Opinion
DOCKET NO. 15-cv-2760
04-05-2017
JAMAL JAMES CARMOUCHE D.O.C. # 471370 v. DARREL VANNOY
JUDGE DOHERTY
SUPPLEMENTAL REPORT AND RECOMMENDATION
Before the court is a pro se application for a writ of habeas corpus pursuant to 28 U.S.C § 2254 filed by Jamal James Carmouche ("petitioner"). Doc. 1. The petitioner is a prisoner in the custody of the Louisiana Department of Public Safety and Corrections. He is currently incarcerated at Dixon Correctional Institute in Jackson, Louisiana. Darrel Vannoy ("respondent"), former warden at Dixon Correctional Institute, opposes the application. Doc. 11.
This matter has been referred to the undersigned for review, report, and recommendation in accordance with 28 U.S.C. § 636 and the standing orders of the court. We have already issued a Report and Recommendation [doc. 14] recommending that the petition be denied and dismissed with prejudice. In his objections to that filing, the petitioner clarified that his malicious prosecution claim included an allegation that the prosecution committed a Brady violation by failing to disclose surveillance footage to the defense. Doc. 18. The district judge therefore referred the matter to us once more for the issuance of a supplemental report and recommendation to deal with that portion of the petitioner's claim. Doc. 19.
I.
BACKGROUND
The full background and procedural history of this case can be found in our original report and recommendation. See doc. 14, pp. 1-3. Relevant to this claim, the petitioner complains about the manner in which the prosecution introduced surveillance footage of him in a homicide trial.
The video in question contained surveillance footage from the date of the shooting, taken from a utility pole camera near the scene. Doc. 11, att. 6, pp. 65, 72. After the video was played, defense counsel stated that he had had no objection to the video itself but that, after seeing it played, he wished to have it excluded as irrelevant:
But, right now, the only thing that the jury see [sic] is just some people running. There's nothing associating, obviously, my client with this particular video. So we would simply ask that it be excluded, based on its relevancy.Id. at 76-77. The court denied the motion noting that the defense had offered no objection to the video when it was introduced and had now waived his right to object, despite defense counsel's contention that he only meant that he had no objection to the foundation. Id. at 77-78.
II.
LEGAL ANALYSIS
In Brady v. Maryland, the Supreme Court held that "the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosection." 83 S.Ct. 1194, 1196-97 (1963). In order to prevail on such a claim, the petitioner must show 1) that the evidence at issue was favorable to the accused, either because it was exculpatory or impeaching; 2) that the evidence was either willfully or inadvertently suppressed by the prosecution; and 3) that prejudice ensued. Medellin v. Dretke, 371 F.3d 270, 280-81 (5th Cir. 2004) (citing Banks v. Dretke, 124 S.Ct. 1256, 1272 (2004)).
Brady's prejudice factor is tied to the materiality of the suppressed evidence. Banks v. Thaler, 583 F.3d 295, 309-10 (5th Cir. 2009) (citing Banks v. Dretke, 124 S.Ct. at 1272)). Thus a petitioner will only be entitled to federal habeas relief if he can show that the suppressed evidence was material. Suppressed evidence is material if there is a "reasonable probability that, had the evidence been disclosed to the defendant, the result of the proceeding would have been different." Id. (quoting Strickler v. Greene, 119 S.Ct. 1936, 1948 (1999)). This does not mean that the petitioner must show by a preponderance of the evidence that disclosure of the suppressed evidence would have ultimately led to his acquittal. Rather, he must demonstrate that the suppressed evidence "could reasonably be taken to put the whole case in such a different light as to undermine confidence in the verdict."Sholes v. Cain, 370 Fed. App'x 531, 533 (5th Cir. 2010) (unpublished) (quoting Youngblood v. West Virginia, 126 S.Ct. 2188, 2190 (2006)). A materiality determination is "a fact-intensive inquiry done on a careful, case-by-case basis." Id. (quoting Banks v. Thaler, 583 F.3d at 322).
