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Pierre v. Vannoy

United States Court of Appeals, Fifth Circuit

May 23, 2018

ALBERT NORMAN PIERRE, SR., Petitioner - Appellee

          Appeal from the United States District Court for the Eastern District of Louisiana

          Before WIENER, GRAVES, and HO, Circuit Judges.

          JAMES C. HO, Circuit Judge

         A Louisiana jury found Albert Norman Pierre, Sr., guilty of aggravated rape of a child under the age of thirteen. During his trial, the child (C.C.) testified that she had not been "sexually active, " other than Pierre's abuse. Over a year later, C.C. informed authorities for the first time that another adult molested her during the same period of time that Pierre molested her.

         Pierre subsequently sought post-conviction relief, arguing that C.C. perjured herself at trial by denying that she was "sexually active" other than Pierre's abuse. The Louisiana Supreme Court denied Pierre's request. Pierre then sought federal habeas relief.

         Congress has directed that federal courts may not grant habeas relief unless the state court's decision was contrary to, or involved an unreasonable application of, clearly established federal law, as determined by the Supreme Court of the United States. 28 U.S.C. § 2254(d)(1). We have observed that "clearly established Supreme Court precedent demands proof that the prosecution made knowing use of perjured testimony" to establish a constitutional violation. Kinsel v. Cain, 647 F.3d 265, 272 & n.26 (5th Cir. 2011) (emphasis added). And the district court found "no evidence to suggest that the State (or anyone whose knowledge was imputable to the State) knew that C.C. was offering false testimony at trial." Yet the district court granted habeas relief anyway, in a three-page order devoid of Supreme Court and Fifth Circuit precedent. We reverse.


         C.C. lived with her grandmother and Pierre, her grandmother's boyfriend. When she was twelve, C.C. told her parents that Pierre had been molesting her for six years. C.C.'s parents immediately notified authorities. Pierre was subsequently indicted for aggravated rape of a female juvenile under thirteen, in violation of Louisiana Revised Statute § 14.42A(4).[1]

         At trial, C.C. described an occasion when Pierre took her for a medical exam to determine whether she had been sexually active. According to C.C., the nurse practitioner declined to conduct a physical exam based on C.C.'s representation that she was not sexually active. This testimony prompted the prosecutor to inquire whether C.C. had been "sexually active other than the things that [Pierre] had done to you." C.C. replied "No."

         A jury found Pierre guilty, and the court sentenced him to life imprisonment at hard labor without parole, probation, or suspension of sentence. His conviction and sentence were affirmed on direct appeal. State v. Pierre, No. 2009 KA 0454, 2009 WL 3162246, at *1-3 (La. Ct. App. Sept. 11, 2009), review denied 31 So.3d 1054 (La. 2010).

         Over a year later, C.C. revealed that Michael Percle-the son-in-law of C.C.'s legal guardian-had also molested her during the same period of time as Pierre's abuse. As the Louisiana Supreme Court explained:

C.C. testified that she did not reveal the abuse at the hands of Percle either before or during [Pierre's] trial, because she was afraid that if she did so, she would be removed from the home and deprived of her 'nanny, ' as in fact happened after [she came forward]. C.C. testified that she decided to come forward when her nieces, ages three and six, began visiting the Percle home and she became afraid that what had happened to her would happen to them.

State v. Pierre, 125 So.3d 403, 407 (La. 2013). The State investigated C.C.'s allegations, but declined to charge Percle.[2]

         Sixteen months later, the State informed Pierre's counsel that C.C. had made allegations against Percle. Pierre then sought post-conviction relief, arguing that he was denied due process because C.C. "recently recanted her testimony." The state trial court granted relief, ruling that Pierre "made a bona fide claim of actual innocence." The court of appeals affirmed. But a dissent emphasized that C.C. "never recanted her testimony regarding [Pierre] raping her." State v. Pierre, No. 2013 KW 0150, 2013 WL 12124006, at *1 (La. Ct. App. Apr. 5, 2013) (Crain, J., dissenting). As the dissent explained: "The victim's false statement that she was abused by no one else does not require a conclusion that the defendant did not rape her." Id.

         The Louisiana Supreme Court reinstated Pierre's conviction and sentence. Before that court, Pierre conceded that he could not satisfy the actual-innocence standard. He instead argued that the State's 16-month delay in disclosing C.C.'s allegations against Percle deprived him of due process. Pierre, 125 So.3d at 408-09. The court rejected Pierre's argument on prejudice grounds-by the time C.C. revealed Percle's abuse, the time for Pierre to file a new trial motion had already expired. Id. at 411 ("The passage of time, and not prosecutor Rhodes, thus dictated that [Pierre] cast his lot with the extraordinarily high [actual-innocence] standard as a basis for overturning his conviction and sentence in state post-conviction proceedings.").

         In the course of resolving this claim, the court also made clear that no state actor knew that C.C.'s trial testimony was false at the time of trial. Id. at 406, 410 (state unaware of "C.C.'s allegations against Michael Percle" before "November 2009").

         In February 2016, Pierre sought federal habeas relief arguing, as relevant here, that his conviction violated due process because C.C. had testified falsely. The magistrate judge rejected Pierre's claims under both Brady v. Maryland, 373 U.S. 83 (1963), and Napue v. Illinois, 360 U.S. 264 (1959)-as well as his argument that his conviction violated a freestanding due-process right to a fundamentally fair trial-because "the prosecution did not know and could not have known at the time of trial that there was anything false about C.C.'s testimony." Pierre v. Vannoy, No. 16-1336, 2016 WL 9024952, at *8-9, *10-18 (E.D. La. Oct. 31, 2016). As the magistrate judge explained, "the majority of federal circuit courts, including significantly the Fifth Circuit . . . require a petitioner to prove governmental knowledge of the false testimony, " and there is no Supreme Court precedent to the contrary. Id. at *14-17 ("[W]hen there is no Supreme Court precedent to control a legal issue raised by a habeas petitioner, the state court's decision cannot be contrary to, or an unreasonable application of, clearly established federal law, and no federal habeas relief is warranted."). Accordingly, the magistrate judge recommended denying relief.

         The district court adopted the magistrate judge's report and recommendation "in all respects"-except for its conclusion. Pierre v. Vannoy, No. 16-1336, 2017 WL 2267195, at *1-2 (E.D. La. May 23, 2017). Despite the undisputed fact that the State lacked knowledge of the falsity, the district court nevertheless granted the writ-ignoring sub ...

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