UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF LOUISIANA

LAFAYETTE-OPELOUSAS DIVISION

JEREMY DWAYNE SMITH

Petitioner
vs.

CIVIL ACTION
NO. 6:14CV00811

BURL CAIN, WARDEN

LOUISIANA STATE PENITENTIARY
Respondent

SEC: ______
JUDGE RICHARD HAIK
MAGISTRATE JUDGE C. MICHAEL
HILL

RESPONDENTS ANSWER TO PETITION FOR HABEAS CORPUS

_______________________________
FREDERICK L. WELTER, #23,360
ASSISTANT DISTRICT ATTORNEY
15TH JUDICIAL DISTRICT-ACADIA
PARISH COURTHOUSE, 3RD FLOOR
P.O. BOX 288
CROWLEY, LOUISIANA 70527
(337) 788-8831
Counsel for Respondent

Page 1

NOW INTO COURT comes respondent herein, through the undersigned assistant District
Attorney, to answer Petitioners application for habeas corpus.

I.
Respondent denies the factual allegations and the legal validity of each and every one of the
issues raised in the present application for habeas corpus. A Memorandum of Law, submitted
herewith, expands upon the following summarized defenses and answers to each issue:
1) Issue 1 (claim that Petitioners trial counsel and appellate counsel were ineffective
throughout the trial and appeal) is not a proper claim for this habeas proceeding, in that Petitioner
did not raise this issue on his appeal, nor did he appeal this issue after a trial on his post conviction
relief allegations.
2) Issue 2 (claim that the Petitioner was denied due process because trial witnesses testified
during trial and referred to the defendant in that testimony, that a former U.S. Marine, the victim in
the case, testified that he recognized the pistol carried by the defendant as a 9mm, and the
ammunition was full metal jacket rounds, and the prosecutor made a closing argument to the jury
that defendant claims was prejudicial to him) is not a proper claim for this habeas proceeding, in that
Petitioner did not raise this issue on his appeal. In the alternative, if this Court finds that these
claims can properly be brought before this Court even though they were not raised on appeal, then
these claims are without merit, as the witnesses testified at trial without objection by trial counsel,
the victim was not an expert witness at trial but was allowed by the court to testify as to what he saw
and knew from his military experience about weapons and ammunition, and closing arguments are,
by definition, going to be prejudicial to the defendants, as the prosecutor argued to the jury that this

Page 2

defendant committed the acts for which he was charged.

3) Issue 3 (claim that the sentence imposed in this case was excessive because Petitioner
claims that the trial court should have run his sentences for attempted second degree murder and
armed robbery concurrent) is not a proper claim for this habeas proceeding, in that Petitioner did not
raise this issue on his appeal. In the alternative, if this Court finds that this issue is properly before
it in this habeas proceeding, then this claim is without merit, as the trial court had the ability and
discretion to run the sentences consecutively in this case, and was proper in doing so.
4) Issue 4 (claim that the selection of the grand jury foreman somehow resulted in
discrimination against the defendant by way of race and gender) is also not a proper claim for this
habeas proceeding, in that Petitioner did not raise this issue on his appeal. In the alternative, if this
Court finds that this issue is properly before it in this habeas proceeding, then this claim is without
merit, as the grand jury members are picked randomly by the sheriff deputy from the clerks box of
potential jurors. In this case, since the grand jury foreperson was absent on the date the instant case
was presented to the grand jury, the state made a formal motion to the court for the appointment of
a temporary foreperson, and the court made such an appointment, based on the random order in
which the grand jurors were picked by the bailiff.
II.
Initially, the State informs the Court that, although Petitioner was represented by IDO counsel
throughout the state prosecution, he was appointed an IDO attorney for his appeal, then hired
separate counsel for his appeal and present counsel for the post conviction relief and habeas phases.
Petitioners Memorandum of Law is replete with statements that simply are not supported
by the record. For that reason, Respondents Memorandum of Law includes Respondents own

Page 3

Statement of the Case. Also, in its Memorandum of Law, Respondent has provided citations to
the record whenever Respondents understanding of the record differs from that of Petitioners.
III.
Respondent is not satisfied that Petitioner has exhausted his state remedies. Petitioner did
timely file an appeal in this case, and the Third Circuit Court of Appeal affirmed his convictions.
Petitioner did not file any application for supervisory writ or writ of certiorari to the Louisiana
Supreme Court after the Third Circuit Court of Appeal affirmed his convictions. Petitioner did file
a timely Application for Post Conviction Relief, which after a trial, was denied by the trial court.
Petitioner erroneously appealed that denial of post conviction relief, and the Third Circuit Court of
Appeal dismissed that appeal, as it was not an appealable judgment. The Third Circuit granted
Petitioner thirty days from the date of that decision, December 28, 2011 to file a supervisory writ
application.
Petitioner failed to timely a supervisory writ application within thirty days of the decision by
the Third Circuit Court of Appeal dated December 28, 2011, in Docket No. 11-1371, which resulted
in his conviction becoming final under La.C.Cr.P. art 914. Petitioner did not file any application for
supervisory writ or writ of certiorari to the Louisiana Supreme Court after the Third Circuit Court
of Appeal dismissed his appeal of the denial of his post conviction relief, and after he failed to timely
file a proper supervisory writ application. Petitioner then filed the present Petition Under U.S.C.
2254 For Writ of Habeas Corpus By A Person In State Custody on April 21, 2014. Petitioners
failure to afford the state courts the opportunity to consider these new allegations subjects his entire
federal application to peremptory dismissal by this Honorable Court. Burns v. Estelle, 695 F.2d 847
(5th Cir. 1983). Since Petitioner has failed to file a timely application for supervisory writs on the

