Bilbo v. Vannoy

Filing 7

MEMORANDUM ORDER: Directing plaintiff to amend petition. Pro Se Response due by 11/13/2017. Signed by Magistrate Judge Kathleen Kay on 10/4/2017. (crt,Haik, K)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF LOUISIANA
LAKE CHARLES DIVISION

KENNETH RAY BILBO, II
DOC # 355823

:

DOCKET NO. 17-cv-706
SECTION P

VERSUS

:

JUDGE TRIMBLE

DARREL VANNOY

:

MAGISTRATE JUDGE KAY

MEMORANDUM ORDER

Before the court is an application for writ of habeas corpus filed pursuant to 28 U.S.C. § 2254 by
pro se petitioner, Kenneth Ray Bilbo, II (“Bilbo”). Bilbo is an inmate in the custody of the Louisiana
Department of Public Safety and Corrections and is incarcerated at Louisiana State Penitentiary in Angola,
Louisiana.
This matter was referred to the undersigned for review, report, and recommendation in accordance
with the provisions of 28 U.S.C. § 636 and the standing orders of the court.
I.
BACKGROUND
On September 18, 2009, following a jury trial in the Fourteenth Judicial District Court in Calcasieu
Parish, Louisiana, Bilbo was found guilty of second degree murder. See State v. Bilbo, No. 10-KA-518,
2010 WL 2676276, at *1 (La. Ct. App. 3d Cir. Jun. 28, 2010) (Appellate Brief—State of Louisiana). Bilbo
filed a motion for new trial on September 24, 2009, which was denied on November 4, 2009. See State v.
Bilbo, No. 10-518, 2010 WL 2256641, at *5 (La. Ct. App. 3d Cir. May 24, 2010) (Appellate Brief—
Bilbo). On November 6, 2009, the court imposed a life sentence without the benefit of probation, parole,
or suspension or sentence. Id. On November 16, 2009, Bilbo filed a motion for appeal. Id. Bilbo’s appellate

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brief, filed in the Third Circuit via counsel on May 24, 2010, raised a single assignment of error: that the
evidence was not sufficient to convict him of the charge of Second Degree murder, nor any other verdict
responsive thereto. Id. at *4. On December 8, 2010, the Third Circuit affirmed Bilbo’s conviction and
sentence, denying his claim on the merits. State v. Bilbo, No. 10-518, 55 So.3d 1043 (La. Ct. App. 3d Cir.
2010); see State v. Bilbo, No. 10-518, 2010 WL 5027174 (La. Ct. App. 3d Cir. Dec. 8, 2010) (unpublished
opinion). Bilbo states that he filed an untimely motion for rehearing on January 10, 2011, which was
denied by the Third Circuit. Doc. 1, att. 2, p. 2. He does not state the date that he sought further review
with the Louisiana Supreme Court. Doc. 1, p. 2. However, the Louisiana Supreme Court denied his writ
of certiorari and/or review in a one-word opinion on September 23, 2011. State v. Bilbo, 69 So.3d 1155
(La. 2011). Bilbo did not seek further review in the United States Supreme Court. Doc. 1, p. 3.
Bilbo states that he filed an application for post-conviction relief (“PCR”) in the Fourteenth
Judicial District Court on December 28, 2011. Doc. 1, att. 2, p. 2. He claims that he filed a supplement to
the pending PCR on September 3, 2013. Id. He contends that the trial court did not rule on his PCR,
necessitating his May 5, 2014, filing for a writ of mandamus in the Third Circuit. Id. at 2–3. Bilbo states
that the Third Circuit granted the mandamus on October 29, 2014, ordering the trial court to rule on his
PCR. Id. at 3. He claims that the Fourteenth Judicial District denied his PCR on November 20, 2014, but
that he did not receive a certified copy of the document until January 6 or 9, 2015. Id. He further contends
that on January 12, 2015, he filed a timely notice of intent to seek writs, which was denied on January 27,
2015. Id. He states that he received and signed for the denial on February 9, 2015. Id.
Bilbo states that the Third Circuit denied his application for a writ of review on November 5, 2015.
Id. The Louisiana Supreme Court denied his writ application on April 7, 2017, but he claims that he did
not receive the denial until April 10, 2017. The opinion by the Louisiana Supreme Court states that Bilbo
failed to show that he received ineffective assistance of counsel and that he also failed to carry his burden

