Floyd v. Cain

Filing 78

ORDER AND REASONS - Because Floyd has satisfied the standard necessary to overcome the untimeliness of his habeas petition, the Court remands Floyd's petition to the Magistrate Judge for an evaluation on the merits.. Signed by Judge Sarah S. Vance. (NEF: Mag 3)(jjs)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
JOHN D. FLOYD

CIVIL ACTION

VERSUS

NO: 11-2819

BURL CAIN

SECTION: R (3)
ORDER AND REASONS

Following a joint bench trial in Louisiana state court in January 1982, petitioner
John Floyd was convicted of second-degree murder of William Hines, but acquitted of
second-degree murder of Rodney Robinson. Floyd’s conviction became final when the
Louisiana Supreme Court affirmed the ruling of the trial court on June 27, 1983. State v.
Floyd, 435 So. 2d 992 (La. 1983). Floyd first filed an application for habeas corpus relief
in state court on March 2, 2006, twenty-three years after the Louisiana Supreme Court
finalized his conviction. 1 At the conclusion of his post-conviction proceedings in state
court, Floyd promptly petitioned this Court for habeas corpus relief under 28 U.S.C. §
2254. 2 To overcome the untimeliness of his petition, Floyd argues that, in light of newly
discovered evidence exculpating him of the murders of both Robinson and Hines, he is

R. Doc. 1 at 16 (“Petition for a Writ of Habeas Corpus by a Prisoner in State
Custody”). The Innocence Project New Orleans (IPNO) assisted Floyd in submitting his
first habeas petition to Louisiana state court. Between 1983 and 2006, Floyd wrote over
500 letters to IPNO and countless letters to other individuals, including the Orleans
Parish Criminal District Court, the District Attorney, United States congressmen, the
United States Department of Justice, the FBI, the NAACP, Southern Poverty Law Center,
the Center for Constitutional Rights, and others. Floyd Exhibit 51; Floyd Exhibit 57; Floyd
Exhibit 65. It appears that the habeas petition filed by IPNO on Floyd’s behalf is the first
time his requests for relief have been submitted in proper legal form.
1

2

See generally R. Doc. 1.

actually innocent of the murder of Hines. 3 See McQuiggin v. Perkins, 133 S. Ct. 1924,
1928 (2013) (“[A]ctual innocence, if proved, serves as a gateway through which a
petitioner may pass whether the impediment is a procedural bar . . . or, as in this case,
expiration of the statute of limitations).
Finding that Floyd failed to meet the high standard of actual innocence, the
Magistrate Judge issued a supplemental report recommending that Floyd’s petition be
dismissed with prejudice as untimely. 4 Floyd objects to the Magistrate Judge’s Report
and Recommendation (R&R) on several grounds. 5 First, Floyd argues that, contrary to
the Magistrate Judge’s view, the evidence overwhelmingly demonstrates that Floyd did
not, in fact, murder Robinson. Floyd also argues that because the Magistrate Judge did
not find Floyd factually innocent of the Robinson murder, the Magistrate Judge
underestimated the connection between the murder of Robinson and the murder of
Hines, which were committed within days of each other and under substantially similar

R. Doc. 61 (“Petitioner’s Brief Regarding McQuiggin v. Perkins”). Floyd filed his
original petition in this Court on November 11, 2011. See id. The Magistrate Judge issued
a report on September 28, 2012, recommending that Floyd’s petition be dismissed with
prejudice as untimely. R. Doc. 36. Floyd objected to the Magistrate Judge’s R&R on
several grounds, and this Court overruled Floyd’s objections and dismissed the petition
with prejudice on December 11, 2012. R. Doc. 52. On January 4, 2013, Floyd asked the
Court to alter or amend its earlier judgment under Rule 59(e) of the Federal Rules of Civil
Procedure. R. Doc. 54. In light of the intervening decision of the United States Supreme
Court in McQuiggin v. Perkins, 133 S. Ct. 1924 (2013), holding that proof of a habeas
petitioner’s actual innocence overcomes any untimeliness of his petition, the Court
granted Floyd’s Rule 59(e) motion and remanded the case to the Magistrate Judge to
determine whether McQuiggin provided Floyd an avenue for relief. R. Doc. 59. Floyd
and the State then submitted supplemental briefing on the issues of McQuiggin and
Floyd’s actual innocence. R. Doc. 61; R. Doc. 63; R. Doc. 66.
3

4

R. Doc. 67.

5

See generally R. Doc. 68.
2

circumstances.

