Girod v. Tanner

DENEIL GIROD v. ROBERT C. TANNER, WARDEN RAYBURN CORRECTIONAL CENTER

CIVIL ACTION NO. 20-0139 SECTION "J"(4)

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF LOUISIANA

October 23, 2020

REPORT AND RECOMMENDATION

This matter was referred to a United States Magistrate Judge to conduct hearings, including an evidentiary hearing if necessary, and to submit proposed findings and recommendations 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 entire record, the Court has determined that this matter can be disposed of without an evidentiary hearing. See 28 U.S.C. § 2254(e)(2).¹

I. Factual and Procedural Background

The petitioner, Deneil Girod ("Girod"), is a convicted inmate incarcerated in the B.B. "Sixty" Rayburn Correctional Center in Angie, Louisiana.² On November 6, 2014, Girod was charged by Bill of Information in Jefferson Parish with attempted second degree murder, home invasion by unauthorized entry into an inhabited dwelling with intent to harm or damage, and armed robbery.³ He pleaded not guilty to the charges that same day.⁴

The record reflects that, on December 28, 2013, at approximately 1:00 a.m., Dustin Adams and Kelly Lee were awakened by a loud noise in their Westwego residence.⁵ Lee rushed out of bed to check on her eight-year-old daughter, A.L., whose bedroom was in the back of the house. When she exited her bedroom, Lee was confronted by two masked gunmen, one of whom yelled at her to "get down." She complied and then crawled to A.L.'s bedroom followed by one of the intruders, later identified as Girod. Adams, in the meantime, heard Lee make a "frightening sound," which alerted him to the fact that "something was wrong." When he got out of bed, the other intruder pointed a pistol at the back of his head, forced him to lie on the floor, and demanded his money and keys. Adams pointed to his car keys, and the intruder took them and ran out of the house through the front door. None of Adams's three cars were taken.

After that intruder left, Adams ran to the back bedroom where Girod was holding Lee and her daughter at gunpoint. Adams charged towards Girod, who fired a shot that grazed Adams's head. Adams nonetheless physically attacked Girod and Lee joined in the scuffle to help Adams get the gun out of Girod's hand. As Lee tried to hold Girod down, Adams ran to the kitchen, retrieved a knife, returned to the struggle, and stabbed Girod. The altercation then moved from the bedroom, through the kitchen, and onto the back porch where Adams and Girod continued to struggle. Lee followed the two men through the house, and as she passed through the kitchen, she also grabbed a knife. Lee then went out the back door and saw that Girod had Adams pinned up against the porch railing. Lee then attacked and stabbed Girod, which allowed Adams to break away. Girod then ran off, jumped over a fence, and fled. Adams also jumped over the fence toget help from his neighbors. Lee went back inside to check on her daughter. Lee had her daughter hide in a closet and called 9-1-1.

Detective Christopher Fisher and Officer Todd Usey with the Westwego Police Department arrived first on the scene. They entered the house through the rear door and saw blood in the kitchen and encountered Lee, who was at that point "hysterical." The two officers searched the house but found no one else except Lee's daughter, who was "visibly shaken" and hiding in a closet. The officers located Adams in the neighborhood and returned him to the house for an interview. Adams and Lee were unable to provide any identifying information about the gunmen, whose faces were masked. Officer Usey also canvassed the neighborhood but did not locate any suspects that night.

When other officers processed the crime scene that night, they took pictures and recovered evidence, including two knives and a Taurus semi-automatic 9 mm handgun. The officers also collected numerous blood samples from the kitchen floor, an outdoor gate, and underneath the carport. Months later, the blood samples, as well as DNA reference samples obtained from the victims, were submitted to the Jefferson Parish Crime Lab for analysis. The lab was able to match one blood sample to the Girod. Detective Andre Cavelier talked with Adams and Lee to see if they knew Girod. After seeing his picture, Adams identified him as "Deneil" whom he knew because they worshipped at the same mosque.

Based on the blood sample analysis and Adams's identification, Detective Cavelier eventually obtained a warrant for Girod's arrest. Other lab reports also later confirmed that the DNA profiles from the swabs, including blood from underneath the carport, the gate at the rear of the carport, and one of the knives was consistent with the DNA profile obtained from Girod. Also,the DNA profile taken from the blood samples on one of the knives at the scene was consistent with a mixture of Lee's DNA and Girod's DNA.

