Perez v. Vannoy

HECTOR PEREZ v. DARREL VANNOY, ET AL.

Civil Action No. 20-2429

United States District Court, E.D. Louisiana

June 4, 2021

REPORT AND RECOMMENDATION

KAREN WELLS ROBY, CHIEF UNITED STATES MAGISTRATE JUDGE.

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) (2006).^[1]

I. Factual Background

The petitioner, Hector Perez (“Perez”), is a convicted inmate incarcerated in the Louisiana State Penitentiary, in Angola, Louisiana. On August 13, 2009, Perez was charged in St. Tammany with one count of aggravated rape violation of La. Rev. Stat. § 14:81.2.^[2] Perez entered a plea of not guilty in the case.^[3]

The record reflects that, ^[4] in 2002, Perez and Angela Perez were involved in a romantic relationship. At that time, they were living in Texas and Angela Perez had a five-year-old daughter, A.W., ^[5] the victim in this case, from a previous relationship. In 2003, Angela Perez and Hector Perez married after having a daughter together. Perez, who was a roofer left for Florida and then to Louisiana to find work. Gerald Spell and Hector Perez began doing roofing work together in Louisiana in 2005. In approximately 2006, Angela Perez and her daughters went to live with Hector Perez in Bush Louisiana. Originally, the family lived in a camper owned by Spell. Eventually, the family moved into a trailer on Home Lane in Bush. Later, the family moved back to a trailer on Spell's property.

In 2009, when A.W. was in the fifth grade at Fifth Ward Junior High School, Jackie Nettles, a school counselor showed her class a video on “good touches” and “bad touches.” After watching the video, A.W. told Nettles that Hector Perez, her stepfather, had been inappropriately touching her. Authorities were brought into the matter. A.W. was interviewed by Jo Beth Rickels, a forensic interviewer, at the Children's Advocacy Center (CAC) at the Covington Hope House. During her interview, A.W. disclosed that Hector Perez started sexually abusing her when she was about six years old and lived with her mother and Perez in Texas. A.W. disclosed to Rickels that on many occasions Perez touched her breasts, buttocks, and vagina, and engaged in oral sexual intercourse with her. According to A.W., Perez also made A.W. put her hand on his penis on several occasions. The CAC interview was played for the jury.

A.W. testified that she was about six years old when Perez started doing things she did not like to her breasts, “butt, ” and vagina. Eventually, she told her mother, but after meeting with Hector Perez and A.W., Angela Perez told A.W. that she did not believe her. The abuse continued until A.W. reported the abuse to Nettles. A.W. recalled being interviewed by a detective and a woman from the Office of Community Service. A.W. stated that she told the truth to Rickles when she was interviewed at the Covington Hope House. A.W. explained that, after she reported the abuse, her mother treated her horribly and that A.W. considered cutting herself. A.W. told this information to her grandmother, a teacher at school and her therapist, Julie Kringas. Eventually, A.W. and her sister were removed from Angela Perez's care and placed in foster care. They were later adopted.

Julie Kringas, a counselor for the Offices of Community Services, provided counseling services to A.W. for several years starting on March 9, 2009. Just prior to the first counseling session, Kringas witnessed Angela Perez whispering into A.W.'s ear and noticed that A.W. appeared agitated. During her first private session with A.W., A.W. disclosed the sexual abuse Hector Perez had committed against her. After Kringas told A.W. there would be an investigation, A.W. became upset and said in a rehearsed manner that she had made up the allegations because Hector Perez would not allow her to wear makeup. When Kringas further questioned her, A.W. cried and said she did not want to split her family up but admitted that the sexual abuse had in fact happened. Over the following years of counseling, A.W. never recanted again.

Hector Perez testified on his own behalf at trial. He denied all of the allegations and stated that he never inappropriately touched A.W. He claimed A.W. had falsified the accusations because of his strict parenting. Perez admitted that he saw the police coming down the road as he was leaving his house to go to the store to buy laundry detergent. He claimed he did not know that the police were looking for him at that time, but rather testified that the police asked for his wife. He testified that, after he left, his wife called and told him if he returned the girls would be taken away from them. Perez claimed he called Family Services and left a message but did not receive a call in return. He further claimed that he did not turn himself into the police because he needed to make arrangements for the care of his family in his absence.

