Grace v. Cain

Filing 97

ORDER AND REASONS this matter is STAYED AND ADMINISTRATIVELY CLOSED pending Petitioner's exhaustion of the new claims presented by the grand jury transcript in state court. If Petitioner fails to file a petition in Louisiana state court within 30 days of the entry of this order, any party may move to lift of the stay. Petitioner is FURTHER ORDERED to move to lift the stay or dismiss this case (if the state court grants his application) no later than 30 days following exhaustion of his state court remedies. Signed by Judge Jane Triche Milazzo.(ecm)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA

JESSIE J GRACE, III

CIVIL ACTION

VERSUS

NO. 02-3818

N. BURL CAIN

SECTION "H"(4)

ORDER AND REASONS
Before the Court is a Petition for Writ of Habeas Corpus (Doc. 25). During
the course of its review of this matter, the Court has concluded that disclosure
of grand jury testimony is warranted. Because the testimony reveals the
presence of several new claims, the Court STAYS this matter to permit
Petitioner the opportunity to properly exhaust his new claims in state court.
BACKGROUND
Petitioner Jessie Grace was convicted of second degree murder on January
14, 1994, after a jury trial in Louisiana state court. His conviction and sentence
1

became final on October 27, 1994. Petitioner sought post-conviction relief in
Louisiana state court. The denial of that petition became final on May 24, 2002.
On March 26, 2003, Petitioner filed a petition for writ of habeas corpus before
this Court. Judge Duplaintier dismissed the petition without prejudice but
granted Petitioner leave to refile the petition after exhausting his state court
remedies. Petitioner returned to this Court and filed an Amended Petition on
July 30, 2012. This petition is presently before the Court.
The Amended Petition was referred to a Magistrate Judge 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.
After the State responded to the Amended Petition, the Magistrate Judge issued
a Report recommending that the Amended Petition be dismissed with prejudice
because Petitioner's claims were procedurally defaulted.1 Petitioner objected to
the Report, conceding that his claims were procedurally defaulted, but arguing
that he was nonetheless entitled to review of the Amended Petition under the
Supreme Court's decisions in Schlup v. Delo and its progeny.2 This Court
granted Petitioner's objections in part, finding that Petitioner had presented
sufficient evidence of his innocence to warrant an evidentiary hearing.3 The

1

R. Doc. 36.

2

513 U.S. 298 (1995). Schulp held that a petitioner may obtain review of a successive
habeas petition if he can demonstrate that he is actually innocent of the crime for which he was
convicted. Id. at 316–17. The Supreme Court later held that a showing of actual innocence
was sufficient to overcome procedural default, House v. Bell, 547 U.S. 518, 522 (2006), and a
statute of limitations defense, McQuiggin v. Perkins, 133 S. Ct. 1924, 1932 (2013).
3

R. Doc. 36.

2

Court held an evidentiary hearing and ordered both pre- and post-hearing
memoranda. At the evidentiary hearing, Petitioner called a representative of
the Jefferson Parish District Attorney's Office, Terry Boudreaux, as a witness.
Mr. Boudreaux testified that he received a subpoena for the District Attorney's
file related to Petitioner and had turned over certain documents to Petitioner.
Mr. Boudreaux, however, declined to disclose certain non-discoverable
documents, including the grand jury testimony. Petitioner requested that the
Court conduct an in camera review of the withheld portions of the file to
determine whether disclosure was proper.
LAW AND ANALYSIS
The Court has reviewed the file and concludes that portions of the grand
jury testimony must be disclosed to Petitioner because the testimony reveals the
existence of potential habeas claims previously unavailable to Petitioner. In
light of this previously undisclosed testimony, this Court believes that Petitioner
may have unexhausted Brady,4 Napue,5 and Giglio6 claims. In this Order, the
Court first explains the basis for its authority to order the disclosure of the
testimony. Second, the Court explains why the content of the testimony merits
disclosure. Finally, the Court considers what procedural steps are necessary in
light of the new evidence.

4

Brady v. Maryland, 373 U.S. 83 (1963).

5

Napue v. People of State of Illinois, 360 U.S. 264 (1959).

6

Giglio v. United States, 405 U.S. 150 (1972).