Page 4

trial courts denial of his application for post conviction relief, it appears that Petitioner has waived
any further state remedies. Petitioner has not therefore exhausted his state remedies.
IV.
Respondent submits that Petitioner has not demonstrated that any of his claims presented
herein have been adjudicated in state court proceedings which (1) resulted in a decision that was
contrary to, or involved an unreasonable application of, clearly established Federal law, as
determined by the Supreme Court of the United States; or (2) resulted in a decision that was based
on an unreasonable determination of the facts in light of the evidence presented in the State court
proceeding.
V.
Respondent has also failed to, by clear and convincing evidence, rebut any factual
determination made by a state court and which is presumed to be correct in this proceeding.
VI.
Respondent submits that Petitioner has failed to observe the filing deadlines as required by
28 U.S.C. 2244(d)(1), and therefore bar review of Petitioners claims.
VII.
The record of all proceedings in the trial court (State of Louisiana v. Jeremy Smith, 15th
Judicial District, Acadia Parish, Docket No. 65,845) has been included as an attachment to this
Answer, along with all briefs filed by Petitioner and the State in his appeals. In addition, Petitioners
Third Circuit Court of Appeal and Louisiana supreme court filings and judgments have been
included as attachments to this Answer.
VIII.

Page 5

With this Answer, Respondent is filing the attachments as a volume of pleadings and
transcripts with numbered pages. It contains copies of trial court motions, court minutes, court
transcripts, and defendants pretrial and post trial motions and post conviction relief applications,
and the court rulings pertaining to all of them.
IX.
Respondent respectfully submits to this Honorable Court that none of the issues raised in this
application for habeas corpus relief has any validity, and that all may be disposed of by reference to
the record itself. Accordingly, it is respectfully urged that the application for habeas corpus be
denied without an evidentiary hearing.

__________________________________
FREDERICK L. WELTER, #23,360
ASSISTANT DISTRICT ATTORNEY
15TH JUDICIAL DISTRICT-ACADIA
PARISH COURTHOUSE, 3RD FLOOR
P.O. BOX 288
CROWLEY, LOUISIANA 70527
(337) 788-8831
Counsel for Respondent

Page 6

CERTIFICATE
I HEREBY CERTIFY that a copy of the above and foregoing instrument has this day
been forwarded to all parties and/or counsel of record by depositing a copy of same in the United
States Mail, postage prepaid and properly addressed.
Crowley, Louisiana, this August 11, 2014.

_________________________
FREDERICK L. WELTER
ASSISTANT DISTRICT ATTORNEY

Page 7

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF LOUISIANA
LAFAYETTE-OPELOUSAS DIVISION

JEREMY DWAYNE SMITH

Petitioner
vs.

CIVIL ACTION
NO. 6:14CV00811

BURL CAIN, WARDEN

LOUISIANA STATE PENITENTIARY
Respondent

SEC:
JUDGE RICHARD HAIK
MAGISTRATE JUDGE C. MICHAEL
HILL

RESPONDENTS MEMORANDUM OF LAW

_______________________________
FREDERICK L. WELTER, #23,360
ASSISTANT DISTRICT ATTORNEY
15TH JUDICIAL DISTRICT-ACADIA
PARISH COURTHOUSE, 3RD FLOOR
P.O. BOX 288
CROWLEY, LOUISIANA 70527
(337) 788-8831
Counsel for Respondent

Page 8

I. TABLE OF CONTENTS
II. INDEX OF AUTHORITIES

III. STATEMENT OF THE CASE

1. Prior Proceedings

10

2. Facts of the case

12

IV. QUESTIONS OF LAW

13

V. ARGUMENT
1. ISSUE 1 (that Petitioners trial counsel and appellate counsel were

13

ineffective throughout the trial and appeal).

2. ISSUE 2 (claim that the Petitioner was denied due process because

16

trial witnesses testified during trial and referred to the defendant in that testimony,
that a former U.S. Marine, the victim in the case, testified that he recognized the
pistol carried by the defendant as a 9mm, and the ammunition was full metal
jacket rounds, and the prosecutor made a closing argument to the jury that
defendant claims was prejudicial to him).
3. ISSUE 3 (claim that the sentence imposed in this case was

23

excessive because Petitioner claims that the trial court should have
run his sentences for attempted second degree murder and armed
robbery concurrent).
4. ISSUE 4 (claim that the selection of the grand jury foreman somehow

24

resulted in discrimination against the defendant by way of race and gender).