Perez was tried by a jury on November 10 through 14, 2014, and was found guilty as charged.^[6] On December 19, 2014, the Trial Court denied Perez's motions for new trial and post verdict judgment of acquittal.^[7] On that same day, the Trial Court sentenced Perez to life imprisonment without the benefit of probation, parole, or suspension of sentence.^[8] The Trial Court denied Perez's motion to reconsider sentence.^[9]

Attorney Sherry Watters was assigned as counsel for purposes of appeal.^[10] On direct appeal, Perez's appellate counsel filed a brief raising the following claims for relief: (1) the Trial Court erred in allowing the experts' testimony to invade the province of the jury on questions of A.W.'s veracity and reliability; (2) the State failed to prove the charge beyond a reasonable doubt; and (3) the mandatory sentence imposed was excessive, cruel, and unusual punishment.^[11] Perez filed a pro se brief raising the following claims for relief: (1) the State violated his right to a speedy trial and did not try him within the statutory limits provided by La. Code Crim. P. art. 578; (2) the Trial Court erred in denying Perez's motions to quash and dismiss the indictment and motion in arrest of judgment; (3) the Trial Court erred when it denied defense counsel's motion to withdraw and declined to appoint another attorney; (4) the Trial Court erred in denying the defense's motion to restrict the prosecution from using prejudicial terminology at trial and by allowing the prosecution to call Perez the “defendant” and A.W. the “victim”; (5) the Trial Court erred in allowing an all-white jury; (6) the Trial Court erred when it denied defense's motion in limine related to battery on his wife; (7) the Trial Court erred in denying the defense's motion to allow the jury to visit the crime scene; (8) the Trial Court erred in overruling the defense's objection and denying its motion for a mistrial when the jury coordinator entered the jury room during recess; (9) the Trial Court erred in failing to remove two jurors when they both stated they knew parties on the prosecution's side; (10) the Trial Court erred in denying defense's motion in limine pertaining to the jailhouse phone calls; (11) prosecutorial misconduct occurred when the prosecutor cried during the examination of A.W.; and (12) the Trial Court erred in denying the defense's motion for mistrial based on an improper statement by the prosecution.^[12]

On December 23, 2015, the Louisiana First Circuit affirmed the conviction and sentence finding Perez's counsel claims and pro se claims one through four lacked merit and his pro se claims five through twelve were not briefed and were considered abandoned under Uniform Rules - Courts of Appeal Rule 2-12.4.^[13] On February 3, 2017, the Louisiana Supreme Court issued a denial without stated reasons of the related writ application.^[14]

On March 22, 2018, Perez filed a pro se application for post-conviction relief asserting the following claims for relief: (1) ineffective assistance of counsel in failing to ask for a mistrial or disqualify a tainted panel of jurors; (2) ineffective assistance of counsel in failing to object to prejudicial use of inadmissible Child Sexual Abuse Accommodation Syndrome evidence at trial; (3) ineffective assistance of counsel in failing to object and ask for directed verdict when the victim failed to testify to all the elements of the crime; (4) ineffective assistance of counsel in failing to raise issue of impeached testimony, standing alone, being unconstitutionally used to obtain conviction; (5) ineffective assistance of counsel in failing to object to State's use of out-of-court testimonial statements of the alleged victim's mother in violation of Crawford v. Washington;^[15](6) ineffective assistance of appellate counsel in failing to raise issues on appeal related to objections on the record to prosecutorial misconduct.^[16]

On April 16, 2018, the Trial Court found that claims one through five were not grounds under La Code Crim. P. art. 924, and that claim six was not listed in La. Code Crim P. art. 930.3 and denied the application for post-conviction relief.^[17] On July 23, 2018, the Louisiana First Circuit granted Perez's related writ application, vacated the judgment of the Trial Court, and remanded the matter for consideration of the merits of the claims.^[18]

On June 14, 2019, the Trial Court denied the application on the merits.^[19] The Louisiana First Circuit denied Perez's related writ without reasons.^[20] The Louisiana...