3

I. The Court's Authority to Disclose the Grand Jury Testimony
Louisiana Code of Criminal Procedure article 434 provides, in pertinent
part, that "all persons having confidential access to information concerning
grand jury proceedings, shall keep secret the testimony of witnesses and all
other matters occurring at, or directly connected with, a meeting of the grand
jury." The article contains a few specific exceptions, none of which appear to be
applicable to the present case. The Louisiana Supreme Court has, however, held
that grand jury testimony may nonetheless be disclosed to a criminal defendant
under certain circumstances:
In some situations justice may require that discrete
segments of grand jury transcripts be divulged for use
in subsequent proceedings. Thus a trial court may act
upon a specific request stated with particularity and
review grand jury transcripts in camera to determine if
information contained therein is favorable to the
accused and material to guilt or punishment. The party
seeking disclosure bears the burden to show a
compelling necessity for breaking the indispensable
secrecy of grand jury proceedings. He must show that,
without the material, his case would be greatly
prejudiced or that an injustice would be done. If
allowed, disclosure must be closely confined to the
limited portion of the material for which there is
particularized need. In any event, disclosure is left to
the sound discretion of the trial court whose ruling will
not be reversed absent an abuse of that discretion.7
Thus, before the Court can disclose any portion of the grand jury testimony
to Petitioner, it must find that there is a compelling necessity for the disclosure
7

State v. Higgins, 898 So. 2d 1219, 1241 (La. 2005).

4

and that, in the absence of the disclosure, Petitioner would be greatly prejudiced.
The Court finds that disclosure is warranted.
II. The Merits of Disclosure
In assessing the merits of disclosure, the Court must necessarily discuss
the evidence that formed the basis of Petitioner's conviction.
Petitioner was convicted of the murder of Wayne Palmer. The evidence at
trial demonstrated that, on the day of the shooting, Palmer traveled to the
Jefferson Place apartment complex with his girlfriend Michelle Temple. Upon
arriving at the complex, Palmer approached two individuals, Sherman Moses
and Troy McCloud, seeking to purchase a quantity of crack cocaine. Neither
Moses nor McCloud had any crack for sale, but Moses led Palmer to another
group of men. One of the men in the group indicated that he had some crack for
sale. Palmer then accompanied several individuals into an alley to consummate
the sale. A few minutes later, Palmer ran out of the alley. As Palmer was
running, he was shot twice. One of the gunshot wounds caused his death. These
underlying facts appear to be relatively undisputed.
The Investigation
The investigation into Palmer's death did not reveal any usable physical
evidence or a murder weapon.

The Jefferson Parish Sheriff's Office was,

however, able to contact and interview two witnesses on the day of the shooting.
The first, Temple, told detectives that she did not see and could not identify the
shooter. The only individuals present at the scene whom she recognized were

5

Moses and "Jermal."8 She reported that, after she saw Palmer fall to the ground,
she ran up to him. As she was running up to Palmer, she saw a short, darkskinned black man wearing blue "dickie" pants and a black or dark blue Raiders
shirt kneeling over Palmer and holding something to Palmer's head. When she
arrived at Palmer's side, a second individual wearing a striped shirt threatened
her.
Detectives also interviewed Moses on the day of the shooting. Moses told
detectives that only two individuals accompanied Palmer into the alley,
Petitioner and Derek Hudson. Moses stated that Hudson was attempting to sell
Palmer crack when Petitioner suddenly pulled out a pistol and ordered Palmer
to give up his money. Moses told detectives that Petitioner shot Palmer as he
ran away. When pressed by detectives as to whether he had actually seen the
shooting, Moses said that he had not.9 Moses reported that Petitioner was
wearing a khaki shirt and pants and that Hudson was short and wearing blue
dickies and a black and gold Saints shirt.
The Trial
At trial, the State called Moses, Temple, and Hudson to testify. Temple's
testimony was largely consistent with her statement to detectives.

She

reiterated that she did not know who shot Palmer and that the lead detective,
Sgt. Snow, had showed her several photos but that she could not identify anyone.
8

"Jermal" was never identified.

9

The precise statement was: "Q: You saw [Grace] pull the gun and shoot him?; A: I aint
saw it, you can put it like that, he killed him. He killed him cause he was the only asshole that
do shit like that."

6

Moses's testimony, however, differed significantly from his previous
statement.

At trial, Moses offered substantially more detail than he had

originally provided the detectives. He testified that, after Petitioner and Hudson
went into the alley, Petitioner struck Palmer in the face with his gun. Hudson
then reached over, took Palmer's jewelry, and told Petitioner that he could have
the money.