In addition, Floyd contends that all of the evidence completely

undermines the credibility of Floyd’s confession to the murder of Hines. Finally, Floyd
argues that the Magistrate Judge departed from the correct legal standard and neglected
to consider the facts of this case in light of a number of other actual innocence cases.
Having reviewed the parties’ original briefing, the parties’ supplemental briefing
regarding Floyd’s actual innocence, the Magistrate Judge’s R&R, and Floyd’s objections
to the R&R, the Court sustains Floyd’s objections and rejects the Magistrate Judge’s
finding that Floyd’s petition is untimely. In doing so, the Court remains mindful that the
actual innocence standard confronted by Floyd “permits review only in the ‘extraordinary’
case.” House v. Bell, 547 U.S. 518, 538 (2006) (quoting Schlup v. Delo, 513 U.S. 298, 327
(1995)). Nonetheless, the Court finds that it is unlikely that any reasonable juror weighing
the evidence in this case would vote to convict Floyd of the murder of William Hines.
Police uncovered no physical evidence and no eyewitness testimony linking Floyd
to the scene of the crime. No weapon or other inculpatory item was found in Floyd’s
possession, and no coherent motive has ever been suggested. Rather, Floyd’s conviction
was based entirely on his own statements: a signed confession and an alleged barroom
boast. But Floyd did not only confess to and boast about killing Hines; Floyd confessed
to and boasted about killing Robinson as well. And the considerable forensic evidence
found on the Robinson scene excludes the possibility that Floyd killed Robinson as
described in his confession and strongly suggests that Floyd did not kill Robinson at all.
Physical evidence recovered on the scene of the Robinson murder suggests to a
near certainty that Robinson was stabbed to death by an African-American man with type
A blood shortly after Robinson and the man had sex. The evidence therefore excludes
Floyd, who is white and has type B blood. Semen produced by a type A male was found
3

both in Robinson’s body and on a tissue beside Robinson’s hotel room bed. A cap stained
with Type O blood—matching Robinson—was found near Robinson’s body. The cap
contained hairs from an African-American male, and the hairs did not match Robinson,
who was African American. Fingerprints taken from the scene, and not revealed until
years after trial, do not match Floyd’s. Hairs—also new evidence—found in Robinson’s
bed, on the semen-stained tissue, and around Robinson’s hotel room were produced by
two different African-American men. Finally, an eyewitness saw an African-American
male running from the scene with one hand in his pocket and looking over his shoulder
as if “he believed someone was following him.” 6
Floyd’s confession to the Robinson murder, which the evidence before the Court
strongly suggests Floyd did not commit, is strikingly similar to his confession to the Hines
murder, and the two confessions were obtained together. The persuasive force of the two
confessions are linked: if Floyd was willing—for whatever reason—to confess falsely to
killing Robinson, then it is significantly more likely that he falsely confessed to the Hines
murder too. The credibility of Floyd’s confession is further undermined by new evidence
supporting Floyd’s consistent allegation that NOPD officers beat him to coerce his
confession, and new evidence of Floyd’s vulnerability to suggestion and limited mental
capacity.
Floyd also presents further evidence of his innocence of the Hines murder. This
evidence includes: 1) the striking similarity between the Robinson and Hines murder,
which suggests that the same African-American male with type A blood committed both
murders; 2) new evidence that, contrary to the lead detective’s trial testimony, Hines had

6

Floyd Exhibit 2 at 7.
4

a preference for African-American men; 3) African-American hair found in Hines’ bed;
and 4) fingerprints found at the scene of Hines’ death that match neither Hines nor Floyd.
As more fully explained below, the Court recognizes that a confession is generally
strong evidence of guilt, but finds that the inculpatory statements at issue in this case are
unreliable and are therefore unlikely to, standing alone in the face of considerable
exculpatory evidence, cause any reasonable, properly instructed juror to vote to convict
Floyd of the murder of William Hines. The Court therefore finds that Floyd has met the
demanding standard of actual innocence and remands this case to the Magistrate Judge
for a report and recommendation on the merits of Floyd’s petition.

I.

BACKGROUND
A.

