Funes v. Cain

1

RIGOBERTO FUNES v. BURL CAIN, WARDEN

Civil Action Nos. 14-1342, 19-9795

United States District Court, E.D. Louisiana

July 11, 2023

SECTION “A” (2)

REPORT AND RECOMMENDATION

JOSEPH C. WILKINSON, JR., UNITED STATES MAGISTRATE JUDGE.

These consolidated were referred to a United States Magistrate Judge to conduct hearings, including an evidentiary hearing if necessary, and to submit proposed findings and recommendations for disposition pursuant to 28 U.S.C §§ 636(b)(1)(B) and (C) and, as applicable, Rule 8(b) of the Rules Governing Section 2254 Cases. Upon review of the records, I have determined that a federal evidentiary hearing is unnecessary. See 28 U.S.C. § 2254(e)(2).^[1] For the following reasons, I recommend that the petitions for habeas corpus relief be DENIED and DISMISSED WITH PREJUDICE.

I. FACTUAL BACKGROUND

The petitioner, Rigoberto Funes, is a convicted inmate incarcerated in the Louisiana State Penitentiary in Angola Louisiana.^[2] On February 26, 2009, Funes and four co-defendants, Jose Cornejo-Garcia, Renil D. Escobar-Rivera, Mario A. Funes and Pedro A. Navarrete-Duran, were indicted by a Jefferson Parish grand jury on four counts of second degree murder for the shooting deaths of Wallace Gomez, Beauford Gomez, Wayne Hebert and Jeffrey Carmadelle.^[3] Funes entered a plea of not guilty to the charges on March 6, 2009.^[4] The Louisiana Fifth Circuit Court of Appeal summarized the facts established at trial in relevant part as follows:

Deputy Rhonda Goff of the Jefferson Parish Sheriff's Office, Third District Patrol Division, testified that on October 30, 2008, at approximately 2:00 p.m., she was driving to the Third District, on Walkertown Way, to attend roll call. As she approached the intersection of Fourth and Eiseman Streets, in Marrero, she observed three Hispanic males, with a large amount of blood on them, standing outside of the door to Gomez's Bar, 6109 Fourth Street. One of the suspects was being carried by the other two suspects. As she was driving up, the three men were walking towards her; however, they cut across a field next to the bar and began traveling down Eiseman Street away from the deputy.

Goff turned her lights on and gave her location and observation to the dispatcher. She observed two of the suspects, one who was later identified as defendant, carrying the third injured male suspect in between them. She pulled behind the three men, exited her car, and asked them what was wrong, while pointing to the male being carried. The men started speaking Spanish so Goff assumed that they did not speak English. Goff then said: “Put him down.” “When they put him down,” his shirt raised, and Deputy Goff observed a round hole in his side that she believed to be a gunshot wound.

Goff then notified the radio dispatcher that there was a shooting and requested an ambulance. At that time, some white males approached Goff warning her to “[w]atch out” because “[t]hey just shot four people in the bar.” Goff immediately forced the two males, who were not shot, on the hood of her car and handcuffed both of them as quickly as possible. After the two males were handcuffed, she performed a weapons search, attempting to locate firearms. While checking the waistband area for firearms, Goff retrieved approximately six men's wallets, which were collected as evidence. She threw one of the wallets on the hood of her unit and it opened revealing the driver's license of an older white male that did not resemble any of the suspects. Goff also performed a pat down search of the wounded suspect and recovered “a bunch” of wallets in his pockets. There were no firearms retrieved from the suspects. She then called for immediate backup and four ambulances.

After two additional officers arrived on the scene, they took custody of the three suspects, and Goff immediately went inside Gomez's Bar to attempt to assist the people inside. When she opened the door, she “spooked one of the older guys,” later identified as Stanley Gomez, hereinafter Stanley, and he picked up a revolver and pointed it at her. She told him to put the gun down and he informed her that his brothers were dead. Goff again commanded Stanley to put the gun down and exit the bar and he complied; however, he placed the gun on the top of the pool table rather than back on the ground from where he retrieved it.

Goff proceeded to go inside of the bar where she observed “blood and money and bodies everywhere.” She described the scene as “something out of Hollywood.” Two victims were face up, one was “obviously dead,” and the other was not moving. Another victim was face down and he was not moving either. There was one male, later identified as Carmadelle, lying near the pool table moving, so Goff went to him and started talking to him in an attempt to comfort him and to see if he could identify the perpetrators. While in the bar, Goff came upon approximately five or six older men, who were either hiding behind the bar or in the back of the building. She told them to leave and tried to keep them from stepping through the crime scene.

