. Petitioner’s claims that the
cumulative errors of his trial counsel denied him a fair trial fails because he has not
established there were individual errors of constitutional dimension rather than more

King v. Davis, 898 F.3d 600, 605-06 (5th Cir. 2018) (quoting United States v. White, 715 F. App’x 436,
437-38 (5th Cir. 2018).
37 R. Doc. 10 at 30.
38 R. Doc. 11.
39 Derden v. McNeel, 938 F.2d 605, 610 (5th Cir. 1991) (quoting Cupp v. Naughten, 414 U.S. 141, 147 (1973)).
40 Norris v. Davis, 826 F.3d 821, 833 (5th Cir. 2016) (citing Hughes v. Dretke, 412 F.3d 582, 597 (5th Cir.
2005).
36

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violations of state law. The Court adopts the findings of the Magistrate Judge in the
Report and Recommendation.41
CONCLUSION
For the foregoing reasons, the Court ADOPTS the Magistrate Judge North’s
Report and Recommendation42 as its own and hereby DENIES Petitioner’s application
for relief.
IT IS ORDERED that the above-captioned matter be DISMISSED WITH
PREJUDICE.
New Orleans, Louisiana, this 19th day of February, 2021.
____________________ ________
SUSIE MORGAN
UNITED STATES DISTRICT JUDGE

41
42

R. Doc. 10.
Id.

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