VI. CONCLUSION

Page 9

25

II. INDEX OF AUTHORITIES

Burns v. Estelle, 695 F.2d 847 (5th Cir. 1983)

(State of Louisiana v. Jeremy Smith, 15th JDC, Acadia Parish, Docket No. 65,845

State v. Jeremy Smith , 984 So.2d 238 (La.App. 3rd Cir. 2008)

14

State v. Jeremy Smith, unpublished ruling, Dkt. No. 11-1371 (La.App. 3rd Cir. 2011)

14

Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)

20

State v. Fuller, 454 So.2d 119 (La. 1984)

20

State v. LaCaze, 824 So.2d 1063 (La. 2002)

20

State v. Brooks, 505 So.2d 714 (La. 1987)

20

State v. Howard, 283 So.2d 199 (1973)

24

State v. Bonnano, 384 So.2d 355 (La. 1980)

23

State v. Robicheaux, 865 So.2d 149 (La.App. 5th Cir. 2003)

24

State v. Gay, 830 So.2d 356 (La.App. 2nd Cir. 2002)

24

State v. Pickett, 628 So.2d 1333 (La.App. 2d Cir.1993), writ denied, 94-0348
(La.05/20/94), 637 So.2d 476

24

State v. Nelson, 467 So.2d 1159 (La.App. 2d Cir.1985)

24

State v. Williams, 445 So.2d 1171 (La.1984)

24

State v. Mills, 505 So.2d 933 (La.App. 2d Cir.), writ denied, 508 So.2d 65 (La.1987)

24

State ex rel. Roper v. Cain, 763 So.2d 1 (La.App. 1st Cir. 1999)

26

Deloch v. Whitley, 684 So.2d 349 (La. 1996)

26

State v. Langley, 711 So.2d 651 (La. 1998)

26

Ellis v. Lynaugh, 873 F.2d 830, 840 (5th Cir. 1989)

27

Page 10

Statutes
La.R.S. 14:(27) 30.1

12

La.R.S. 14:64

12

28 U.S.C. 2254

12

28 U.S.C. 2244(d)

13

28 U.S.C.A. 2249

13

La.Code Crim.P. Arts. 533(1) & 535 D

26

Page 11

III. STATEMENT OF THE CASE

1. Prior Proceedings
Since the conviction was by a jury, which convicted Petitioner of attempted second degree
murder (La.R.S. 14:(27) 30.1) and armed robbery (La.R.S. 14:64), the State initially contends that
since none of Petitioners claims raised in this Petition have been properly appealed to any state
appellate court, Petitioner did not exhaust all of his state court remedies as required by federal habeas
corpus statutes.
28 U.S.C. 2254 requires that the Petitioner exhaust all of his state remedies. 2254 states:
(a) The Supreme Court, a Justice thereof, a circuit judge, or a district court shall
entertain an application for a writ of habeas corpus in behalf of a person in custody pursuant
to the judgment of a State court only on the ground that he is in custody in violation of
the Constitution or laws or treaties of the United States.
(b)(1) An application for a writ of habeas corpus on behalf of a person in custody
pursuant to the judgment of a State court shall not be granted unless it appears that
(A) the applicant has exhausted the remedies available in the courts of the
State;...
Therefore, since Petitioner failed to exhaust his state remedies by pursuing a writ application to the
Louisiana Supreme Court after his conviction was affirmed on appeal, and since Petitioner failed to
raise the issues with an appellate court that he is attempting to raise in this habeas petition for the
first time, in accordance with 28 U.S.C. 2254, the present application should not be granted.
In addition, Petitioner filed an Application for Post Conviction Relief, and the trial court
denied that application after a post conviction relief trial. Petitioner attempted to appeal that denial
of Post Conviction Relief, but the appellate court dismissed the appeal and granted Petitioner an
additional thirty days (from December 28, 2011) to file an Application for Supervisory Relief.
Petitioner did not timely file such an Application. Instead Petitioner chose to file this Petition Under
Page 12

U.S.C. 2254 For Writ of Habeas Corpus By A Person In State Custody on April 21, 2014, over one
year after the time limit for filing had expired. Petitioner has filed the present petition here in federal
court, without exhausting his state remedies.
Petitioners conviction became final on January 27, 2012, and he failed to file the instant
Petition within one year of that date, as required by The Antiterrorism and Effective Death Penalty
Act of 1996 (AEDPA), 28 U.S.C. 2244(d). Petitioner filed the instant Habeas Petition on April
21, 2014, over one year after his time to file such a case had prescribed. Therefore, Petitioners
instant Petition is not timely filed, and should be dismissed by this Court. 28 U.S.C.A. 2249 also
requires that the Petitioner attach a certified copy of the Indictment, which Petitioner has failed to
include in his attachments. In the interest of timeliness and efficiency in providing the required
documents to this Court, the State attaches in its exhibits the Indictment in this matter.
Despite the objections raised above, which Respondent argues is more than sufficient to deny
Petitioners petition on the basis of non-exhaustion and timeliness alone, should the Court determine
that it desires to examine Petitioners claims, then Respondent herein urges this Court to deny the
petition, as its claims are without any basis in law or fact.
A. Acadia Parish Case
Petitioner, Jeremy Smith, was indicted by an Acadia Parish grand jury on July 23, 2004 for
the April 7, 2004 attempted second degree murder and armed robbery of an off duty U.S. Postal
Service mail carrier in Acadia Parish. Petitioner had been identified by the victim by name and by
picking him out of a photo lineup while at a Lafayette hospital prior to life saving surgery
Petitioner was arraigned and pled not guilty. He was present at arraignment with his defense
attorney, Clay Lejeune, and attorney Clay Lejeune continued to represent him throughout the case