The Petitioner

At the time of the murders of William Hines and Rodney Robinson, petitioner John
Floyd, then thirty-two years old, was a “drifter,” living in the French Quarter of New
Orleans. 7 According to Floyd, he moved to New Orleans in 1975 and intermittently
worked as a furniture refinisher and deckhand. 8 Although at one time Floyd maintained
a permanent residence, he mostly lived in motels or stayed with friends in the French
Quarter. 9 According to NOPD Detective John Dillman, Floyd was a prostitute with “no
means of support” and who would have sex with men in exchange for a place to stay. 10

7

Floyd Exhibit 45 at 241 (Trial Transcript, State v. Floyd) (testifying as to his age).

8

Id. at 242-43.

9

Id. at 243-44, 252.

10

Id. at 103.
5

Floyd testified that he “never hustled on the street,” because he “always had money [from]
work[ing] on the boats and stuff.” 11 Floyd also said people let him stay at their homes
because he would “help them out,” not because they expected sex, although sometimes
Floyd had sex with the people he stayed with because he “wanted to.” 12 Dr. Marvin F.
Miller, a psychiatric and clinical medicine expert who examined Floyd’s competence to
stand trial, referred to Floyd as a “street person,” “in the sense of having only transient
relationships, drinking a lot [and] using drugs . . . making his living, if you will, by
accommodating to the wishes of other people.” 13 It is undisputed that Floyd was an
alcoholic and a drug user at the time of the murders. He was known in the French Quarter
as “Crazy Johnny” because when Floyd drank heavily, “[h]e caused a lot of problems.” 14
B.

The Crimes
1.

The Murder of William Hines

At the time of his death, William Hines was a middle-aged Caucasian man who
worked as an editor for the Times-Picayune newspaper. 15 Police found Hines’s body in
the bedroom of his home, located on Governor Nicholls Street in the French Quarter, at

11

Id. at 278.

12

Id. at 279.

13

Id. at 175.

Id. at 56. The witness who explained the background behind Floyd’s nickname
testified that these “problems” were “altercations” with other bar customers. Id. at 54-55.
When Floyd’s counsel referred to Floyd’s getting into “fights” at bars, the witness
corrected defense counsel to say, “[n]ot fights. Most of them were verbal.” Id. at 66.
14

Floyd Exhibit 3 at 3 (NOPD Supplemental Report, Murder of William Hines);
Floyd Exhibit 11 at 4 (describing Hines as “middle-aged”). At the time of his death, Hines
had worked for the Times Picayune newspaper for approximately twenty years. Floyd
Exhibit 45 at 16.
15

6

approximately 1:25 p.m. on November 26, 1980. 16

Orleans Parish Coroner Frank

Minyard determined that Hines had been dead for at least twenty-four hours before police
found his body, which means that Hines was murdered—at the latest—on November 25,
1980. 17 Hines was last seen alive at approximately 9:10 p.m. on November 24, 1980. 18 A
friend and co-worker of Hines told police on the day the body was discovered that Hines
“had not reported for work in the past two days.” 19
John Dillman served as lead detective for the Hines murder investigation.
According to his police report, Hines’s friend Thomas Bloodworth reported that Hines
was gay and “frequented several of the gay bars in the French Quarter area.” 20
Bloodworth also told Detective Dillman that Hines “would frequently attempt to pick-up
sexual partners while in an intoxicated condition.” 21 Another friend, Nobert Raacke,
“stated essentially the same information.” 22 According to Detective Dillman’s report,
John Rue Clegg, a close friend of Hines and the last person to see Hines alive, 23 told
Detective Dillman that Hines “frequently had sexual relations with both black and white

16

Floyd Exhibit 1 (NOPD Incident Report, Murder of William Hines).

17

Floyd Exhibit 3 at 3.

18

Id. at 5.

19

Id. at 2.

20

Id. at 4.

21

Id.

22

Id.

Id. (“[Bloodworth] went on to say that to his knowledge the last person to see the
victim alive was another friend, one John Clegg.”).
23

7

males” and that he “frequented several of the gay bars in the French Quarter area, often
in the early morning hours.” 24
Based on their assessment of the crime scene, police believed Hines was murdered
by a welcomed visitor. There were no signs that the perpetrator forced entry into Hines’s
home. 25 The police report notes that “the victim had apparently undressed and folded his
clothing on a chair next to the bed.” 26 Police also found “two highball glasses [containing
alcohol] on each side of the bed,” as if Hines had shared a drink with his killer. 27 The
NOPD Crime Laboratory analyzed evidence recovered from the crime scene and found
hairs belonging to an African-American person on Hines’s bed sheets. 28 Hines had
apparently been in bed with his killer, because “[f]rom all indications, the victim had been
stabbed while in the bed, jumped from the bed and began to run through the room, falling
to the floor on the right side of the bed.” 29 Detective Dillman later described the scene as
“one of the bloodiest that [he has] ever seen” and stated that “it was obvious that there

24

Id. at 6.

