Johnson v. Cooper et al
ORDER & REASONS: the Court, after reviewing the Petitioner Antoine Johnson's request for issuance of a writ of habeas corpus under 28 U.S.C. 2254, the magistrate judge's Report and Recommendation, the objections, the record, and the applica ble law, the Court will adopt the magistrate judge's recommendation and dismiss this action with prejudice; accordingly, for the reasons stated, IT IS HEREBY ORDERED that the Court ADOPTS the Magistrate Judge's recommendation and Petitioner Johnson's petition is DISMISSED WITH PREJUDICE. Signed by Judge Nannette Jolivette Brown on 8/27/2013.(rll, )
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
WARDEN LYNN COOPER
SECTION “G” (6)
ORDER AND REASONS
Before the Court is Petitioner Antoine Johnson's request for an issuance of a writ of habeas
corpus under 28 U.S.C. § 2254.1 This matter came before the magistrate judge pursuant to 28 U.S.C.
§ 636(b)(1)(B) from which the magistrate judge issued a report and recommendation on November 2,
2011.2 The magistrate judge found no merit in Petitioner’s claims and recommended that the matter
be dismissed with prejudice.3 On December 7, 2011 petitioner filed timely objections to the
magistrate's report and recommendation where he reasserts and details arguments from the writ
application.4 Petitioner requests a full evidentiary hearing regarding the application for a writ of habeas
corpus.5 After reviewing the petition, the magistrate judge's Report and Recommendation, the
objections, the record, and the applicable law, the Court will adopt the magistrate judge's
recommendation and dismiss this action with prejudice.
Rec. Doc. 3
Rec. Doc. 1 at p. 2.
Rec. Doc. 14 at 2.
Id. at 7.
A. Factual Background
On July 26, 2003 three men fired upon Sam Davis and Michael Martin with “long-barreled
assault weapons” at a carwash.6 The victims did not know the suspects or the reason for the shooting.7
The New Orleans Police Department (“NOPD”) discovered a firearm near the carwash and traced it
to Paul Pierce, who identified two of the suspects from the surveillance video. Mr. Pierce identified
Kendal Washington and Elton Hooks, but was not able to identify the third perpetrator.8
During the investigation, the United States Attorney’s Office met with James Aldridge, who
was in federal custody on drug and weapon charges.9 Mr. Aldridge testified that he knew the suspects
and saw them daily up until his arrest.10 Mr. Aldridge identified all three suspects in the video
including the third, Petitioner Johnson.11 Subsequently, NOPD arrested Hooks, Washington and
Johnson.12 Hooks admitted his participation in the shooting and implicated Washington as well.13
At trial, Mr. Aldridge invoked his Fifth Amendment right against self-incrimination and did
Rec. Doc. 11 at 4.
Id. at 7.
Id. at 8.
not testify.14 Therefore the trial court declared him "unavailable."15 Mr. Aldridge did however
provide testimony at a pre-trial hearing and was available to Petitioner’s attorney for crossexamination at that time.16 A law clerk read the transcript from this testimony into the record at
trial.17 In addition to identifying Washington, Hooks, and Petitioner, Mr. Aldridge testified that he
was a close friend of Petitioner, that Petitioner informed him of a plan to kill members of a gang
responsible for the death of LaDevin Pierce, and that later Petitioner told him that he participated
in the carwash shooting in which he shot the wrong people.18 Mr. Aldridge also identified Petitioner
in the surveillance footage by his clothing, which Mr. Aldridge claimed he had purchased for
Petitioner.19 Mr. Aldridge pled guilty before meeting with any government agent, and prior to his
testimony at the pretrial hearing about the carwash shooting, but he acknowledged that he was
testifying in hopes that his cooperation would lessen his sentence.20
On November 28, 2007, the jury found Petitioner guilty of two counts of attempted seconddegree murder, under La. R.S. 14:30.1, and the trial court sentenced Petitioner to twenty years, with
credit for time served.21 After a series of appeals, on February 10, 2010, the Louisiana Fourth Circuit
Id. at 9.
Rec. Doc. 14 at 4.
Rec. Doc. 11 at 9.
Id. at 10.
Id. at 9-10.