Page 13

up through his conviction on January 26, 2007. Petitioner was convicted by a petit jury, and was
sentenced by J. Krystian Earles on August 8, 2007 to serve forty (40) years at hard labor for the
attempted second degree murder and fifty (50) years on the armed robbery, to run consecutive with
each other. [TR at 199] The Acadia Parish clerk of court minutes and clerk of courts official record
show that Petitioner filed a number motions and pleadings prior to his trial. [TR at 38 (Motion for
Discovery and Inspection); TR at 43 (Motion for Preliminary Examination); TR at 133 (Motion for
Clothing for Defendant); TR at 136 (Motion for Severance of Offenses); TR at 139 (Motion for
Election to Proceed); TR at 141 (Pretrial Motions); TR at 146 (Amending Motion for Discovery)].
Petitioner has filed numerous post-conviction motions [TR at 163 (Motion For New Trial);
TR at 187 (Motion to Reconsider Sentence); TR at 190 (Motion for Appeal)], an appeal, and a state
Application for Post Conviction Relief, which were denied. He did not filed a Writ Application with
the Louisiana Third Circuit Court of Appeal, despite being granted a thirty day period to do so after
his improperly filed writ application was dismissed, and he has filed no Applications for Supervisory
and/or Remedial Writs to the Louisiana Supreme Court. All of his filings and the court rulings have
been attached to this Answer. See State v. Jeremy Smith , 984 So.2d 238 (La.App. 3rd Cir. 2008);
State v. Jeremy Smith, unpublished ruling, Dkt. No. 11-1371 (La.App. 3rd Cir. 2011).
B. Appeal of Conviction
Petitioner hired attorney Daniel Stanford and filed a timely appeal. In his sole assignment
of error, appellate counsel Stanford argued the evidence adduced at trial was not sufficient to support
the conviction. The Third Circuit affirmed the conviction. State v. Jeremy Smith , 984 So.2d 238
(La.App. 3rd Cir. 2008). Petitioner did not file any application for writ or supervisory relief with the
Louisiana Supreme Court, and the conviction became final.

Page 14

C. Post Conviction Relief

In April 2010, the Defendant filed in the trial court an application for post-conviction relief.
A hearing on the application was held on January 26, 2011. The trial court adjourned and continued
the hearing on May 4, 2011. The trial court denied the application after hearing extensive testimony
from defendants trial attorney, Clay Lejeune. Following the denial by the trial court, the
Defendant's attorney moved for an appeal. On May 19, 2011, the Defendant filed in the trial court
a Petitioner's Notice of Appeal/Writ From Denial of PostConviction Relief Application. The trial
court granted the appeal on March 26, 2011, and Defendant filed an Appeal with the Third Circuit
Court of Appeal. But on November 7, 2011, the Third Circuit Court of Appeal issued a rule to show
cause why the appeal in this case should not be dismissed as the judgment at issue was not an
appealable judgment.
The Defendant filed a brief with the Third Circuit in response to the rule in which he
acknowledged that the judgment is not an appealable judgment. The Third Circuit then dismissed
Defendants appeal motion, but granted Defendant an additional thirty (30) days to file a proper
application for supervisory writs. State v. Smith, Not Reported in So.3d, 2011 WL 6849641
(La.App. 3 Cir.), 2011-1371 (La.App. 3 Cir. 12/28/11). However, no such application was filed by
Defendant with the Third Circuit Court of Appeal, and no application for relief was subsequently
filed by Defendant with the Louisiana Supreme Court.
D. Habeas Filing
Defendant, after having his improper appeal dismissed by the Third Circuit Court of Appeal,
and well after the time delays had run to filed a timely habeas petition, filed the instant pleading here
in federal court on April 21, 2014. Respondents argue that Defendant/Petitioner failed to exhaust

Page 15

his appellate remedies and has failed to file the present habeas proceeding within the time limits
prescribed by federal law. Petitioners conviction became final on January 27, 2012, and he failed
to file the instant Petition within one year of that date, as required by The Antiterrorism and Effective
Death Penalty Act of 1996 (AEDPA), 28 U.S.C. 2244(d). Therefore, Petitioners instant Petition
is not timely filed, and should be dismissed by this Court. Petitioner has also failed to exhaust his
state court remedies as required by 28 U.S.C. 2254, which would have allowed the state courts a
fair opportunity to review the case and grant him any relief that he may have been entitled to. For
these reasons, Respondents argue that the instant Petition should be dismissed by this Court.
2. Procedural Facts of the Case
Petitioner was indicted by an Acadia Parish grand jury on July 23, 2004, for Attempted
Second Degree Murder of Thad Guidry [La.R.S. 14:27 (30.1)] and Armed Robbery [La.R.S. 14:64].
He was arraigned on August 11, 2004, and was represented from that date through trial by his
attorney, Clay Lejeune. Petitioners attorney filed numerous motions, which came before the court
on various dates, many of which were granted. Petitioner filed a pro se Motion to Quash (alleging
he was not timely prosecuted and was did not receive a trial within the time limitations under
Louisiana law) which was heard on August 23, 2006 by the Court, and which was denied.
Additional pretrial motions were heard by the Court on November 14, 2006, and trial was set for
January 22, 2007. Petitioner filed additional motions which were heard on January 23, 2007.
Specifically, Petitioner had subpoenaed a witness, Dante Williams, who had been personally served
for trial but had not appeared. Petitioner then moved for that witness to be brought by law
enforcement to court, which the Court ordered. The State had been unable to locate and talk to
Dante Williams since the date of the offense, as his name had come up as a friend of the defendant