Palmer began pleading, "Please, don't shoot me," just before

Petitioner shot him. After being shot, Palmer got up and ran a short distance.
While he was running away, Petitioner shot Palmer three more times, hitting
him in the back of the head.
Moses admitted that he was on drugs at the time of the shooting. He also
admitted that he had previously been convicted of purse snatching and
motorbike theft and that he had a pending charge for possession of stolen
property. He testified that, despite his pending charge, the State had not made
any promises to him in exchange for his testimony. On cross examination,
Moses admitted that he gave a statement to detectives on the day of the
shooting. Moses was specifically asked whether he had told the police that he
did not actually see the shooting. He denied making such a statement. The trial
judge did not permit the defense attorney to impeach Moses with the prior
statement.
Hudson testified that, on the day of the shooting, he did not have any
drugs available for sale. According to Hudson, it was Petitioner who attempted
to sell crack to Palmer in the alley. Hudson testified that, after Petitioner sold
the drugs to Palmer, Petitioner hit Palmer in the face with his gun, robbed him,
7

and shot him as he ran away. Hudson claimed that he was a mere bystander to
the shooting.
The trial court held a hearing outside the presence of the jury to determine
whether Hudson had been offered anything by the State in exchange for his
testimony. Hudson testified that, in the weeks before trial, he was arrested on
charges of possession and distribution of cocaine. While he was in jail, he was
approached by Sgt. Snow and the District Attorney's office. He testified that
they "reminded him about the shooting at Jefferson Place" and asked him if he
remembered being there and seeing what happened. He testified that he told
them his version of events and insisted that he was never promised anything in
exchange for his testimony. On cross-examination, he admitted that he never
made any attempt to contact anyone regarding the shooting and that he was
interviewed for the first time approximately one week before trial. He also
testified that he was offering testimony at the trial because he "wanted to get
out" and he "didn't want to go down." The trial judge found that there was no
deal in place and ruled that the jury would not be permitted to know that
Hudson was in jail or that he had pending criminal charges.
The Grand Jury
Before the grand jury, Sgt. Snow testified that she interviewed Moses
during the course of the investigation. Sgt. Snow testified that Moses told her
that Hudson and Petitioner beat and robbed Palmer before shooting him. As a
result of this evidence, Sgt. Snow testified that "we'll be getting a warrant for
him [Hudson] shortly." In response to further questioning regarding Hudson's
8

proposed charge, she testified "First degree murder since he was with the
subject. They robbed him and shot him. [Hudson] did the robbing. It was a
cooperative effort on both of them." Of particular interest to this Court, is the
fact that there is no evidence that Sgt. Snow or anyone associated with this case
found or spoke to Hudson anytime before he was "reminded about the shooting
at Jefferson Place" the week before trial. It seems incredible, at least to this
Court, that when he was questioned regarding the Palmer murder, Hudson was
not advised of his potential criminal culpability in the very matter in which he
would be called to testify. Indeed, before visiting with Hudson to secure his
testimony, Sgt. Snow anticipated charging him with first degree murder.10
Sgt. Snow's grand jury testimony deviates from her trial testimony in
another area. At trial, Sgt. Snow testified that she showed a lineup (which
included Petitioner) to Temple but that Temple was unable to make a positive
identification. Before the grand jury, however, Sgt. Snow testified that Temple
was able to identify Petitioner as being present at the scene.
Temple provided conflicting testimony to the grand jury. Temple testified
she actually saw the shooting, that she could identify the Petitioner as the man
who shot Palmer, that she saw Petitioner holding a gun to Palmer's head, and
that she had identified Petitioner in a lineup. Given the gross disparities
between Temple's grand jury and trial testimony, it is simply impossible that she
was telling the truth on both occasions.
Compelling Necessity for Disclosure
10

Both the grand jury testimony and Moses's testimony at trial would appear to support
such a charge.

9

The Court cannot, however, disclose the grand jury testimony merely
because its content makes the Court uncomfortable. Instead, the Court must
find that there is a "compelling necessity" for the disclosure.11 In the instant
case, the Court finds that the new evidence contained in the transcript reveals
new habeas claims with potential merit.
The disclosed testimony reveals that Sgt. Snow and Temple gave grand
jury testimony that was not consistent with their trial statements. Additionally,
it raises significant questions regarding whether Hudson was testifying in
exchange for not being charged for his part in the murder. There can be no
doubt that the State was obligated to disclose this impeachment evidence to
Petitioner at trial.
In Napue, the Supreme Court held that the government may not
constitutionally use false testimony in order to secure a conviction, even if that
false testimony pertains only to the credibility of the witness.12 In Giglio, the
Court held that, if the state is in possession of the impeachment evidence, it is
obligated to disclose it, even if the trial attorney is not personally aware of it.13
In LaCaze v. Warden, Louisiana Correctional Institute for Women, the Fifth
Circuit explained that the state's responsibility to disclose impeachment
evidence related to its own witnesses is broad.14 The prosecution's disclosure
duty is particularly broad with regard to incentives given to its own witnesses
11

Higgins, 898 So. 2d at 1241.