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of proof post-conviction with regard to his claim that the district court erred in handling the jurors’ requests
during deliberations. State ex rel. Bilbo v. State, No. 2015-KH-2177 (La. 2017); doc. 1, att. 3, p. 5–7. The
opinion also states that he fully litigated his application for post-conviction relief in state court. Id. at 6.
The opinion lists the Third Circuit case number as No. 15-KH-651. Id. at 5.
Bilbo filed the instant application for writ of habeas corpus on May 30, 2017. Herein, he alleges
that the evidence was insufficient to support that a murder took place on the night that he was seen with
the victim and that another suspect confessed to the crime. Doc. 1, p. 5. He also claims that his counsel
was ineffective prior to and during trial in that counsel did not allow him to testify on his own behalf. Doc.
1, att. 2, pp. 9–10. In his “supplemental claim one” he argues that his Sixth and Fourteenth Amendment
rights to due process and a fair trial were violated when the trial judge refused to allow the jury to review
witness statement and testimony regarding manslaughter. Id. at 14. In his “supplemental claim two” Bilbo
maintains that his trial counsel was ineffective in failing to charge the jury on the lesser offense of
manslaughter. Id. at 15.
II.
LEGAL STANDARDS
Before reaching the merits of a habeas claim, a preliminary review of the pleadings and exhibits
is conducted in order to determine whether the petitioner has exhausted all available state remedies prior
to filing his petition in federal court; whether the petition is time-barred by the provisions of 28 U.S.C. §
2244(d)(1); and whether any of the claims raised are subject to the procedural default doctrine.
A. Exhaustion
The federal habeas corpus statute and decades of federal jurisprudence require a petitioner seeking
federal habeas corpus relief to exhaust all available state court remedies prior to filing his federal
petition. 28 U.S.C. § 2254(b)(1); e.g., Whitehead v. Johnson, 157 F.3d 384, 387 (5th Cir. 1998). This is a
matter of comity. Ex parte Royall, 6 S.Ct. 734, 740–41 (1886). In order to satisfy the exhaustion
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requirement, the petitioner must have “fairly presented” the substance of his federal constitutional claims
to the state courts “in a procedurally proper manner according to the rules of the state courts.” Wilder v.
Cockrell, 274 F.3d 255, 259 (5th Cir. 2001); Dupuy v. Butler, 837 F.2d 699, 702 (5th Cir. 1988). Each
claim must be presented to the state's highest court, even when review by that court is discretionary. E.g.,
Wilson v. Foti, 832 F.2d 891, 893–94 (5th Cir. 1987). Exhaustion is not satisfied if the petitioner presents
new legal theories or entirely new factual claims in support of his federal habeas petition. Brown v. Estelle,
701 F.2d 494, 495 (5th Cir. 1983).
In Louisiana the highest court is the Louisiana Supreme Court. See LSA–Const. art. 5, §
5(a). Thus, in order for a Louisiana prisoner to have exhausted his state court remedies he must have fairly
presented the substance of his federal constitutional claims to the Louisiana Supreme Court in a
procedurally correct manner, supported by the legal theories and factual allegations that he raises
now. Nobles v. Johnson, 127 F.3d 409, 420 (5th Cir. 1997).
B. Procedural Default
When a petitioner has defaulted a claim by violating a state procedural rule which constitutes
adequate and independent grounds to bar direct review in the United States Supreme Court, he may not
raise that claim in a federal habeas proceeding absent a showing of cause and prejudice or actual
innocence. Coleman v. Thompson, 111 S.Ct. 2546, 2554 (1991). Failure to satisfy state procedural
requirements results in forfeiture of a petitioner’s right to present a claim in a federal habeas proceeding.
Murray v. Carrier, 106 S.Ct. 2639 (1986). This is not a jurisdictional matter; rather, it is grounded in
concerns of comity and federalism. Trest v. Cain, 118 S.Ct. 478, 480 (1997).
Procedural default exists where (1) a state court clearly and expressly bases its dismissal of the
petitioner's constitutional claim on a state procedural rule and that procedural rule provides an independent

