Isaac v. Cain et al
ORDER AND REASONS ADOPTING IN PART REPORT AND RECOMMENDATIONS 16 . ORDERED that petitioner's objections to the R & R are GRANTED. FURTHER ORDERED that the petn for habeas relief is GRANTED as set forth in document. Signed by Judge Helen G. Berrigan on 08/27/2013.(kac, )
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
SECTION: “C” (2)
ORDER & REASONS
Before the Court is a petition for habeas corpus under 28 U.S.C. § 2254 filed by Milton
Isaac. He asserts as grounds for relief that: (1) the State knowingly introduced perjured
testimony at trial; (2) the State withheld exculpatory material evidence from the defense and the
jury; and (3) he is innocent of the crime for which he stands convicted. Rec. Doc. 3 at 5-8. The
Magistrate Judge reviewed the petition and recommended that the Court dismiss it as successive,
and the petitioner has objected to the report. Rec. Docs. 16 & 17. The Court has independently
reviewed the petition, the record, the applicable law, the Magistrate Judge's Report and
Recommendation, and the petitioner's objections thereto. The Court adopts only the procedural
history and facts of petitioner's arrest and conviction, as well as the standard of review, from the
Magistrate Judge's Report and Recommendation as part of its opinion. For the reasons given
below, the Court sustains the petitioner’s objections and grants habeas relief.
Milton Isaac was convicted of possession of heroin with intent to distribute in 1986 and
sentenced to life in prison. Id. at 1 n.1.1 After his conviction was affirmed on direct appeal, Isaac
filed a petition for post-conviction relief in state court, asserting a Brady claim, an excessive
sentence claim, and an ineffective assistance of counsel claim. Id. at 16 at 2. The state trial court
denied the petition, and the Louisiana Court of Appeals for the Fourth Circuit affirmed. Id. at 3.
The Louisiana Supreme Court grants writs in part, however, and ordered an evidentiary hearing
on petitioner’s claim, under Brady, that the state failed to disclose potentially exculpatory
information from a police report. Id. The trial court conducted a hearing and denied relief, as did
the Louisiana Court of Appeals for the Fourth Circuit and the Louisiana Supreme Court. Id.
Isaac then filed a federal habeas petition seeking relief based on the Brady claim, and
specifically raising a Brady claim relative to the non-disclosure of potentially exculpatory
information in the police report. Id. This court denied the petition. Id; Milton Issac versus John
P. Whitley, Warden, Civil Action 93-2874 "L"(6) (E.D. La.).
Isaac again sought relief in state court in 2000 and 2007. Rec. Doc. 16 at 4. The first
time, relief was denied. Id. The second time, with the assistance of counsel, Isaac filed a motion
for a new trial based on newly discovered evidence: The two key witnesses at his trial had
recanted and sworn that the district attorney had pressured them into lying on the stand in order
to convict Isaac. Id.2 The court held two hearings on petitioner’s motion, which asserted as
grounds for relief the same grounds urged here. Id. at 4-5.3 After hearing and observing the
Although Isaac states that he has been released on parole, he is still in custody in violation of his Federal
Constitutional rights. He states that his parole is for life. Rec. Doc. 17 at 2. 28 U.S.C. §2254(a); Jones v. Cunningham,
371 U.S. 236, 83 S. Ct. 373, 9 L. Ed. 2d 285 (1963).
See State Rec. vol. 10 for a copy of the Motion for New Trial.
See State Rec. vol. 6 for Transcripts of Evidentiary Hearings held August 29, 2007 and March 26, 2008.
witnesses at the hearing, the trial court granted Isaac relief. Id. at 5. The state appealed the trial
court’s grant of relief to the Louisiana Fourth Circuit, and it reversed. Id.