Id. at 3
Court of Appeal affirmed Petitioner’s convictions and sentences.22 The Louisiana Supreme Court also
denied Petitioner’s writ application. Subsequently, Petitioner filed this habeas corpus petition in this
B. Report and Recommendation Findings
In review of this habeas corpus petition, the magistrate judge applied the 28 U.S.C. §
2254(d)(1) revised standards of review for questions of law and mixed questions of law and fact,
which require federal courts to defer to the state court’s decision unless it was “an unreasonable
application of, clearly established Federal law, as determined by the Supreme Court.”23 Using this
standard, the magistrate judge assessed Petitioner’s claims that: 1) the evidence was insufficient to
support his conviction; 2) he was denied his right to confront and cross-examine his accuser, James
Aldridge at trial; 3) the jury was guilty of misconduct by virtue of their viewing, during deliberations,
enhanced footage of the surveillance videotape of the shooting; and, 4) he was denied full appellate
review because the voir dire transcript he received did not include bench conferences.24
The magistrate judge found that Petitioner’s contention that there was insufficient evidence to
support his conviction was without merit.25 Petitioner based this claim on the fact that there were no
eye-witnesses to the shooting and the case relied upon the testimony of Mr. Aldridge, a convicted
felon. After a review of the findings of the Louisiana Fourth Circuit Court of Appeal, including the
Id. at 19.
Id. at 13.
facts alleged in Mr. Aldridge’s testimony, the magistrate judge concluded that there was no
unreasonable application of law, and therefore Petitioner's Sixth Amendment rights were not violated.
The magistrate judge also rejected Petitioner’s claim that he was denied his Sixth Amendment
right to confront and cross-examine his accuser when the trial court declared Mr. Aldridge unavailable
for trial, but permitted his prior testimony at the pretrial hearing to be read into the record.26 Relying
on Supreme Court precedent, the magistrate judge found that admission of testimony from absent
witnessess does not violate the Sixth Amendment when: 1) the witness is unavailable; and 2) the
defendant has had prior opportunity to cross-examine the witness.27 Applying that standard, the
magistrate judge found that the invocation of the Fifth Amendment makes a witness unavailable28 and
that the Petitioner had an opportunity to cross-examine Aldridge during the pre-trial hearing
Regarding Petitioner’s allegation that his conviction was tainted by jury misconduct because
of their use of “extrinsic evidence,” the magistrate judge examined the testimony that the Louisiana
Fourth Circuit Court of Appeal used to determine that there was no jury misconduct.30 Specifically,
the magistrate judge examined the record, including testimony of Deputy Patricia Bruno and Deputy
Sheriff Donald Marshall, which supported the conclusion that although the jurors did view footage on
Id. at 17 (citing Crawford v. Washington, 541 U.S. 36, 59 (2004)).
Id. (citing Jackson v. Mississippi Dept. Of Corrections, 359 F. App’x 499, 502 (5th Cir.
Id. (citing State v. Johnson, 2008-1488 (La. App. 4 Cir. 2/10/10); 33 So.3d 328).
Id. at 19.
a juror’s laptop, the deputies were not aware of any enhancement software that enabled jurors to view
anything more than what was introduced in court.31 Further, the defense counsel was aware that the
jury was going to view the videotape on a juror’s laptop computer and did not file an objection, but
made a motion for a new trial after the verdict.32 Given that testimony, the magistrate judge did not find
that the state appellate court unreasonably applied Supreme Court precedent governing extrinsic
influence, and found no merit in Petitioner’s claim.33
Finally, the magistrate judge rejected Petitioner’s argument that his conviction should be
reversed according to Louisiana law, because he was not provided a transcript of the voir dire
proceedings that included bench conferences.34 The magistrate judge cited Supreme Court precedent
which holds that habeas corpus relief must be based in federal, not state law.35 Further, the magistrate
concluded that the State is only required to supply a complete transcript when it is alleged that a
specific error may be uncovered through its production, and is not required to provide transcripts for
defendants conducting “fishing expeditions” to seek out possible errors at trial.36 Because Petitioner
did not allege a particular constitutional error that could be uncovered in the transcript, the magistrate
Id. (determining that jurors paused video which was properly admitted into the record)
Id. at 20 (citing Tanner v. United States, 483 U.S. 107, 120 (1987) (“The Supreme Court
has determined that an evidentiary hearing is warranted when ‘extrinsic influence’ or relationships
have tainted [jury] deliberations”); Garcia v. Andrews, 488 F.3d 370, 375 (6th Cir. 2007)) .