Page 16

and someone who may have some knowledge of the defendants whereabouts on the date of the
offense. Williams was located and brought before the Court, and the Court ordered him held by law
enforcement throughout the trial.
Trial commenced, and evidence was introduced in the form of testimony of various
witnesses, including the victim in the case, which showed that the defendant had asked the victim
for a ride to a place outside of Rayne where the defendants friends were supposed to be fishing. At
some point on a secluded gravel road, the defendant asked the victim to stop so the defendant could
urinate, and the victim complied. When the defendant returned to the car, he was pointing a 9mm
pistol at the victim, telling the victim to give him the keys and get in the trunk. When the victim
refused, the defendant shot him multiple times in the upper chest, left him to die in the ditch, and
drove off in the victims car.
The victim was able to tell law enforcement and EMS personnel who the shooter was, as he
knew him by his nickname Fice, and had delivered mail to his house. Until the date of trial, the
State had not been able to ascertain a motive for the shooting and armed robbery, other than that the
defendant had wanted the victims car. However, Dante Williams testified at trial that on the date
of the shooting, he had been at his relatives house in Houston, and the defendant had made plans
to come visit him in Houston. The defendant had planned to ride the bus to Houston, but when he
called Dante Williams from somewhere on the interstate between Rayne and Houston, defendant told
Williams that he was not on the bus, but was driving a vehicle.
The defendant was convicted by the jury on both counts, and was sentenced on August 8,
2007 to serve forty (40) years at hard labor for the attempted second degree murder and fifty (50)
years on the armed robbery, to run consecutive with each other. Defendant appealed, and in his sole

Page 17

assignment of error, appellate counsel Stanford argued the evidence adduced at trial was not
sufficient to support the conviction. The Third Circuit Court of Appeal affirmed the conviction.
State v. Smith, 984 So.2d 238 (La.App. 3rd Cir. 2008).
Petitioner has now filed the instant federal habeas corpus case, with four claims:
1) Issue 1 (claim that Petitioners trial counsel and appellate counsel were ineffective
throughout the trial and appeal) is not a proper claim for this habeas proceeding, in that Petitioner
did not raise this issue on his appeal, nor did he appeal this issue after a trial on his post conviction
relief allegations. In addition, Petitioner did not file this claim within the time limitations set forth
in 28 U.S.C. 2244(d).
2) Issue 2 (claim that the Petitioner was denied due process because trial witnesses testified
during trial and referred to the defendant in that testimony, that a former U.S. Marine, the victim in
the case, testified that he recognized the pistol carried by the defendant as a 9mm, and the
ammunition was full metal jacket rounds, and the prosecutor made a closing argument to the jury
that defendant claims was prejudicial to him) is not a proper claim for this habeas proceeding, in that
Petitioner did not raise this issue on his appeal. In addition, Petitioner did not file this claim within
the time limitations set forth in 28 U.S.C. 2244(d). In the alternative, if this Court finds that these
claims can properly be brought before this Court even though they were not raised on appeal and are
untimely, then these claims are without merit, as the witnesses testified at trial without objection by
trial counsel, the victim was not an expert witness at trial but was allowed by the court to testify as
to what he saw and knew from his military experience about weapons and ammunition, and closing
arguments are, by definition, going to be prejudicial to the defendants, as the prosecutor argued to
the jury that this defendant committed the acts for which he was charged.

Page 18

3) Issue 3 (claim that the sentence imposed in this case was excessive because Petitioner
claims that the trial court should have run his sentences for attempted second degree murder and
armed robbery concurrent) is not a proper claim for this habeas proceeding, in that Petitioner did not
raise this issue on his appeal. In addition, Petitioner did not file this claim within the time limitations
set forth in 28 U.S.C. 2244(d). In the alternative, if this Court finds that this issue is properly
before it in this habeas proceeding, then this claim is without merit, as the trial court had the ability
and discretion to run the sentences consecutively in this case, and was proper in doing so.
4) Issue 4 (claim that the selection of the grand jury foreman somehow resulted in
discrimination against the defendant by way of race and gender) is also not a proper claim for this
habeas proceeding, in that Petitioner did not raise this issue on his appeal. In addition, Petitioner did
not file this claim within the time limitations set forth in 28 U.S.C. 2244(d). In the alternative, if
this Court finds that this issue is properly before it in this habeas proceeding, then this claim is
without merit, as the grand jury members are picked randomly by the sheriff deputy from the clerks
box of potential jurors. In this case, since the grand jury foreperson was absent on the date the
instant case was presented to the grand jury, the state made a formal motion to the court for the
appointment of a temporary foreperson, and the court made such an appointment. The court
appointed the next grand juror present that date, based on the random order they were picked when
the grand jury session began in March of 2004.

IV. QUESTIONS OF LAW

1. Were Petitioners trial counsel and initial appellate counsel ineffective throughout the
trial and appeal, when they filed numerous motions and fought valiantly at trial for
a acquittal, then filed a timely appeal with the proper court of appeal?
2. Was Petitioners denied due process because trial witnesses testified during trial and
Page 19

referred to the defendant in that testimony, that a former U.S. Marine, the victim in
the case, testified that he recognized the pistol carried by the defendant as a 9mm,
and the ammunition was full metal jacket rounds, and the prosecutor made a closing
argument to the jury that defendant claims was prejudicial to him?
3. Was the sentence imposed in this case excessive because Petitioner claims that the trial
court should have run his sentences for attempted second degree murder and armed
robbery concurrent?
4. Did the selection of the grand jury foreperson somehow result in discrimination against
the defendant by way of race and gender?