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and adequate ground for the dismissal (“traditional” procedural default)1 or (2) the petitioner fails to
properly exhaust all available state court remedies and the state court to which he would be required to
petition would now find the claims procedurally barred (“technical” procedural default). In either instance,
the petitioner is considered to have forfeited his federal habeas claims. Bledsue v. Johnson, 188 F.3d
250, 254–5 (5th Cir. 1999). The grounds for traditional procedural default must be based on the actions of
the last state court rendering a judgment. Harris v. Reed, 109 S.Ct. 1038, 1043 (1989).
C. Limitations Period
Federal law imposes a one-year limitation period within which persons who are in custody
pursuant to the judgment of a state court may seek habeas review in federal court. 28 U.S.C. § 2244(d)(1).
This period generally runs from the date that the conviction becomes final. Id. The time during which a
properly-filed application for post-conviction relief is pending in state court is not counted toward the oneyear limit. Id. at § 2244(d)(2); Ott v. Johnson, 192 F.3d 510, 512 (5th Cir. 1999). However, any lapse of
time before proper filing in state court is counted. Flanagan v. Johnson, 154 F.3d 196, 199 n. 1 (5th Cir.
1998).
A state application is considered pending both while it is in state court for review and also during
intervals between a state court’s disposition and the petitioner’s timely filing for review at the next level
of state consideration. Melancon v. Kaylo, 259 F.3d 401, 406 (5th Cir. 2001). The limitations period is not
tolled, however, for the period between the completion of state review and the filing of the federal habeas
application. Rhines v. Weber, 125 S.Ct. 1528 (2005). Accordingly, in order to determine whether a habeas
petition is time-barred under the provisions of §2244(d) the court must ascertain: (1) the date upon which
the judgment became final either by the conclusion of direct review or by the expiration of time for seeking

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To serve as adequate grounds for a federally cognizable default the state rule “must have been firmly established and regularly
followed by the time as of which it is to be applied.” Busby v. Dretke, 359 F.3d 708, 718 (5th Cir. 2004) (internal quotations
omitted).
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further direct review, (2) the dates during which properly filed petitions for post-conviction or other
collateral review were pending in the state courts, and (3) the date upon which the petitioner filed his
federal habeas corpus petition.
III.
AMEND ORDER
Based on the pleadings filed by Bilbo, the court cannot determine whether the petition should
survive initial review.
Therefore,
Bilbo is ORDERED to amend his petition within forty (40) days of this order and provide the
followings:
1. A DATED copy of his appeal to the Third Circuit on direct appeal review; in
the event that Bilbo is unable to provide a DATED copy of the appeal, he should
provide such other proof as is available to establish the date of filing;
2. A DATED copy of the Third Circuit’s denial of his direct appeal;
3. A DATED copy of the writ of certiorari filed in the Louisiana Supreme Court
on direct review; in the event that he is unable to provide a DATED copy of the
writ application, he should provide such other proof as is available to establish
the date of filing;
4. A DATED copy of the application for post-conviction relief filed in the
Fourteenth Judicial District Court; in the event that he is unable to provide a
DATED copy of the application, he should provide such other proof as is
available to establish the date of filing;
5. A DATED copy of the Fourteenth Judicial District Court’s denial of his
application for post-conviction relief;
6. A DATED copy of his application to the Third Circuit on post-conviction
review; in the event that he is unable to provide a DATED copy of the
application, he should provide such other proof as is available to establish the
date of filing;
7. A DATED copy of the Third Circuit’s denial of his application for postconviction relief;

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8. A DATED copy of the writ of certiorari filed in the Louisiana Supreme Court
on post-conviction; in the event that he is unable to provide a DATED copy of
the writ application, he should provide such other proof as is available to
establish the date of filing;
9. A DATED copy of the Louisiana Supreme Court’s denial of his writ(s) on postconviction; and,
10. Any other documentation that he claims establishes that the instant habeas
corpus petition should survive initial review.
IT IS FURTHER ORDERED that with respect to ANY claims which were denied on the basis
of a procedural default, Bilbo should submit a response demonstrating that federal habeas review of any
such claims is not barred by the procedural default doctrine, e.g. facts demonstrating cause and prejudice,
a miscarriage of justice, or a specific showing that the procedural bar applied in this case is not strictly or
regularly applied by the state court or was misapplied in his case.
Bilbo may attach any and all documentation which he chooses to his response.
THUS DONE AND SIGNED in Chambers this 4th day of October, 2017.

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