Id. at 3 (“Entrance into the victim’s apartment was gained through a wooden door,
which led into the living room of the apartment. This door was found ajar and no forced
entry was visible.”).
25

26

Id.

Floyd Exhibit 45 at 118; accord Floyd Exhibit 11 at 3 (August 26, 1998 Jupiter
Entertainment Interview with John Dillman) (“[T]here was [sic] two glasses on the
nightstand near the bed with alcoholic beverages in the glasses so it appeared that
whoever had killed Mr. Hines (A) . . . knew him and (b) that they had been drinking
together.”). An NOPD Crime Scene Technician Report, however, suggests that one of the
glasses was found in the kitchen rather than the bedroom. Floyd Exhibit 5 at 3.

27

28

Floyd Exhibit 40 (December 3, 1980 NOPD Crime Laboratory Report).

29

Floyd Exhibit 3 at 3.
8

had been a struggle for some time in the room.” 30 The Coroner opined that Hines’s cause
of death was “multiple stab wounds of the head and chest.” 31
2.

The Murder of Rodney Robinson

Approximately three days after the Hines murder, on November 28, 1980, a guest
at the Fairmont Hotel in New Orleans found a naked African-American man stabbed to
death in the hallway of the hotel’s tenth floor shortly before 4:45 a.m. 32 At the time of his
death, Rodney Robinson worked as the Personnel Director for the Hilton Hotel in
Houston, Texas. He was in New Orleans visiting his family for Thanksgiving. 33 Robinson
left the Fairmont Hotel on the morning of November 27, Thanksgiving Day, to spend the
day with his grandmother and uncle in Uptown New Orleans before meeting a friend
named David Hennessy around 5:30 p.m. at Hennessy’s home. 34 Robinson and Hennessy
went to several bars that night before Robinson drove Hennessy home to the Lakeview
neighborhood of New Orleans at 3:15 a.m. 35 Robinson told Hennessy that he was
returning to his hotel for the night. 36 Robinson was found dead less than ninety minutes
later.

30

Floyd Exhibit 11 at 2-3.

31

Floyd Exhibit 3 at 2-3.

32

Floyd Exhibit 4 at 2 (NOPD Supplemental Report, Murder of Rodney Robinson).

33

Id. at 8.

34

Id. at 8-9.

35

Id. at 10.

36

Id.
9

Robinson was found lying just outside of hotel room number 1091. 37 The police
report listed Robinson’s estimated time of death as 4:35 a.m. 38 Police noticed a blood
smear along the wall “leading to room 1095,” which was later determined to be Robinson’s
room. 39 Police also found a blue knit cap, stained with blood, in the same hallway as
Robinson’s body. 40 Analysis by the NOPD crime laboratory found that the blood on the
cap was type O. 41 Hair belonging to an African American—but not, according to the NOPD
lab, belonging to Robinson—was also found on the blue knit cap. 42
The locks on Robinson’s hotel room door were functional, and there was no sign of
forced entry. 43

Inside the room, police found drinking glasses, containing “what

appear[ed] to be bourbon,” on each end table next to the hotel bed. 44 “Several articles of
clothing” were found lying around the room. 45 The bed was stained with blood, and police
found blood spatter throughout the room. 46 Officers also found a white tissue paper

37

Floyd Exhibit 3 at 4.

38

Id at 1.

39

Id.

40

Id. at 6.

41

Floyd Exhibit 10 (December 12, 1980 NOPD Crime Laboratory Report).

42

Id.

43

Floyd Exhibit 3 at 4.

44

Id.

45

Floyd Exhibit 4 at 5.