Id. (citing Wilson v. Corcoran, 131 S.Ct. 13, 16 (2010); Jernigan v. Collins, 980 F.2d
292, 298 (5th Cir. 1992); Castillo v. Johnson, 141 F.3d 218, 222 and 224 (5th Cir. 1998)).
Id. (citing Kunkle v. Dretke, 352 F.3d 980, 985-86 (5th Cir. 2003)).
judge found no reason to grant the application on this claim.37
Petitioner objects to each of the findings of the magistrate judge regarding Petitioner's claims
that he is entitled to relief due to alleged constitutional violations that led to his attempted murder
conviction, and he requests a full evidentiary hearing on the petition.38 Petitioner elaborates on facts
and law that he claims support his contentions that: 1) the conviction is based on insufficient evidence;
2) he was denied the opportunity to confront his accuser; 3) there was juror misconduct, and 4) he was
deprived of his right to a complete voir dire transcript of the proceedings.39 In consideration of these
arguments Petitioner asks that the complaint not be dismissed.
Regarding his claim that there was insufficient evidence for conviction, Petitioner characterizes
the viewing of the surveillance footage on a juror’s laptop as extrinsic evidence and argues that the
testimony of Mr. Aldridge was hearsay. Petitioner asserts that when the trial court allowed the jury to
view video evidence on a juror’s laptop, the laptop revealed images that were not presented at trial.
Petitioner argues that, without the inclusion of what he calls extrinsic evidence and the alleged hearsay
testimony of Mr. Aldridge, there would be no evidence upon which the jury could have reached a
Id. at 22 (“The fact that the Petitioner believes that he may have uncovered a
constitutional error if he had been provided with a transcript of the bench conferences is clearly
insufficient for the purpose of attaining federal habeas corpus relief.”)
Rec. Doc. 14 at 7.
Id. at 2.
Id. at 4.
Regarding his claim that he was denied his Sixth Amendment right to confront Mr. Aldridge,
Petitioner argues that the Louisiana Fourth Circuit Court of Appeal erred in allowing Aldridge to assert
Fifth Amendment protections and testify at a pretrial hearing instead of ordering him to testify at trial.41
Petitioner cites Louisiana Supreme Court precedent that he claims suggests that a witnesses may only
invoke the Fifth Amendment if “injurious disclosure would result,” and that even then the court should
limit a person's exercise of this right in response to specific questions 42
Petitioner disputes the magistrate judge’s finding that there is no evidence that the jury viewed
the enhanced or altered images from the video with video enhancing software.43 Petitioner points to
the testimony of Deputy Patricia Bruno, who testified that she was told by jurors that they used the
laptop to “enhance images of the disk” enabling them to see images in a way that the State did not
present them at trial.44 Petitioner also highlights that Bruno told the Assistant District Attorney that
jurors had changed their vote in favor of guilty after viewing the disc on the juror’s laptop and that
when defense counsel learned about the juror misconduct he filed a motion for a new trial.45
Finally, on Petitioner's claim that he was afforded incomplete appellate review, Petitioner
argues that the missing bench conference transcripts are the only way to prove whether the trial court
ruled correctly on the challenges.46 Petitioner cites Louisiana Supreme Court precedent where the court
Id. at 5 (citing State v. Wilson, 394 So. 2d 254 (La. 1981)).
Id. at 6.