Isaac then petitioned the United States Court of Appeals for the Fifth Circuit for
authorization to pursue a second or successive federal habeas petition. Id. at 6. See, In re Milton
Isaac, Docket #10-30981 (5th Cir. 11/22/10). The Fifth Circuit held that Isaac had made a prima
facie showing of actual innocence based on the newly discovered evidence introduced in the last
state court proceeding and granted him authorization. Rec. Doc. 3 at 18. This proceeding
II. SUCCESSIVE PETITION
The Anti-Terrorism and Effective Death Penalty Act of 1996 ("AEDPA") permits, in
relevant part, a state court prisoner to file a second or successive habeas petition only if “the
factual predicate for the claim could not have been discovered previously through the exercise of
due diligence” and “the facts underlying the claim, if proven and viewed in light of the evidence
as a whole, would be sufficient to establish by clear and convincing evidence that, but for
constitutional error, no reasonably factfinder would have found the applicant guilty of the
underlying offense.” 28 U.S.C. § 2244(b)(2)(B)(I)-(ii). After a Court of Appeals has granted a
petitioner leave to file a second or successive petition under § 2244(b)(3)(A), the district court
must decide these issues de novo. In re Johnson, 322 F.3d 881, 883 (5th Cir. 2003). Although
the Court agrees with the Fifth Circuit's finding that Isaac should be allowed to proceed based on
newly discovered evidence, including affidavits and testimony from Harris and Barbarino that
the state coerced them to testify falsely and knowingly elicited false testimony from them to
secure a conviction, it has conduct its own analysis de novo. Rec. Doc. 3 at 17-18.
1. Due Diligence
All three claims raised in the instant petition stem from new evidence that Isaac
discovered after he filed his first federal habeas petition in 1993.4 The new evidence that
petitioner contends entitles him to file a successive federal habeas petition consists of the
a) The November 28th, 2000 affidavit and the March 26, 2008 testimonial recantation
of Carolyn Harris: In her affidavit, Harris, Isaac’s former girlfriend who testified for the State at
trial, reported that she had initially told the prosecutor that Isaac had obtained money from
Terrell Sterling, a friend, so that Isaac might obtain drugs from Edgar Barbarino in order to
alleviate his own drug withdrawal symptoms. Rec. Doc. 3, Exh. 1.5 Harris stated that the
prosecutor, Glynn Alexander, coerced her into stating at trial, however, that the drugs obtained
by Isaac were purchased for him to distribute to Sterling because Sterling was experiencing drug
withdrawal. Id. Harris, therefore, indicated that her testimony at Isaac’s trial was false; that she
testified falsely because she was assured by the prosecutor that Isaac would only get ten years of
jail time; and that she was also assured she would be granted immunity from prosecution. Id. At
the evidentiary hearing in state court, Harris also claimed that the prosecutor had assisted her
with her expenses and housing at trial and helped her acquire Section 8 subsidized housing after
trial.6 Isaac argues that Harris’ false testimony was critical to establish his intent to distribute
The Court only considers Isaac's Brady and perjured testimony claims in its analysis. A freestanding actual
innocence claim as articulated in Isaac's third claim as a constitutional violation is not cognizable in federal habeas
review. Herrera v. Collins, 506 U.S. 390, 404, 113 S.Ct. 853, 862, 122 L.Ed.2d 203 (1993).
State Rec. vol. 1 for a copy of Ms. Harris' affidavit.
See State Rec. vol. 6 for Transcript of Evidentiary Hearings held August 29, 2007.
heroin. Rec. Doc. 3 at 35; Rec. Doc. 17 at 7.
b) The July 30, 2007 affidavit and the August 29, 2007 testimonial recantation of
Edgar Barabino: On July 30, 2007, Edgar Barabino signed an affidavit that claimed that
Isaac had tried to steal heroin from Barabino for his own addiction and not to give, sell or
otherwise distribute the drugs to anyone else. Rec. Doc. 3 at 87, Exh. 3. Barabino reported that
the Assistant District Attorney assigned to the case, Alexander, threatened to bring drug charges
against Barabino or members of his family if he refused to testify falsely at trial. Id. At a state
evidentiary hearing held on August 29, 2007, Barabino testified that, on the date of the crime,
Milton Isaac came to him and asked to buy some heroin from him that was supplied to Barabino
by a dealer both he and Milton had frequented in the past. Id. at 101. When Barabino refused to
sell the heroin to him, Isaac produced a gun and attempted to take the heroin from him. Id.
Barabino repeated, at the hearing, the claim that the State had coerced his “false testimony” at
trial by telling him that he and his family would be charged with possession with intent to
distribute heroin if he did not cooperate. Id. at 98. At trial, Barabino had testified, as a rebuttal
witness for the State, that Isaac had robbed him only of $61.00 and that he (Barabino) did not
have any drugs on him or in his house.7 This testimony, Isaac argues, suggested to the jury that
Isaac was a drug dealer and the drugs seized from Isaac were in his possession before his
altercation with Barabino. Rec. Doc. 3 at 23.