The Fifth Circuit has long held that there can be no Brady violation if the defendant received the suppressed evidence in time to put it to effective use at trial. United States v. Martinez, 151 F.3d 384, 391 (5th Cir. 1998) (citing United States v. McKinney, 758 F.2d 1036, 1049-50 (5th Cir. 1985)). When the prosecution is alleged to have delayed in surrendering Brady material, the petitioner must show that he was prejudiced by the tardy disclosure. McKinney, 758 F.2d at 1050. Accordingly, here the petitioner must show a reasonable probability that, had the defense received the footage earlier, the outcome of the case would have been different.
The surveillance footage, though apparently of poor quality, was used at the petitioner's trial in the examination of eyewitnesses. See doc. 14, pp. 10-12. In his original petition, the petitioner only briefly mentioned the video under the Brady claim but did not argue how it fit under the Brady factors. Doc. 1, att. 2, p. 23. However, he did complain about the video's introduction under other claims. Namely, he asserted that the video was insufficiently probative because its quality did not allow one of the witnesses to identify which of the two figures in the footage was him nor could the detective who introduced the footage state whether the figures in the footage were male or female, white or black. Id. at 11, 22. He also alleged that his trial counsel was ineffective for failure to object to the video being played before he had reviewed it. See id. at 15-16.
In his objections to the original Report and Recommendation the petitioner expands on his belief that the video was suppressed and offers letters from his trial attorney seeking discovery of video evidence in January and September 2011, before the petitioner's January 2012 trial. Doc. 17, att. 1, pp. 3-4. Petitioner, however, continues to fail to clarify how the video falls within Brady. He does not explain how the video qualifies as exculpatory or impeaching evidence and, therefore, has not shown that the evidence was Brady material. He also makes no showing of what delay occurred before the video was received by the defense.
Detective Larry Theriot, who introduced the video, testified that there were two dates printed on the envelope containing the flash drive on which the video was stored: September 18, 2010 (the date the footage was taken), and November 11, 2011, reflecting when the envelope had been opened and resealed. Doc. 11, att. 6, pp. 72-73. --------
Assuming arguendo that the video did qualify as Brady material and that the prosecution did impermissibly delay production, we still cannot find that the petitioner has met his burden. He does not explain how the video footage might have been put to better use at his trial but for the alleged delay. He therefore does not show to what extent, if any, the defense was prejudiced. Accordingly, he has not shown error in the state court's ruling or a right to federal habeas relief.
III.
CONCLUSION
Based on this and the preceding Report and Recommendation, IT IS RECOMMENDED that the instant application be DENIED and DISMISSED WITH PREJUDICE.
Pursuant to 28 U.S.C. § 636(b)(1)(C) and Rule 72(b) of the Federal Rules of Civil Procedure, the parties have fourteen (14) days from receipt of this Report and Recommendation to file any objections with the Clerk of Court. Timely objections will be considered by the district judge prior to a final ruling.
Failure to file written objections to the proposed factual findings and/or the proposed legal conclusions reflected in this Report and Recommendation within fourteen (14) days following the date of its service shall bar an aggrieved party from attacking either the factual findings or the legal conclusions accepted by the District Court, except upon grounds of plain error. See Douglass v. United Services Automobile Association, 79 F.3d 1415, 1429-30 (5th Cir. 1996).
In accordance with Rule 11(a) of the Rules Governing Section 2254 Cases in the United States District Courts, this court must issue or deny a certificate of appealability when it enters a final order adverse to the applicant. Unless a Circuit Justice or District Judge issues a certificate of appealability, an appeal may not be taken to the court of appeals. Within fourteen (14) days from service of this Report and Recommendation, the parties may file a memorandum setting forth arguments on whether a certificate of appealability should issue. See 28 U.S.C. § 2253(c)(2). A courtesy copy of the memorandum shall be provided to the District Judge at the time of filing.
THUS DONE this 5th day of April, 2017.
/s/_________
KATHLEEN KAY
UNITED STATES MAGISTRATE JUDGE