V. ARGUMENT
1. ISSUE 1 (Petitioners trial counsel and initial appellate counsel were not ineffective
throughout the trial and appeal, when they filed numerous motions and fought
valiantly at trial for a acquittal, then filed a timely appeal with the proper court
of appeal).
In order to prevail on an ineffective assistance of counsel claim, defendant must initially
show a deficient performance by his attorney, with errors so serious that the attorney was not
functioning as counsel guaranteed by the Sixth Amendment. Second, the defendant must show
that he was prejudiced as a result of his attorneys deficient performance. Strickland v. Washington,
466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); State v. Fuller, 454 So.2d 119 (La. 1984).
The defendant is not guaranteed errorless counsel judged ineffective by hindsight, but counsel
reasonably likely to render effective assistance. Judicial scrutiny must by highly deferential and
claims of ineffective assistance are to be assessed on the facts of the particular case as seen from the
counsels perspective at the time, hence, courts must indulge a strong presumption that counsels
conduct falls within the wide range of reasonable professional assistance. State v. LaCaze, 824
So.2d 1063 (La. 2002).
The Louisiana Supreme Court, in State v. Brooks, 505 So.2d 714 (La. 1987) stated that
Page 20

hindsight is not the proper perspective for judging the competence of counsels trial decisions.
Neither may an attorneys level of representation be determined by whether a particular strategy is
successful. Brooks, supra, at 724.

Defendant has claimed that his counsel could have done several

things differently just prior to trial and at trial. First, in hindsight, defendant claims that his trial
attorney failed to object to trial witnesses testimony in which the witnesses described the defendant
as the shooter, the killer, the guy who shot somebody.
Defendant does not reference the pages of the record in which his allegedly prejudicial
testimony appears, so it is difficult for Respondents to respond to this allegation. In addition,
defendant claims that his trial attorney was ineffective for failing to object when the victim described
the weapon and ammunition of the defendant, and that his appellate attorney was ineffective for
failing to raise additional issues on appeal. The weakness in this argument is that defense counsel
very likely had a particular strategy in dealing with the victims prior military service in this case,
and not objecting to the victims testimony actually may have bolstered that strategy. Defendants
attorney likely had a trial strategy that called for avoiding bringing any more credibility to the
victims testimony regarding weapon and ammunition type, especially when the victim testified to
his military experience with the weapon and ammunition.
As to the claim that closing argument remarks should have been objected to by defense
counsel, closing arguments are by definition going to prejudice the defendant, and if the defendant
is referred to as a shooter or a killer because the evidence presented at trial showed that he shot
someone multiple times in the chest to take a car, then those words are truthful, not prejudicial. It
appears that Petitioner complains about closing argument statements such as He never said anyone
else did it. He identified the shooter every time as Fice from Rayne. TR at 600. Respondent has

Page 21

reviewed the voluminous record but has been unable to locate any instances where the Petitioner was
referred to as killer by the State. As to Petitioners initial appellate counsels effectiveness, he
filed a timely appeal with an issue that he deemed appealable, and was able to get that issue properly
before the appellate court for review. Clearly, attorney Daniel Stanford knew the law in Louisiana
and was able to timely file a proper appeal and was not ineffective.
Under Brooks, supra, defendants counsels trial strategies should not be viewed in hindsight
to attempt to determine whether defendant was denied effective assistance of counsel. This strategy
may have been as a result of defendants telling his trial attorney that he had nothing to do with the
shooting, right up until the trial began, when he told his attorney that he had been involved, but that
someone else had shot the victim. The defendant has not shown a deficient performance by his
attorney, with errors so serious that the attorney was not functioning as counsel guaranteed by the
Sixth Amendment. Therefore, defendant has not successfully shown that he has met the first prong
of the Strickland test, and therefore did not have ineffective assistance of counsel. Defendant also
has not met the second Strickland prong- that he was prejudiced by his counsels decisions.
Defendants attorney, Mr. Clay Lejeune, provided an excellent defense throughout the case,
first by filing discovery and other preliminary motions, then by filing effective pre-trial motions,
some of which were granted by the court. Defendants counsel cross examined all of the States
witnesses, and was effective enough to keep the sentence for armed robbery to only 50 years, instead
of the maximum of 99 years, and the sentence for attempted second degree murder to only 40 years.
Without such a skilled defense attorney, Defendant could have been sentenced to over 148 years in
prison, and would not have had as fair a trial.
2. ISSUE 2 (Petitioner was not denied due process because trial witnesses testified
during trial and referred to the defendant in that testimony, when a former U.S.
Page 22

Marine, the victim in the case, testified that he recognized the pistol carried by
the defendant as a 9mm, and the ammunition was full metal jacket rounds, and
the prosecutor made a closing argument to the jury that defendant claims was
prejudicial to him, in that references were made to defense witnesses who had
not testified, and the defendant was referred to as the shooter, etc.)
Respondents reurge their objections as to timeliness and failure to exhaust state remedies,
which should bar this Petition by Petitioner Smith. However, Respondents note that the trial court
was not faced with objections by defense counsel to any of the above claims by Petitioner at the trial
of this case, and trial strategy by defense counsel is not to be second guessed by an appellate court
in an appeal argument for ineffective assistance of counsel. These witness statements were not
objected to at trial, were not appeal issues, and therefore have never been considered in this case
prior to this habeas proceeding. But even if there had been a defense objection, a witness with prior
military experience, testifying as to the type and caliber of a pistol and ammunition that was the main
service weapon and ammunition while he served in the USMC, was proper and would not have
survived an objection. It does not take an expert to testify to this type of issue- experience and
training alone can allow a witness to testify to this issue.

