Bell v. Vannoy

Filing 7

MEMORANDUM ORDER: Directing plaintiff to amend petition. Pro Se Response due by 10/9/2020. Signed by Magistrate Judge Joseph H L Perez-Montes on 9/9/2020. (crt,Haik, K)

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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF LOUISIANA
ALEXANDRIA DIVISION
WILLIE BELL JR.,
Petitioner

CIVIL DOCKET NO. 1:20-CV-858-P

VERSUS

JUDGE JOSEPH

WARDEN,
Respondent

MAGISTRATE JUDGE PEREZ-MONTES

MEMORANDUM ORDER
Before the Court is a Petition for Writ of Habeas Corpus under 28 U.S.C. §
2254 (ECF No. 1) filed by pro se Petitioner Willie Bell, Jr. (“Bell”) (#385817). Bell is
an inmate in the custody of the Louisiana Department of Corrections, incarcerated at
the Louisiana State Penitentiary in in Angola, Louisiana.

Bell challenges his

conviction and sentence imposed in the Tenth Judicial District Court, Natchitoches
Parish.
Because Bell has not shown that his claims were properly exhausted or that
he meets the requirements for bringing a second or successive § 2254 Petition, Bell
must AMEND his Petition (ECF No. 1).
I.

Background
Bell alleges that he was convicted of second-degree murder in 1997 and

sentenced to life imprisonment. ECF No. 1-2 at 1. The conviction and sentence were
affirmed, and the Louisiana Supreme Court denied writs. State v. Bell, 98-3112 (La.
4/23/99); 740 So. 2d 649.

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Bell filed an application for post-conviction relief alleging that counsel was
ineffective for failing to file a motion to quash the indictment. See Bell v. Warden,
1:02-CV-1467, W.D. La., ECF No. 1. The application was denied. See id. The
Louisiana Third Circuit Court of Appeal and Louisiana Supreme Court denied writs.

See id. at 28-29.
Bell then filed a Petition for Writ of Habeas Corpus under § 2254 arguing that
the evidence was insufficient to convict him; the indictment was defective; and
counsel was ineffective. See Bell v. Warden, 1:02-CV-1467, W.D. La., ECF No. 1. The
Petition was denied and dismissed as untimely. Id. at ECF No. 10.
Bell alleges that he filed another application for post-conviction relief in the
trial court following the United States Supreme Court’s ruling in McCoy v. Louisiana,
138 S. Ct. 1500 (2018). ECF No. 1-2 at 1. Bell argued that his Sixth Amendment
right to counsel was violated when his attorney conceded his guilt over his objection.
Bell alleges that the district court denied the application finding that McCoy was
distinguishable from his case. ECF No. 1-2 at 1. According to Bell, the appellate
court and Louisiana Supreme Court both denied writs. See id.
II.

Instructions to Amend
The Antiterrorism and Effective Death Penalty Act (“AEDPA”), 28 U.S.C. §

2244(b), prohibits repeated, abusive challenges to the same conviction.

Section

2244(b) places the following restrictions on “second or successive” applications for
habeas corpus relief:

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(1) A claim presented in a second or successive habeas corpus application
under section 2254 that was presented in a prior application shall be
dismissed.
(2) A claim presented in a second or successive habeas corpus application
under section 2254 that was not presented in a prior application shall
be dismissed unless—
(A) the applicant must show that the claim relies on a new rule of
constitutional law, made retroactive to cases on collateral review
by the Supreme Court, that was previously unavailable; or
(B) (i) the factual predicate for the claim could not have been
discovered previously through the exercise of due diligence; and
(ii) the facts underlying the claim, if proven and viewed in light of
the evidence as a whole, would be sufficient to establish by clear
and convincing evidence that, but for constitutional error, no
reasonable factfinder would have found the applicant guilty of the
underlying offense.
28 U.S.C. § 2244(b).
Before a second or successive application permitted by § 2244 can be filed in
the district court, the applicant must move in the appropriate court of appeals for an
order authorizing the district court to consider the application.

28 U.S.C. §

2244(d)(3)(A).
According to the Court’s records, Bell previously filed a § 2254 Petition, which
was denied and dismissed as time-barred. Therefore, Bell must amend his Petition
to state whether he obtained authorization to file another § 2254 Petition from the
United States Court of Appeals for the Fifth Circuit.
If Bell obtained authorization, Bell must provide a copy of that authorization.
If Bell argues that authorization is not required, he must state why. Bell must also
provide a copy of his most recent application for post-conviction relief allegedly filed

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on October 12, 2018, as well as the trial court’s ruling denying relief on November 7,
2018. ECF No. 1-2 at 1, 3. Finally, Bell must provide a copy of the subsequent writ
denial by the Louisiana Third Circuit Court of Appeal, KH 18-00972.
IT IS ORDERED that Bell AMEND his Petition (ECF No. 1) within thirty (30)
days of the filing of this Order to provide the information outlined above.
Failure to comply with this Order may result in dismissal of this action under
Rule 41(b) or 16(f) of the Federal Rules of Civil Procedure. Petitioner is further
required to notify the Court of any change in his address under Rule 41.3 of the Local
Rules for the Western District of Louisiana.
SIGNED on Wednesday, September 9, 2020.

__________________________________________
JOSEPH H.L. PEREZ-MONTES
UNITED STATES MAGISTRATE JUDGE

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