Id. at 7
overturned a conviction due to missing bench conferences.47 Based on these allegations of errors and
constitutional deprivation, Petitioner requests a full evidentiary-hearing on the propriety of his
III. Standard of Review
The Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”) comprehensively
overhauled federal habeas corpus legislation, including 28 U.S.C. § 2254. Amended subsections
2254(d)(1) and (2) contain revised standards of review for questions of fact, questions of law, and
mixed questions of law and fact. Provided that the state court adjudicated the claim on the merits, pure
questions of law and mixed questions of law and fact are reviewed under § 2254(d)(1) and questions
of fact are reviewed under § 2254(d)(2).48
As to questions of law and mixed questions of law and fact, a federal court must defer to the
state court’s decision unless it “was contrary to, or involved an unreasonable application of clearly
established federal law, as determined by the Supreme Court.”49 The Supreme Court has made a
distinction between the application of the “contrary to” and “unreasonable application” clauses, stating
that a federal habeas court may issue the writ under the “contrary to” clause if the state court applies
a rule in a way that is inconsistent with governing law and Supreme Court precedent on identical facts
and it may issue the writ under the “unreasonable application” clause if the state court unreasonably
Id. (citing State v. Pinion, 06-2346, p. 8 (La. 10/26/07); 968 So. 2d 131, 135).
Hill v. Johnson, 210 F.3d 481, 485 (5th Cir. 2000).
28 U.S.C. § 2254(d)(1).
applies the governing law to the facts of the case.50 Further, the Supreme Court has noted that, “The
focus of the latter inquiry is on whether the state court's application of clearly established federal law
is objectively unreasonable and we stressed in Williams that an unreasonable application is different
from an incorrect one.”51
As to questions of fact, factual findings are presumed to be correct and a federal court will give
deference to the state court’s decision unless it “was based on an unreasonable determination of the
facts in light of the evidence presented in the state court proceeding.”52
A. Insufficient Evidence
Petitioner objects to the finding that there was sufficient evidence to support his conviction by
reasserting his claims that the jury used extrinsic evidence and that the testimony from Mr. Aldridge
The standard for an insufficiency of evidence claim is “whether after viewing the evidence in
the light most favorable to the prosecution, any rational trier of fact could have found the essential
elements of the crime beyond a reasonable doubt.”53 Under this standard, the trier of fact may resolve
conflicts in the testimony, weigh evidence, and draw reasonable inferences.54 Further, “all credibility
See Bell v. Cone, 535 U.S. 685, 694 (2002) (citing Williams v. Taylor, 529 U.S. 362,
28 U.S.C. § 2254(d)(2); see also Hill, 210 F.3d at 485.
See Jackson v. Virginia, 443 U.S. 307, 319 (1979).
choices and conflicting inferences are to be resolved in favor of the verdict.”55
The trial jury and the Louisiana Fourth Circuit Court of Appeal, in reviewing the evidence,
considered the testimony of Mr. Aldridge. The magistrate reviewed the record (including the testimony
of Mr. Aldridge that he and Petitioner spoke on a daily basis and that Petitioner told him of his intent
to kill the person he believed was responsible for Mr. Pierce’s death before the shooting) and made
the determination that the evidence was sufficient for a rational trier of fact to reach a conviction.
Petitioner’s objection does not offer any new evidence to challenge that determination. Rather,
Petitioner pivots to a new allegation that the jury was tainted by extrinsic evidence from viewing
surveillance footage that was admitted at trial on a juror’s laptop. The Fifth Circuit has stated that
claims brought up in an objection that a petitioner did not raise until after the magistrate court issued
findings and recommendations are not to be considered and are waived.56 Petitioner did not raise this
issue in the petition and raises it for the first time in the objection to the magistrates findings. Thus,
Petitioner is not entitled to review on this claim, but only the claims addressed in his petition.
Petitioner’s other allegations regarding the jury’s viewing of surveillance footage are addressed below.
B. Right to Confront Witnesses
Petitioner objects to the magistrate judge’s finding that he had an opportunity to confront his
accuser because the witness, Mr. Aldridge, although, he was unavailable for trial, was cross-examined
Ramirez v. Dretke, 398 F.3d 691, 695 (5th Cir. 2005) ("A determination of a factual issue
made by a State court shall be presumed correct,” and the Petitioner “shall have the burden of
rebutting the presumption of correctness by clear and convincing evidence”).
See Cupit v. Whitley, 28 F.3d 532, 535 (5th Cir. 1994) (rejecting arguments submitted
after the magistrate report was issued); Long v. McCotter, 792 F.2d 1338, 1345 (5th Cir. 1986)
(“we ordinarily do not consider issues that have not been presented to the court of first instance”).
by attorneys for Petitioner at the pretrial hearing. Petitioner alleges that the Louisiana court of appeal
upheld his conviction based on inadmissible hearsay testimony from Mr. Aldridge, who should have
been forced to testify at trial instead of simply allowing his pretrial testimony to be read into the
Petitioner relies upon Louisiana Supreme Court precedent to support his claim that Mr.