12

Napue, 360 U.S. at 269–70.

13

Giglio, 405 U.S. at 154.

14

645 F.3d 728, 735 (5th Cir. 2011).

10

in exchange for their testimony. Indeed, the prosecution is obligated to disclose
to a defendant any evidence that "the witness 'might have believed that [the
state] was in a position to implement ... any promise of consideration.'"15 A firm
promise of future benefit is not required.16
In light of these basic legal principles, it seems clear to this Court that the
grand jury testimony should have been disclosed to Petitioner at trial. However,
that alone does not entitle Petitioner to relief. In addition to proving that the
State's failure to disclose the grand jury transcript violated his constitutional
rights, Petitioner must show that the withheld evidence was material.17
Evidence is material if it "could reasonably be taken to put the whole case in
such a different light as to undermine confidence in the verdict."18 In assessing
the materiality of withheld evidence, courts must consider the cumulative effect
of all withheld evidence.19

It appears to this Court that further factual

development is required in order to answer this question. For example, Hudson
and Sgt. Snow will likely need to testify regarding the nature of their pre-trial
conversations. Additionally, the closing arguments from Petitioner's trial will
probably need to be transcribed as courts faced with this issue often look to the
degree to which the prosecution vouched for the witness in closing arguments.20
Nonetheless, there is a compelling argument that the withheld testimony is
15

Id. at 735 (alterations in original) (quoting Napue, 360 U.S. at 270.).

16

Tassin v. Cain, 517 F.3d 770, 778 (5th Cir. 2008).

17

LaCaze, 645 F.3d at 736.

18

Id.

19

Kyles v. Whitley, 514 U.S. 419, 436–37 (1995).

20

See, e.g., Giglio, 405 U.S. at 152; Tassin, 517 F. 3d at 779.

11

material. The grand jury testimony, together with Moses's pre-trial statement,
raises significant credibility concerns regarding all three of the State's witnesses
who were present at the murder as well as its lead investigator. Accordingly, in
this Court's view, the new claims revealed by the grand jury testimony are
potentially meritorious.
In light of the constitutional concerns created by the content of the grand
jury transcript, the Court finds that there is a compelling necessity for
disclosure. Additionally, the Court finds that Petitioner would be prejudiced
without disclosure. Absent disclosure of the transcript, there is no conceivable
way that Petitioner could discover this potential constitutional error.
The Court will not, however, disclose the entire transcript.

As the

Louisiana Supreme Court has cautioned, "disclosure [of grand jury testimony]
must be closely confined to the limited portion of the material for which there is
particularized need."21 Therefore, the Court has redacted the transcript and will
disclose only the portions that are necessary to reveal the potential
constitutional infirmities.

Additionally, the Court discloses the redacted

transcript under seal and directs counsel for Petitioner to take appropriate steps
to ensure that the transcript is not disclosed except as necessary to present
Petitioner's claims to a Louisiana state court.
III. Procedural Issues
The Court's disclosure of the grand jury transcript creates a new
procedural issue. As a result of the Court's disclosure, Petitioner may be able to
21

Higgins, 898 So. 2d at 1241.

12

assert Napue22 and Giglio23 claims. However, given the current procedural
posture of this case, this Court is not able to review those claims.

"A

fundamental prerequisite to federal habeas relief under § 2254 is the exhaustion
of all claims in state court prior to requesting federal collateral relief."24 The
doctrine of exhaustion requires that Petitioner present his claims to the
Louisiana Supreme Court.25 Because Petitioner will discover his claims for the
first time when the Court enters this Order, he will necessarily not have
presented these claims to the Louisiana Supreme Court. However, if a state
procedural rule would prohibit Petitioner from presenting these new claims in
Louisiana state court, then the claims are "technically exhausted."26 Therefore,
the Court must consider whether there is a procedural rule preventing petitioner
from bringing these claims before a Louisiana state court.
There are two possible procedural obstacles that Petitioner faces upon
raising these new claims in state court. First, Louisiana Code of Criminal
Procedure article 930.8 provides that applications for post-conviction relief must
generally be filed within two years after the petitioner's conviction and sentence
become final on direct appeal. Article 930.8, however, provides an exception if
the facts underlying the claim were previously unknown to the petitioner and
the petitioner exercised diligence in pursuing his post-conviction claims. This
22

360 U.S. 264.

23

405 U.S. 150.

24

Whitehead v. Johnson, 157 F.3d 384, 387 (5th Cir. 1998).