The State argues that petitioner knew of the factual predicate for his claim at the time
of trial, specifically when Barabino testified that petitioner only took money and not drugs
from him and when Harris testified that petitioner was obtaining the drugs for distribution
See State Rec. vol. 9 for Trial Transcript dated June 17, 1986 at 138-42 (testimony of Barabino).
to Terrell Sterling rather than for his own usage. Id. at 29-30. If petitioner knew this testimony
was incorrect, the State asserts, he knew it at the time the lies or false testimony was offered at
trial and the factual basis of his claims was thus "available” when he filed his first federal
habeas in 1993. Rec. Doc. 11 at 6. The State claims that Isaac "could" have discovered that
Barabino perjured himself. Id.
Isaac counters that the State misunderstands his claim. Rec. Doc. 17 at 11. He asserts
that his claim is not that the witnesses lied. Instead, it is that the “new evidence” shows that the
State knowingly introduced false testimony and coerced such testimony. He asserts that he could
not have known of the State’s misconduct until the witnesses were willing to come forward with
such information. Id. 7.
Although Isaac certainly would know that witnesses were giving false testimony at
his trial, the motives behind such testimony would be concealed. The State’s argument
ignores the distinction between a witness’s own false testimony (which would be subject to
cross-examination at trial) and the alleged misconduct on the part of the State that suborned
such false testimony (conduct which was unchallengeable at trial).
The factual predicate for petitioner’s claims of perjured testimony and the suppression of
exculpatory evidence is not petitioner’s belief that a witness was lying but rather that the lying
was being done at the behest of the State. Until the witnesses came forward (through affidavits
or recantation testimony) with information about the State’s misconduct, Isaac could not have
known the factual basis of his claims. Thus the burden to be imposed on petitioner is to show
that, at the time he filed his federal habeas petition in 1993, he could not have obtained the
recantation evidence from Carolyn Harris or Edgar Barabino which he now presents to this court
as the factual predicate of his Brady and/or perjured testimony claim, or any other evidence to
establish the State’s alleged misconduct. Barabino informed petitioner's mother that he had been
suborned into perjury sometime before Hurricane Katrina struck New Orleans. Rec. Doc. 3 at 23.
It is not clear from the record that petitioner knew about Barabino's revelation to his mother.
What is clear is that Barabino decided to speak with petitioner's lawyer about the new evidence
in 2007 and that he signed a sworn affidavit attesting that the State had educed him to lie on July
30, 2007. Id. at 24. This is after the petitioner's earlier habeas proceeding in 1993.
As to Carolyn Harris, the record is clear that her affidavit was first obtained on
November 28th, 2000. Rec. Doc. 3 at 25. This is also after petitioner's earlier habeas petition
was filed. In her affidavit executed in 2000, Harris mentioned that she was given immunity in
return for her “false” trial testimony and had also been assured by the state’s prosecutor that
Isaac would only be given a ten year sentence, if he was convicted. Rec. Doc. 3, Exh. 1 at 40.
When she was allowed by the trial court to testify on March 26, 2008, she reported that it was
her daughter’s questions about what had happened to her father (Isaac) and her own guilt about
lying that made her come forward.8
This Court disagrees with the Magistrate Judge's Report and Recommendation that Isaac
met the due diligence standard of §2244(b)(2)(B) only as to his claim regarding Carolyn Harris.
Rec. Doc. 16 at 20. Petitioner has shown that regardless of his previous Brady claim, he could
not have previously discovered the prosecutorial misconduct that he alleges regarding Barabino
or Harris through the exercise of due diligence before his previous habeas petition. Additionally,
petitioner has established "actual innocence" by showing that but for the Constitutional error, he
See State Rec. vol. 6 for Transcripts of Evidentiary Hearings held August 29, 2007 at 25.
would not have been found guilty.
2. Facts Underlying the Claims
The Court, next, evaluates whether the other evidence offered to the jury supports a
finding of Isaac's intent to distribute heroin. Sawyer v. Whitley, 505 U.S. 333, 347, 112 S.Ct.
2514, 2523, 120 L.Ed.2d 269 (1992). At trial, the State submitted evidence and called three
witnesses in addition to Harris and Barabino. Arresting officer Michael Conn testified "and Mr.