Once backup arrived, including Sergeant Rene Lacombe, who took control of the scene, Deputy Goff began securing the scene and the witnesses. Once EMS arrived, Goff took the witnesses with her to obtain their names and contact information. At that time, one of the witnesses gave her a napkin with a license plate number on it. Goff then transmitted the license plate information to the dispatcher.

[. . .]

Stanley Gomez, who was 84 at the time of trial, testified that Wallace and Beauford Gomez were his brothers. He testified that his father opened Gomez's Bar at its current location in 1941 and shortly thereafter he began cashing checks for the employees at Johns Manville, which was located across the street from the bar.

On the day of the incident, Stanley arrived at the bar at approximately 9:00 a.m. At 2:00 p.m. “five Mexicans,” came into the bar. They ordered “beer and Cokes,” and walked over to the pool table and picked up some pool sticks. They were talking and “kind of bunched up.” Next, they broke away and pulled out guns. Stanley admitted to seeing three men with guns; however, he declared that “as far as he could see, they all had guns.” They went to the patrons and took their wallets at gunpoint. “One of them” took his brother, Wallace, put a gun to his head and brought him to the back where the safe was located. Stanley went to the storeroom, located on the left behind the bar, and one of the robbers, later identified as Mario, came in with a gun and told him to come out. At some point during the robbery, Stanley's wallet was also taken, but it was later returned by the Jefferson Parish Police Office.

Later, the robber who brought Wallace to the back came out running with a sack, yelling something in “Mexican [sic].” Stanley was not sure what he was saying but he thought he was saying “I got [sic] the money. Let's go.” The perpetrator ran out and the other perpetrators followed, except for Mario. Mario went behind the bar, and pulled a gun on John, the bartender, who opened the register. When the register opened, it “jumped out,” and fell on the floor. Mario took the money out of the register and stuffed it into his pocket.

Wallace came from the kitchen, carrying a pistol in his hands. At that time, someone yelled: “There's one of them right by the bar there.” Wallace then said: “Hey, you one of them guys?” Mario turned around with a pistol in his hand and he and Wallace started firing. Stanley did not know who fired first because they were too close together.

Wallace looked like “he was firing his gun automatically like, like he didn't know what he was doing.” Stanley observed Wallace and Beauford fall. When Wallace was falling, he was still shooting.

Stanley immediately went behind the bar, closer to the back end, and called 911. While he was on the phone, two of the robbers walked back inside and began firing. Before ducking behind the bar, Stanley observed that the robber on the right had a weapon that jammed and he threw it on the floor by the pool table. The robber on the left continued to fire, and they both picked up Mario and “dragged” him outside.

When the firing stopped, Stanley checked for a pulse on his brothers, Wallace and Beauford, but he could not feel one on either of his brothers. At that time a Jefferson Parish deputy drove by the bar and stopped. After being forced to exit the building, Stanley was later informed that Carmadelle and Hebert had also been shot. Contrary to Goff's testimony, Stanley testified that he never picked up a gun and placed it on a pool table at the direction of a Sheriff's deputy.

State v. Funes, 88 So.3d 490, 493-504 (La.App. 5th Cir. 2011); State Record Volume 11 of 14, Louisiana Fifth Circuit Court of Appeal Opinion, 11-KA-120, pages 2-23, December 28, 2011.

On March 22, 2010, the state trial court granted Funes's motion to sever his trial and quash the second count, which was found to have charged him and his co-defendants improperly with second degree murder of Beauford Gomez under the felony-murder doctrine.^[5] Funes was tried separately before a jury on July 27 through 29, 2010, and found guilty as charged on the remaining three second degree murder counts.^[6]

On August 5, 2010, the state trial court sentenced Funes on each count to consecutive sentences of life in prison without benefit of parole, probation, or suspension of sentence.^[7] On September 9, 2010, the court denied Funes's motion to reconsider the sentences.^[8]

On direct appeal to the Louisiana Fifth Circuit Court of Appeal Funes's appointed counsel asserted three errors:^[9] (1) The state trial court erred when it denied the motions to suppress the defendant's statements. (2) The state trial...