25

Id.

26

Woodford v. Ngo, 548 U.S. 81, 93 (2006).

13

Court believes that Petitioner could not have known the facts underlying these
new claims prior to the entry of this Order. Furthermore, the evidence reviewed
by this Court demonstrates that Petitioner pursued this claim with diligence.
Petitioner requested a copy of the District Attorney's file in connection
with his first application for post-conviction relief. At that time, the District
Attorney represented that the file could not be located.

Despite this

representation, Petitioner renewed his request for the file on several occasions.
Most recently, Petitioner subpoenaed the file in connection with the instant
matter. At the evidentiary hearing, Mr. Boudreaux testified that his office had
finally located the file but declined to turn over portions of it, including the
grand jury transcript.
The State's argument that this claim should have been raised years ago
ignores the reality of its final disclosure. The Court cannot imagine how
Petitioner could have possibly raised a claim arising out of a document that the
State initially represented was lost and then refused to disclose. Accordingly,
this Court does not believe that article 930.8 would prevent Petitioner from
asserting any new claims arising out of the grand jury testimony.
The second possible procedural obstacle is found in article 930.4. Article
930.4 provides, in pertinent part, that Louisiana courts will not a consider postconviction application that either (1) alleges a claim that "petitioner had
knowledge [of] and inexcusably failed to raise in the proceedings leading to
conviction,"27 or (2) "raises a new or different claim that was inexcusably omitted
27

La. Code Crim. Proc. art. 930.4(B).

14

from a prior application."28

This Court believes that article 930.4 has no

application in this matter. As previously discussed, the Court believes that
there is no reasonable argument that Petitioner knew or should have known
about the content of the grand jury transcript before the issuance of this Order.
In light of the foregoing, this Court concludes that any new claims
revealed by the grand jury transcript are not technically exhausted.
Accordingly, this Court cannot consider the issues in this proceeding until the
new claims are properly exhausted in Louisiana state court.
In light of this reality, the Court must consider how best to proceed. If
Petitioner desires to amend his Petition to assert these new claims, the Court
would be faced with a "mixed petition" containing both exhausted and
unexhausted claims.29 In Rhines v. Weber, the Supreme Court held that a
district court should stay a habeas proceeding involving a mixed petition if "the
petitioner had good cause for his failure to exhaust, his unexhausted claims are
potentially meritorious, and there is no indication that the petitioner engaged
in intentionally dilatory litigation tactics."30

This Court has no difficulty

concluding that such circumstances are present in this case. The Court has
already explained that Petitioner has good cause for his failure to exhaust these
new claims and that the claims may have merit.

Additionally, there is

absolutely no evidence that Petitioner has intentionally sought to delay this
28

Id. art. 930.4(D).

29

See Rhines v. Weber, 544 U.S. 269, 271 (2005).

30

Id. at 278. Indeed, the Court stated that it would be an abuse of a district court's
discretion to deny a stay in such circumstances.

15

proceeding. Accordingly, this Court finds that a stay of this case is warranted.
This stay is not, however, without limits.

The Supreme Court has

instructed district courts to place reasonable time limits on a stay entered under
these circumstances.31 Accordingly, the Court orders Petitioner to pursue these
new claims in state court within 30 days of the entry of this order and return to
this Court no later than 30 days following the final conclusion of the state
proceedings.

31

Id. (quoting Zarvela v. Artuz, 254 F.3d 374, 381 (2d Cir. 2001) ("[District Courts]
should condition the stay on the petitioner's initiation of exhaustion within a limited period,
normally 30 days, and a return to the district court after exhaustion is completed, also within
a limited period, normally 30 days.")).

16

CONCLUSION
For

the

foregoing

reasons,

this

matter

is

STAYED

AND

ADMINISTRATIVELY CLOSED pending Petitioner's exhaustion of the new
claims presented by the grand jury transcript in state court. If Petitioner fails
to file a petition in Louisiana state court within 30 days of the entry of this
order, any party may move to lift of the stay.

Petitioner is FURTHER

ORDERED to move to lift the stay or dismiss this case (if the state court grants
his application) no later than 30 days following exhaustion of his state court
remedies.
New Orleans, Louisiana, this 13th day of January, 2015.

___________________________________
JANE TRICHE MILAZZO
UNITED STATES DISTRICT JUDGE

17