46

Floyd Exhibit 3 at 4.
10

stained with seminal fluid on the floor next to the bed. 47 According to the police report,
Hennessy told NOPD detectives that Robinson was gay and that “all of Robinson’s lovers
were white males.” 48 Per the report, Hennessy also said that Robinson would never have
sex with a black man. 49
The assistant coroner noted that Robinson had suffered multiple stab wounds to
his neck, shoulders, and chest. 50 According to Detective Dillman:
As soon as [he] walked into that crime scene [he] knew again from intuition
and working these cases year in and year out . . . that [this was] the same
perpetrator. The [M.O.] was just there, no forced entry #1, a blood bath,
blood everywhere, the same type of defensive wounds that Bill Hines had,
the blood splattered all over the wall, all over the carpeting, nothing stolen
from the room . . . and glasses with alcohol beverage in them, same exact
[M.O.] 51
Hotel guests in the rooms nearest Robinson’s reported hearing someone in the
hallway screaming for help, “someone running in the hallway and the sound of someone
falling.” 52 Another guest reported hearing “a door opening, rapid footsteps in the hallway,
and the screams.” 53 A hotel security guard named Gladys McKinney reported to the
Fairmont Hotel’s in-house detective that she saw an African-American man running from

47

Id. at 5.

48

Floyd Exhibit 4 at 10.

49

Id.

50

Floyd Exhibit 3 at 5.

51

Floyd Exhibit 11 at 4.

52

Floyd Exhibit 2 at 6.

53

Id. at 7.
11

the back door of the hotel shortly before the police arrived. 54 According to McKinney, the
man was wearing blue jeans and a blue jacket and was “not dressed neatly.” 55 McKinney
saw the man run out of the hotel’s service elevator and away from the hotel, toward the
street. As he ran, the man kept his right hand in his jacket pocket, and he turned around
twice, as if “he believed someone was following him.” 56 According to the police report,
NOPD Detective Michael Rice, lead investigator for the Robinson murder, believed
“McKinney witnessed the perpetrator . . . making good his escape.” 57
C.

Floyd’s Conviction

Police arrested John Floyd on January 19, 1981. Detective Dillman and NOPD
Officer John Reilly found Floyd drinking at the Louisiana Purchase Bar in the French
Quarter sometime that afternoon. 58 At the bar, Detective Dillman and Officer Reilly
bought Floyd at least one drink before taking him outside to arrest him. 59

After

transporting Floyd to NOPD’s Homicide Office, Detective Dillman and Officer Reilly,
joined later by Detective Rice, interrogated Floyd about both murders. 60 Initially, Floyd
denied any involvement in either murder. At some point during the interrogation,

54

Floyd Exhibit 4 at 7.

55

Id. at 12.

56

Id. at 7.

57

Id. at 12.

58

Id. at 7.

Floyd Exhibit 73 at 56 (Pre-Trial Evidentiary Hearing, State v. Floyd) (testifying
that “I think that Officer Reilly had bought a couple of beers and, in fact, bought Mr. Floyd
a beer.”).
59

60

Id. at 13-14.
12

according to Detective Dillman, Floyd became “very emotional . . . sobbing that he needed
help [and] that he was, in fact, involved in these murders.” 61 The officers then obtained
from Floyd signed confessions to the murders of Rodney Robinson and Williams Hines.
Floyd’s signed confession to the Hines murder, taken by Detective Dillman at 8:35
p.m., states that Floyd confessed to the officers because he “killed two people and [he was]
sick and needed help.” 62 The confession describes Floyd’s encounter with Hines as
follows:
During October and November of [1980] I was strung out on dope and
whiskey. . . . I met this guy on Bourbon . . . and I was drinking a[]lot. . . . He
took me home with him and I was going to spend the night with him. He
lived on Gov. Nicholls [S]t. We went through[] a gate and into his
apartment. We were both drinking. We both got into bed and we had sex.
Then he told me that he wanted to fuck me and I went crazy. I had a knife
in my boot and I stabbed him a bunch of times. Then I ran out of the house
and I went back down on [B]ourbon [Street] to the bar. I stayed drinking
and the next day I heard on the street that he was dead. 63
According to the confession, Floyd stated that the sex occurred “[i]n his bed in the
bedroom.” 64 When asked to describe the sexual activity, Floyd stated: “We sucked one
another and I fucked him. Then he tried to fuck me.” 65 When officers asked Floyd what
Hines did with his clothing, Floyd said, “I undressed and placed my cloth[e]s on the bed.
Then I put them on a chair. I went to the bathroom and when I came back, he was naked

61

Id. at 59.