Aldridge should not have been declared unavailable and should have been forced to testify at trial on
a question by question basis. However, it is well established that federal habeas review is limited to
questions of a constitutional dimension and is grounded in federal law as interpreted by the United
States Supreme Court.57
In Crawford v. Washington, the Supreme Court recognized its long standing precedent that
"[t]estimonial statements of witnesses absent from trial have been admitted only where the declarant
is unavailable, and only where the defendant has had a prior opportunity to cross-examine."58 The
Supreme Court has noted that the Fifth Amendment protects a witnesses in any proceeding where
answers might incriminate him in future criminal proceedings regardless of the nature of that
proceeding or the witness’s role in it.59 In addition, the Supreme Court has stated that the privilege
See Wilson v. Corcoran, 131 S.Ct. 13, 16 (2010) (“But it is only noncompliance
with federal law that renders a State's criminal judgment susceptible to collateral attack in
the federal courts”); see also Williams, 529 U.S. at 402-03.
541 U.S. at 59.
See Lefkowitz v. Turley, 414 U.S. 70, 77 (1973) (“the privilege is not ordinarily
dependent upon the nature of the proceeding in which the testimony is sought or is to be used.”
(quoting McCarthy v. Arndstein, 266 U.S. 34 (1924))).
protects the witness as fully as it does the accused.60 Granting the privilege is at the discretion of the
Also, the Supreme Court has clarified that the hearsay rule does not apply where the witness
is unavailable due to his invocation of the Fifth Amendment privilege, as long as the witness gave
testimony at a hearing in which there was an opportunity for cross-examination.62 In fact, the Fifth
Circuit has recently acknowledged that a trial court did not err in allowing an alibi witness to invoke
the Fifth Amendment at trial, and therein used her prior sworn statement to be admitted into evidence.63
Here, Mr. Aldridge was awaiting sentencing for federal gun and weapons charges, and
testified that he was subject to other charges when he invoked Fifth Amendment protections at trial,
and was therefore declared unavailable by the trial court.64 In the pretrial motion hearing, Mr. Aldridge
stated that he was in daily contact with gang members and dealt drugs for a living and that he was
aware of Petitioner’s intent to kill before the carwash shooting.65 Under cross-examination, Robert
Jenkins, Petitioner's defense attorney, suggested to Mr. Aldridge that his responses may subject him
See Hoffman v. United States, 341 U.S. 479, 486 (1951) (“to sustain the privilege, it need
only be evident from the implications of the question, in the setting in which it is asked”); Jackson,
359 Fed. Appx. at 501.
See United States v. Salerno, 505 U.S. 317, 321 (1992).
See Jackson v. Mississippi Dept. Of Corrections, 359 F. App’x 499, 501 (5th Cir. 2010).
See Johnson, 33 So. 3d at 336-37 (recounting the circumstances under which Mr.
Aldridge invoked the Fifth Amendment).
to further prosecution.66 Under such circumstances, the state court did not unreasonably apply federal
law in declaring Mr. Aldridge unavailable. Petitioner concedes that there was an opportunity to crossexamine the witness at the pretrial hearing in which Mr. Aldridge gave testimony,67 and because he
was reasonably declared unavailable in accordance with United States Supreme Court precedent, this
Court agrees that his testimony was properly admitted.
C. Juror Misconduct
Petitioner claims that when the trial court allowed the jury to view the evidence in a manner
that it was not presented at trial therefore constituting extrinsic evidence. According to Petitioner, the
testimony of Deputy Bruno in which she states that a juror told her that they used the laptop to
“enhance images on the disk” supports this claim. Petitioner also relies on Louisiana law to bolster the
argument that there was juror misconduct. However, as previously stated, federal habeas review may
only consider federal law as interpreted by the United States Supreme Court.