Isaac was wearing a flap jacket."9 He explained that a flap jacket was "used in the military for
shrapnel."10 He also stated that he removed $81 from Mr. Isaac's person and 20 individual
packets.11 Later, under cross-examination, he testified that Isaac had 21 packets of heroin. Conn
also testified that there was a gun that Mr. Barabino (not Mr. Isaac) had at the time of the
incident.12 He testified about additional inserts for the jacket and weapons that were found in
Isaac's car.13 Conn also testified that in addition to arresting Mr. Isaac, he arrested Mr. Barabino,
who had Isaac pinned on the ground and was holding a gun in Mr. Isaac's mouth when Conn
arrived on the scene, for assault rather than attempted murder.14 Conn also testified that he never
saw Isaac chemically manufacture, dispense or distribute heroin.15 Additionally, Conn never saw
See State Rec. vol. 9 for Trial Transcript dated June 17, 1986 at 7 (testimony of Conn).
Id. at 8.
Id. at 9.
Id. at 12.
Id. at 19.
Id. at 22.
Isaac take money and drugs from an individual.16 Conn admitted that he never found out
whether the heroin in Isaac's possession at the time of his arrest came from Mr. Barabino.17 The
testimony goes to the petitioner's own heroin use, and without further support does not appear to
prove petitioner intended to distribute heroin.
Officer Edgar Dunn testified on behalf of the State.18 He worked in the Crime Laboratory
for the New Orleans Police Department.19 He testified that he received 20 packets in evidence
and tested four which he found positive for heroin.20
Sergeant Frank Ben also testified as an expert. He testified that "[heroin is] normally
packaged in lots of 25, which is called a bundle."21 He further testified that one dosage unit is
one pack and that the price of a pack in 1985 would be "roughly $20 to $25."22 Ben also
testified that a "normal" heroin user will use two to three bags per time he shoots heroin, and that
"a person will shott [stet] heroin as many times as he can afford to go to the cooker during the
course of a day."23 As much as Ben's testimony may have helped the State to point out that
heroin dealers would have had several packets in a "bundle," it also hurt the government. Based
on Ben's calculation, it is likely that Isaac would have had more than $81 if he were selling
Id. at 23.
Id. at 26.
Id. at 31 (testimony of Dunn).
Id. at 33-34.
Id. at 73 (testimony of Ben).
Id. at 74.
Id. at 80.
heroin at the price to which Ben testified.
The Court finds that petitioner overcomes AEDPA's bar on successive applications and
deserves to argue the merits of his claim because he has established by clear and convincing
evidence that but for the State's knowing presentation of false testimony, no reasonable jury
would have found him guilty of possession of heroin with intent to distribute. Johnson v. Dretke,
442 F.3d 901, 911 (5th Cir. 2006) (relying on Sawyer v. Whitley, 505 U.S. at 333, for the "'strict
form of 'innocence'" standard); Kinsel v. Cain, 647 F.3d 265, 269 (5th Cir. 2011) (stating the
standard in a case where petitioner alleges constitutional error based on new evidence that the
prosecutor knowingly presented false testimony is that absent the constitutional error, no
reasonable factfinder would have found petitioner guilty of the underlying offense).
III. VIOLATION OF A CONSTITUTIONAL RIGHT
Isaac's claim that the government elicited perjured testimony and suppressed evidence are
both claims based on violations of his fundamental Constitutional rights. As petitioner has
argued, a conviction obtained by the use of known perjured testimony cannot stand. Mooney v.
Holohan, 294 U.S. 103, 115, 55 S.Ct. 340, 343, 79 L.Ed. 791 (1935). A prosecutor may not
knowingly use false evidence, or allow false evidence to go uncorrected. Naupe v. Illinois, 360
U.S. 264, 269, 79 S.Ct. 1173, 1177, 3 L.Ed.2d 1217 (1959). Additionally, the State violates due
process when it withholds exculpatory evidence from the defense. Brady v. Maryland, 373 U.S.
83, 88, 83 S.Ct. 1194, 1197, 10 L.Ed.2d 215 (1963). The facts recounted above make clear that
the State concealed perjured testimony from the petitioner and withheld exculpatory evidence.