As to closing arguments, again no

objection was made at trial, the issue was not raised on appeal, and as to an ineffectiveness claim,
it is likely that defense counsel did not want to bring any attention to the statements in the closing,
as any objection by him would likely have been denied, and the jury would have paid them even
more attention. Therefore, the State contends that this claim by Petitioner should be denied.

3. ISSUE 3 (Petitioners sentence in this case was not excessive, and the judge had the
ability and the discretion to run these sentences for attempted second degree
murder and armed robbery consecutively.)
Respondents reurge their objections as to timeliness and failure to exhaust state remedies,
which should bar this Petition by Petitioner Smith. However, Respondents note that the Louisiana
Page 23

attempted second degree murder statute, La.R.S. 14:27 (30.1), provides that Defendant could have
been sentenced to one half the maximum of life, or 50 years at hard labor. For the armed robbery,
La.R.S. 14:64, the Defendant could have been sentenced to 99 years at hard labor. The trial judge
is given wide discretion in sentencing, and absent manifest abuse of discretion, a sentence imposed
within the statutory limits will not be deemed excessive. State v. Howard, 283 So.2d 199 (1973).
The court, to find a sentence excessive, must find that the penalty is so grossly disproportionate to
the severity of the crime as to shock our sense of justice or that the sentence makes no measurable
contribution to acceptable penal goals and, therefore, is nothing more than needless imposition of
pain and suffering. State v. Bonnano, 384 So.2d 355 (La. 1980).
The trial judge in this case sentenced the defendant to 60.4% of the maximum number of
years allowed by the statutes. However, prior to sentencing the defendant, the trial judge examined
the presentence investigation report, and heard from the victim and defendants attorney. The
defendant himself chose not to testify at the sentencing hearing. The trial judge examined a number
of aggravating and mitigating factors present in this case, and the State contends that the trial judge
determined that the seriousness of the offense, and the fact that the defendant used actual violence
in the commission of the offense, were overriding aggravating factors.
A Pre-Sentence Investigation was reviewed by the trial judge prior to the sentencing hearing
on August 8, 2007. The trial judge in this case stated for the record that he had considered the
aggravating and mitigating factors involved in the case, since he had presided over the trial. The
judge considered the PSI, and the aggravating and mitigating factors of La.C.Cr.P. Art. 894.1.
In a case with similar sentencing considerations, the manager of a Grand Isle motel was
approached by the defendant, and a struggle ensued. The defendants gun went off near her head,

Page 24

and she was able to escape and call police. The defendant was convicted of attempted armed robbery
and attempted second degree murder, and sentenced to 49 1/2 years for attempted armed robbery and
sentence of 50 years for attempted second degree murder, to be served concurrently. State v.
Robicheaux, 865 So.2d 149 (La.App. 5th Cir. 2003). Even though it was the statutory maximum, the
appellate court held that the sentence was not excessive.
In another case that is strikingly similar to the instant one, a defendant was convicted of
attempted second degree murder and armed robbery, and was sentenced to 99 years at hard labor for
armed robbery and 50 years for attempted second degree murder, to be served consecutively. The
appellate court stated that the maximum sentence was not excessive, as the defendant showed no
remorse for robbing and shooting the 67-year-old victim, attempting to shoot her a second time, and
then leaving her for dead as he sought to steal her car. State v. Gay, 830 So.2d 356 (La.App. 2nd Cir.
2002). That court noted:
Concurrent sentences arising out of a single course of conduct are not mandatory. State v.
Pickett, 628 So.2d 1333 (La.App. 2d Cir.1993), writ denied, 94-0348 (La.05/20/94), 637
So.2d 476; State v. Nelson, 467 So.2d 1159 (La.App. 2d Cir.1985). Nor are consecutive
sentences under those circumstances necessarily excessive. Ortego, supra; State v. Williams,
445 So.2d 1171 (La.1984); State v. Mills, 505 So.2d 933 (La.App. 2d Cir.), writ denied, 508
So.2d 65 (La.1987). In imposing the chosen sentence, the trial court noted the victim's age,
Gay's lack of remorse and the victim's impact statement which indicated that the victim is
required to take medication since this incident and that for quite some time was afraid to
leave her home. Additionally, the court was obviously impressed by the nature and
viciousness of the attack and Gay's disregard for the life and property of others. We find
these factors more than adequate to justify the imposition of consecutive sentences in this
*368 case and amply reflect the court's reasons for the consecutive terms. State v. Gay,
supra, at 367-368.
The State argues that the sentence imposed in this case was fair and was not excessive, given
the fact that the defendant was indicted for attempted second degree murder and armed robbery, went
to trial and the jury returned a guilty verdict on both counts. Considering the testimony of the victim