Girod was tried before a jury on September 14 and 15, 2015, and found guilty as charged on all three counts.⁶ At a September 18, 2015, hearing, the state trial court denied Girod's motion for new trial.⁷ On September 22, 2015, the state trial court sentenced Girod to concurrent prison terms of 47 years for attempted second degree murder, 25 years for home invasion, and 47 years for armed robbery, with an additional and consecutive term of five years for the use of a firearm.⁸ The Court also ordered that the sentences be served without benefit of parole, probation, or suspension of sentence.⁹

That same day, Girod pleaded not guilty to the State's multiple offender bill filed September 17, 2015.¹⁰ At a January 28, 2016 hearing, the state trial court adjudicated Girod a second felony offender, vacated the armed robbery sentence, and resentenced Girod to serve 65 years in prison, concurrent with the other sentences and without benefit or parole, probation, or suspension of sentence, and with the five years firearm enhancement to be consecutively served.¹¹

On direct appeal to the Louisiana Fifth Circuit Court of Appeal, Girod's appointed counsel asserted that the sentence imposed was excessive under the circumstances.¹² In his supplementalpro se briefs, Girod asserted the following errors:¹³ (1) the evidence was insufficient to support the verdict; (2) trial counsel's performance was so deficient that it may have led to the conviction where counsel (a) failed to impeach Adams and Detective Cavelier regarding inconsistent and perjurious testimony, and (b) referred to Girod's having been in prison; (3) the record contains no proof that the State had subject matter jurisdiction to prosecute the case; and (4) the errors patent on the face of the record in restriction of his parole eligibility must be reviewed.

On June 30, 2016, the Louisiana Fifth Circuit affirmed Girod's convictions and sentences finding no merit in the claims asserted.¹⁴ The Court also instructed the state trial court to correct a discrepancy between the transcript and the commitment order.¹⁵ The state trial court corrected the order on June 30, 2016.¹⁶

On May 26, 2017, the Louisiana Supreme Court denied Girod's subsequent writ application without stated reasons.¹⁷ His conviction and sentence became final 90 days later, on August 24, 2017, because he did not file for review with the United States Supreme Court. Ott v. Johnson, 192 F.3d 510, 513 (5th Cir. 1999) (period for filing for certiorari with the United States Supreme Court is considered in the finality determination under 28 U.S.C. § 2244(d)(1)(A)); U.S. S. Ct. Rule 13(1)).

After unsuccessful efforts to obtain free copies of documents and the closing argument transcript, on April 11, 2018, Girod signed and submitted to the state trial court an application for post-conviction relief in which he asserted the following grounds for relief:¹⁸

(1) his trial counsel was ineffective for failing to subpoena medical expert witness after the prosecutor failed to provide medical reports and examination analysis to determine the cause of the victim's injuries;

(2) his trial counsel was ineffective for failing to file pretrial motions to quash the bill of information which did not provide essential elements of the charged offenses;

(3) his trial counsel was ineffective for (a) failing to conduct a pretrial investigation of ballistic and forensic evidence to determine contamination and (b) failing to impeach or discredit certain witnesses and the use of their testimony;

(4) his trial counsel was ineffective for failing to protect his rights under the Confrontation Clause;

(5) his trial counsel was ineffective for failing to inform him of a plea offer and advising him to reject the plea offer;

(6) the cumulative errors of counsel denied him a fair trial;

(7) his trial counsel was ineffective for allowing an incomplete jury instruction on the definition of principal;

(8) prosecutorial misconduct occurred when the prosecutor failed to provide exculpatory evidence in violation of Brady;

(9) his conviction for armed robbery with a firearm does not rest on a sufficient and valid verdict;

(10) he was denied the right to confront the victim Lee at trial;

(11) his trial counsel was ineffective for allowing the State to proceed without calling Lee to the stand, failing to object to the insufficient evidence, and failing to object to the multiple bill; and(12) his trial counsel was ineffective for failing to object to the State's use of statements from the child victim.¹⁹

After receiving the State's opposition response,²⁰ on August 1, 2018, the state trial court denied Girod's application. The Court held that claims 1, 4, 6, 7, and 9 were procedurally improper under La. Code Crim. P. art. 926(B)(3) for Girod's failure to state with reasonable particularity the factual basis for the relief sought. The Court also found claim 9 procedurally barred under La. Code Crim. P. art. 930.4(A) as repetitive of the sufficiency of the evidence claim...