The judge that conducted evidentiary hearings on this matter in State court, Judge
Camille Buras, found Barabino and Harris' testimony to be credible and granted a new trial on
May 30, 2008.24 A state court's findings are given the presumption of correctness. Kinsel, 647
F.3d at 270. The Louisiana Fourth Circuit Court of Appeals, which overturned the hearing
court's findings, was not the finder of fact, and in this highly factual instance, this Court defers to
Judge Buras' findings. See Pippin v. Dretke, 434 F.3d 782, 792 (5th Cir. 2005) ("A trial court's
credibility determinations made on the basis of conflicting evidence are entitled to a strong
presumption of correctness and are 'virtually unreviewable' by the federal courts.")
Harris and Barabino were induced to falsely testify. Furthermore, the prosecutor let
perjured testimony stand in violation of the Mooney/Naupe line of cases. Additionally, when the
prosecution suppresses evidence, it violates due process if the evidence is material to either guilt
or punishment. Brady, 373 U.S. at 87. The duty to disclose applies even in the absence of a
request from the defendant. Strickler v. Green, 527 U.S. 263, 280, 119 S.Ct. 1936, 1947, 144
L.Ed.2d 286 (1999). Evidence is "material" where there is a reasonable probability that, had the
evidence been disclosed at trial, the result of the proceeding would have been more favorable to
the accused. United States v. Bagley, 473 U.S. 667, 684, 105 S.Ct. 3375, 3384, 87 L.Ed.2d 481
(1985). The reversal of a conviction is required when "the favorable evidence could reasonably
be taken to put the whole case in such a different light as to undermine confidence in the
verdict." Kyles v. Whitley, 514 U.S. 419, 435, 115 S.Ct. 1555, 1566, 131 L.Ed.2d 490 (1995). To
prevail on a Brady claim, a habeas petitioner must show that the evidence was: (1) favorable, (2)
material, and (3) withheld by the prosecution. Drew v. Collins, 964 F.2d 411, 419 (5th Cir.
The evidence at issue here was material to Isaac's guilt. The Court defers to the opinion
Transcript Hearing May 30, 2008 at 15-16.
of the trial court in finding validity in both the Mooney/Naupe and the Brady claims. The trial
court entertained "many hearings on this case, [and] many filings by both sides."25 Judge Buras
ruled: "The [State] Court grants post-conviction relief in this matter. Finding that, not just the
testimony that was educed at trial, but the omissions in the testimony of the witness at trial . . . .
[had] [t]he cumulative effect of those omissions in the testimony relative to all the facts
surrounding the issues of what happened that day in Edgar Barrimino's [stet] apartment were not
made known to the jury."26
Furthermore, the judge ruled:
"That had the jury heard the full testimony of what this Court believes to be valid and
credible testimony on post-conviction evidentiary hearing from Edgar Barrimino [stet] and
Carolyn Harris, that had the Court heard that testimony, the verdict in this case would have been
"And, therefore, again, the Court grants post-conviction relief in this matter ordering that
a new trial be granted based upon what the Court feels was an improper verdict in the matter."27
Petitioner has shown that favorable, material evidence was knowingly withheld by the
prosecution. That evidence included that the prosecution suborned perjury from two witnesses.
The affidavits from Harris and Barabino both state that the State induced them to submit perjured
testimony. Moreover, each witness stated that at trial, and Judge Buras found their testimony to
Id. at 15.
Id. at 16.
be credible.28 The Court agrees with the petitioner that by knowingly introducing perjured
testimony at trial and withholding exculpatory material evidence from the defense and jury,
petitioner's Constitutional rights were violated. Mooney, 294 U.S. at 115; Brady, 373 U.S. at 88.
IT IS ORDERED that the petitioner's objections to the Report and Recommendation of
the Magistrate Judge are GRANTED.
IT IS FURTHER ORDERED that the Report and Recommendation of the Magistrate
Judge is adopted by the undersigned only as to the sections on "PROCEDURAL HISTORY" and
"FACTS ESTABLISHED AT TRIAL." Rec. Docs. 16 & 17.
IT IS FURTHER ORDERED that the petition for habeas relief is GRANTED and
judgment is to be entered in favor of the petitioner and against the State. Rec. Doc. 3.
IT IS FURTHER ORDERED that the State shall either retry the petitioner within 180
days of this order or dismiss the charges. The state shall notify the petitioner and the Court of its
intention within 60 days of this ruling.
New Orleans, Louisiana this 27th day of August, 2013.
HELEN G. BERRIGAN
UNITED STATES DISTRICT JUDGE
Id. at 16.
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