Floyd Exhibit 8 at 1 (January 1, 1980 [sic] Statement of John D. Floyd, Murder of
William Hines).
62

63

Id. at 3.

64

Id. at 4.

65

Id. at 5.
13

in the bed.” 66 Floyd’s confession also states that during the stabbing, Hines “fell on the
floor next to the bed. [Floyd] got dressed and when [Floyd] left [Hines] was still lying
there.” 67 The officers also asked whether Floyd was “involved in any other similar
incidents,” to which Floyd responded, “Yes. A few days after I stabbed the guy on Gov.
Nicholls [S]t[.], I stabbed a black dude in the Fairmont hotel.” 68
Floyd’s signed confession to the Robinson murder, taken by Detective Rice at 10:45
p.m., states as follows:
I met [Robinson] on Bourbon Street next to that gay bar. I think its Orleans
where I was standing at. He came up and started to talk to me and then we
went up to the Pubb Bar, that’s on Saint Ann and Bourbon Street. After we
got in the bar—I knew he was gay because he had his hand on my leg and he
kindaof [sic] told me he was gay. We stayed in the bar for a little while and
we left and walked to another bar and had a drink. I don’t remember exactly
because I was on L.S.D. and half out of my mind. We walked somewhere
and got into a car be, [sic] I don’t remember where it was parked becaused
[sic] by this time I was really fucked up. We got into the car and he drove
down close to his hotel and parked the car, but it was not in a parking lot.
We walked up the steps into the lobby of the hotel and I saw some people
on the other side of the lobby. I remember getting into the elevator and it
seemed we went up for a long distance. I remember walking down a long
hallway and following him to his room. He opened the door with the key
then I walked in behind him and I think he locked it, I am not sure. I think
I went to the bathroom and I think by the time I got out of the bathroom he
had his cloth[e]s off. He told me he wanted to suck my dick and after he was
finished I wiped my dick with a pi[e]ce of paper and threw it on the floor.
He told me he wanted [to] fuck me and that[’]s when I went berserk and
pulled my knife from my left boot and started stabbing him, man I just went
blank. I pulled my pants up and ran out the room and ran down the hall. I
got on one of the elevators and went to the lobby and ran from the hotel.
After I left the hotel I ran to Bourbon Street. I talk [sic] to this guy, I don’t
know his name. I was talking to him about the killings and I told him I had

66

Id. at 4.

67

Id. at 5.

68

Id. at 6.
14

just killed a dude. I asked him for help and he took me to Charity Hospital
to the Detoxification Center . . . . 69
Floyd waived his right to a jury trial and proceeded to a joint trial on the seconddegree murder charges before a judge in Orleans Parish Criminal District Court.70 At
trial, the State called five key witnesses. 71
Harold G. Griffin testified that he knew Floyd from meeting him “several times at
the Louisiana Purchase in the French Quarter.” 72 Griffin also said that on November 29,
1980, the day after the Robinson murder, 73 he and Floyd were drinking at the Louisiana
Purchase Bar when Floyd asked Griffin if he would walk with Floyd to the Detoxification
Center at Charity Hospital. 74 Griffin had been drinking at the bar from 10:00 p.m. to
approximately 5:00 a.m., when he left with Floyd. 75 According to Griffin, on the walk,
Floyd “mentioned that he had been treated in some type of mental health facility a couple
of times and that he heard that perhaps going to the Detox Center would be the next best
thing to keep from being held accountable for doing something wrong.” 76 Griffin said that

Floyd Exhibit 9 at 2 (January 19, 1981 Statement of John D. Floyd, Murder of
Rodney Robinson).
69

70

Floyd Exhibit 45 at 1, 5.

Id. at 2. The State’s first two witnesses—Thomas Bloodworth and Coral
Rodriguez—merely identified the victims. Id. at 15-37.
71

72

Id. at 38.

Griffin originally stated that this encounter occurred on December 29, 1980, but
later corrected himself. Id. at 39, 43.
73

74

Id. at 40.

75

Id. at 47.