Page 25

that he was shot multiple times in the chest and upper body and left for dead on a country road in a
rural parish while the defendant stole his car, the State argues that this was a very serious crime. The
defendant never showed remorse or took responsibility for this crime. The sentence imposed by the
trial court was within the statutory range, and is not grossly disproportionate or shocking in light of
the defendants extensive criminal record. This consecutive sentence, considering the needless fear
and anxiety caused by the defendants shooting of the victim in this case, is not excessive.
Therefore, defendants sentence is not excessive as he claims, nor is the consecutive sentence
ordered by the trial judge excessive.
4. ISSUE 4 (claim that the selection of the grand jury foreman somehow resulted in
discrimination against the defendant by way of race and gender)
Respondents reurge their objections as to timeliness and failure to exhaust state remedies,
which should bar this Petition by Petitioner Smith. However, Respondent notes the following if the
Court desires to examine the issue. The grand jury was empaneled for the spring term of 2004, the
foreman (Norma Washington) was the first person picked by the bailiff from the potential juror box.
The second grand juror was Nathaniel Harmon, and the third was Nelda Turner. When the grand
jury convened on July 23, 2004 to hear the present case, the foreman was not present, so the State
motioned the presiding judge to appoint another foreman, and presiding judge did so. By that date,
Nathaniel Harmon had moved out of state and was not present, so the presiding judge appointed as
foreman Nelda Turner, the next person who had been randomly picked from the box during
empaneling. Nelda Turner signed the indictment on the Petitioner. In the clerks jury system, the
records of the clerkwill say name, address, ward and precinct, and date of birth. Respondent does
not have personal recollection of race or gender of either of the grand jurors (Norma Washington or
Nelda Turner), although from their names, it is likely they are both women.
Page 26

In State ex rel. Roper v. Cain, 763 So.2d 1 (La.App. 1st Cir. 1999), the appellate court
examined whether a complaint regarding the selection of grand jury foreman could be made for the
first time at the appellate level, without the issue being preserved for appeal by a trial court motion
to quash. That court stated:
The district court in the instant case determined relator's complaint regarding the selection
of the grand jury foreman was not preserved for review because relator did not file a pretrial
motion to quash. An equal protection claim based upon discriminatory selection of the grand
jury foreman is barred if the defendant fails to file a pretrial motion to quash. La.Code
Crim.P. arts. 533(1) & 535 D; Deloch v. Whitley, 96-1901 (La.11/22/96), 684 So.2d 349. In
*5 State v. Langley, 95-1489 (La.6/19/98), 711 So.2d 651, 675 (on rehearing), the Louisiana
Supreme Court (citing Campbell v. Louisiana) remanded a case for an evidentiary hearing
on the defendant's allegation that the foreperson of the grand jury was selected in an
intentionally discriminatory manner. In doing so, the court indicated the issue had been
properly raised before trial. In this matter presently before the court, unlike the defendants
in Campbell and Langley, relator did not preserve the issue for review. State ex rel. Roper
v. Cain, supra at 4-5.
In this case, Petitioner did not file a pretrial motion to quash based on any grand jury foreman
selection process to preserve the issue for appeal, nor did Petitioner raise that issue in his appeal (nor
did he file any application for supervisory relief with the Louisiana Supreme Court), in his
application for post conviction relief, nor did he even appeal his denial of post conviction relief (or
file any application for supervisory relief with the Louisiana Supreme Court). Therefore, he did
not preserve the issue for review.
Respondent can see no way that the temporary assignment of the next picked and present
grand juror to act as foreman in any way discriminated against him by way of race or gender.
Respondent respectfully urges this Court to deny Petitioners claim.
VI. Conclusion
Respondent respectfully submits that it has demonstrated that all of Petitioners claims are
either lacking in merit or procedurally barred from federal review or both. Since all of the claims
Page 27

may be decided upon the record itself, no evidentiary hearing is warranted. Ellis v. Lynaugh, 873
F.2d 830, 840 (5th Cir. 1989). Accordingly, it is respectfully submitted that this application for
habeas corpus should be denied.

__________________________________
FREDERICK L. WELTER, #23,360
ASSISTANT DISTRICT ATTORNEY
15TH JUDICIAL DISTRICT-ACADIA
PARISH COURTHOUSE, 3RD FLOOR
P.O. BOX 288
CROWLEY, LOUISIANA 70527
(337) 788-8831
Counsel for Respondent
CERTIFICATE
I HEREBY CERTIFY that a copy of the above and foregoing instrument has this day
been forwarded to all parties and/or counsel of record by depositing a copy of same in the United
States Mail, postage prepaid and properly addressed.
Crowley, Louisiana, this August 11, 2014.
_________________________
FREDERICK L. WELTER
ASSISTANT DISTRICT ATTORNEY

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Attachments:
A
B
C
D
E
F
G

Page 29

Defendants Appeal Brief regarding Trial

States Appeal Brief regarding Trial
Third Circuit Opinion on Defendants Appeal regarding Trial
Defendants Appeal Brief regarding denial of Post Conviction Relief
Third Circuit Opinion on Defendants Appeal regarding Post Conviction Relief
Transcript of Trial and Pretrial Issues, and Pleadings and Memoranda filed
Transcript of Post Conviction Trial