In addressing a juror misconduct claim the Supreme Court has stated, “in a criminal case, any
private communication, contact, or tampering directly or indirectly, with a juror during a trial about
the matter pending before the jury is, for obvious reasons, deemed presumptively prejudicial, if not
made in pursuance of known rules of the court and the instructions and directions of the court made
during the trial, with full knowledge of the parties.”68 In addition, the Supreme Court has noted that
“the requirement that a jury's verdict ‘must be based upon the evidence developed at the trial’ goes to
See Rec. Doc. 14 at p. 4 ("Petitioner concedes, defense counsel did in fact have an
opportunity to cross-examine Mr. Aldridge at the pretrial motion.").
See Remmer v. United States, 347 U.S. 227, 229 (1954).
the fundamental integrity of all that is embraced in the constitutional concept of trial by jury.”69
The state district court conducted an evidentiary hearing to address Petitioner’s jury
misconduct claim. According to the state appellate court, the circumstances under which jurors viewed
the video were as follows:
As the jury deliberated, it requested to view again the surveillance video of the shooting
incident. Because of the possibility of prejudicial information in the state's computer,
the jury was offered a computer belonging to one of the deputies; however, that
computer malfunctioned. The jury viewed the video on a juror's laptop computer. After
deliberating, one of the jurors told Deputy Bruno that they viewed the video frame by
frame and could clearly see Mr. Johnson's face. Another juror told Deputy Bruno that
the state did not do a good job on the case. The juror indicated that during the trial, the
state should have shown still shots of the video frame by frame as they had seen it
during deliberations. Under cross-examination, Deputy Bruno stated that she did not see
the video during deliberations and that she did not know whether the juror's laptop
contained frame by frame enhancing software or whether the images shown were
altered in any manner. Deputy Bruno also stated that Deputy Marshall informed the
judge, the district attorneys, and defense counsel that the jury was going to view the
surveillance video on a juror's laptop computer.70
Here, according to testimony from Deputy Marshall, the video was admitted as evidence at trial
and viewed under court supervision, with knowledge of the court and without objection from the
defense.71 Because the video footage that was viewed during deliberation was admitted as evidence,
when jurors viewed the evidence on a laptop they did not infringe on Petitioner’s right to a fair trail.
Deputy Bruno’s testimony only suggests that juror’s paused the video at certain points to get
a better look at images that were already part of the record. Deputy Bruno’s testimony in which she
suggests that jurors changed their votes to “guilty” after viewing the images on a laptop does not
See Turner v. State of Louisiana, 379 U.S. 466, 471-72 (1965).
Johnson, 33 So. 3d at 337-38.
See id. at 338.
provide conclusive evidence that there was juror misconduct. Thus, Petitioner has not presented any
compelling evidence to show that the jury accessed extrinsic evidence by viewing the video on a jurors
laptop during deliberation. Considering the evidence presented in state court, it is not an unreasonable
determination of the facts for the state court to conclude that there was no juror misconduct.
D. Incomplete Transcript of Voir Dire
Petitioner claims that his conviction should be reversed because he was not provided bench
conference transcripts from the voir dire, which he alleges is vital to his appeal. Petitioner cites
Louisiana state court precedents to suggest his claim provides grounds for reversal. As previously
discussed, federal habeas review may only consider constitutional violations and noncompliance with
federal law as interpreted by the United States Supreme Court.72
The Supreme Court has rejected the argument that the State must provide a full transcript
whenever a defendant requests one.73 Rather, the Supreme Court has noted that, a state is not required
to provide parts of the transcript that are not “germane to consideration of the appeal.”74 In interpreting
this standard, the Fifth Circuit has held that when a defendant has not alleged a specific error that can
be uncovered through production of portions of the voir dire transcript not included in the record, the
state is not required to provide complete transcripts for defendants to conduct “fishing expeditions”
to seek out possible errors at trial.75
See Wilson, 131 S.Ct. at 16.
See Draper v. State of Washington, 372 U.S. 487, 495-96 (1963); See also Kunkle, 352
F.3d at 985-86 (“this Court specifically rejected the idea that a state must provide a complete
transcript for purposes of a mere “fishing expedition.”).
See Draper, 372 U.S. at 495.
See Kunkle, 352 F.3d at 985-86.
Here, Petitioner claims that a complete transcript was not provided for him so that he could find
potential claims to launch in this appeal. Petitioner points to no particular ruling in the voir dire that
he wishes to appeal, only that the transcript is his only means to assess whether the court ruled
correctly on the challenge. Without a specific issue or ruling that is contained in the bench transcript
to appeal, his claim lacks a relevant issue that would trigger a duty upon the State to provide him the
transcript. Therefore, the state court’s determination that there were no constitutional violations
regarding providing the transcript is not an unreasonable application of federal law.
Again, Petitioner has only argued that he was denied full appellate review because he has not
been provided with a transcript of bench conferences during voir dire, when the attorneys exercised
their peremptory and challenges for cause.76 While Petitioner has not framed this challenge as an
argument that he was deprived of his Sixth Amendment Right to be present at all critical stages of the
trial, even if this Court were to liberally construe this challenge as such a claim, the result here would
be no different.
The Fifth Circuit has specifically identified the jury selection process as a stage where the
defendant has a constitutional right to be present, because it is a stage at which the defendant can
provide meaningful assistance to counsel.77 However, if such an alleged deprivation is not raised at
trial, it is only subject to plain error review.78 There is nothing in the record to suggest that the trial
court expressly excluded Petitioner from these bench conferences or that Petitioner or his attorney
Rec. Doc. 3 at p. 36.
United States v. Alikpo, 944 F.2d 206, 210 (5th Cir. 1991).
United States v. Curtis, 635 F.3d 704, 714 (5th Cir. 2011).
made any objection to such a ruling. To establish plain error (1) there must be “some deviation from
a legal rule” that has not been waived by the defendant; (2) “the legal error must be clear or obvious,
rather than subject to reasonable dispute;” and (3) the error must have affected the defendant's
substantial rights, i.e., it “affected the outcome of the district court proceedings.”79 Recently, in United
States v. Thomas,80 the Fifth Circuit rejected the argument that a defendant's "absence during jury
impanelment constituted structural error, such that it is reversible per se, without a showing of
prejudice to the defendant."81 Rather, the defendant must make a showing of prejudice because of his
absence from the jury selection process.82
However, here, Petitioner has not alleged that he was excluded from jury selection.
Nevertheless, generously construing the nature of Petitioner's contentions, Petitioner may argue that
he did not participate in the bench conferences for which he now requests a voir dire script. In United
States v. Curtis,83 the defendant asserted that the district court committed plain error by allowing his
attorney to exercise his peremptory challenges in his absence.84 However, the Fifth Circuit rejected this
argument and affirmed the district court, because the defendant was present for counsel's exercise of
challenges for cause, the court's allocation of peremptory challenges to the two sides, and when the
peremptory challenges were given formal effect; therefore, the Fifth Circuit held that no error was
Puckett v. United States, 556 U.S. 129, 135 (2009).
– F.3d –, No. 12-60707, 2013 WL 3949001 (5th Cir. Aug. 1, 2013).
Id. at *3 (citing Rushen v. Spain, 464 U.S. 114, 117-21 (1983)).
635 F.3d 704.
Id. at 714.
committed.85 Further, in Thomas, the Fifth Circuit acknowledged that "'if a defendant is given an
opportunity to register his opinions with counsel after juror questioning and is present when the
exercise of strikes is given formal effect, then his constitutional right to be present is satisfied.'"86
Here, Petitioner makes no claim that he was not present during voir dire, and there is reason
to believe that he was unable to communicate with his attorney throughout. Therefore, even if he did
not participate in these bench conferences, because the court did not improperly exclude him, his right
to be present was not violated. As such, without articulating specific alleged errors during these bench
conferences, Petitioner is not entitled to these transcripts.87
For the reasons stated above,
IT IS HEREBY ORDERED that the Court ADOPTS the Magistrate Judge's recommendation
and Petitioner Johnson's petition88 is DISMISSED WITH PREJUDICE.
NEW ORLEANS, LOUISIANA, this ____ day of August, 2013.
NANNETTE JOLIVETTE BROWN
UNITED STATES DISTRICT JUDGE
Id.; see also Thomas, 2013 WL 3949001, at *5 (discussing Curtis).
2013 WL 3949001, at *5 (quoting Cohen v. Senkowski, 290 F.3d 485, 490 (2d Cir.
2002)) (emphasis added in Thomas).
See Kunkle, 352 F.3d at 985-86.
Rec. Doc. 3.
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