76

Id. at 40-41.
15

he “couldn’t quote the precise conversation [or] quote [Floyd’s] exact words [because] he
wasn’t paying that much attention at the time.” 77 After a few minutes and more “general
chatting along,” Floyd asked Griffin if Griffin “heard of the stabbing at the Fairmont,” and
Griffin said “No.” 78 According to Griffin, “that was all that was said” and Griffin did not
“make any attempt” to follow up with Floyd about it. 79 After Griffin read about the
Robinson murder in the morning edition of the newspaper that day, Griffin told NOPD
about his conversation with Floyd. 80 Griffin testified that he called NOPD to report the
conversation because he was “surprised” that Floyd knew about the Robinson murder
before Griffin read the newspaper article about it on November 29. 81

On cross-

examination, Griffin admitted that the Times Picayune newspaper had apparently
published a story about Robinson in its evening edition the day before, on November 28—
several hours before Floyd asked whether Griffin had heard about the murder. 82 Griffin
did not know about the evening edition of the paper until after he notified the police. 83
The State also called Steven Edwards, owner of the Mississippi River Bottom Bar
in the French Quarter. 84 Floyd had been to Edwards’s bar a few times before Edwards

77

Id. at 41.

78

Id.

79

Id. at 42.

80

Id. at 43-45.

81

Id. at 50-51.

82

Id. at 50.

83

Id. at 51-52.

84

Id. at 53.
16

asked Floyd not to come back anymore because he “caused a lot of problems with the
customers and got in a couple altercations.” 85 Sometime in “the latter part of November”
1980, Edwards spotted Floyd, who had been “drinking heavily,” 86 trying to enter
Edwards’s bar. According to Edwards, he shouted at Floyd,
You can’t go in there. I don’t want you in there because you cause problems.
And [Floyd] said, “Don’t come fucking with me. I already wasted one
person.” . . . and [Edwards] said, “Who? Bill Hines?” And [Floyd] said,
“Yeah, on Governor Nichol[l]s.” And [Edwards] said, “I don’t give a shit. Get
away from here.” And [Floyd] turned and left. 87
Edwards testified that he suggested Bill Hines’s name to Floyd because Hines’s murder
had been reported in the newspaper that week. 88

On cross-examination, Edwards

testified that he did not immediately report this conversation to police and that it is “fairly
common” for certain barroom patrons to make these types of comments. 89 Edwards also
testified that he did not “know[] Floyd to carry a knife” and that he had never seen Floyd
show a knife to anyone. 90

85

Id. at 54-55.

86

Id. at 63.

87

Id. at 55-56.

88

Id. at 70.

Id. at 59, 65. This line of questioning and Edwards’s testimony was apparently a
reference to Edwards’s earlier testimony at a pre-trial evidentiary hearing. At that time,
Edwards explained that he didn’t think anything of Floyd’s comments because “that
happens in the barroom business a lot. . . . People come in and say things, ‘I beat the piss
out of this guy down the street.’” Floyd Exhibit 73 at 45-46. Edwards said that he would
“brush it off. . . . just let it go.” Id. at 46.
89

Floyd Exhibit 45 at 66. According to his pre-trial hearing testimony, Edwards had
known Floyd for about four years. Floyd Exhibit 73 at 43.

90

17

Floyd’s acquaintance and former sexual partner Byron Gene Reed also testified. 91
Reed testified that he had known Floyd for about three years. 92 He said that after
Christmas of 1980, Reed encountered Floyd on his way home, and Floyd asked Reed for
money. 93 When Reed refused, Floyd said that “he’d take care of [Reed] like he did the one
at the Fairmont.” 94 Reed also testified that Floyd threatened him “a couple of times” in
the past, but that Reed “didn’t pay [any] attention to it.” 95 Regarding the Fairmont
comment, Reed “didn’t report it [and] just forgot about it.” 96 Reed also testified that he
had never seen Floyd with a knife or “known him to carry a knife.” 97 According to Reed,
Floyd was “very gentle” and “a very nice person.” 98
Detective Dillman testified about the murder of William Hines. As Detective
Dillman explained the layout of the crime scene, he noted that police found Hines’s body,
specifically his legs, “underneath the bed and [police] had to pull the body out from it to
check . . . for signs of injuries.” 99 When shown a photograph of Hines’s body on the floor
next to the bed, Detective Dillman noted that “in th[e] photograph, the body had been

91

Floyd Exhibit 45 at 75.

92

Id. at 76.

93

Id. at 77.

94

Id.

95

Id.

96

Id. at 81.

97

Id. at 84-85.

98

Id. at 80.

99

Id. at 92.
18

moved because . . . the body was directly on the floor on the right-hand side of the bed,
near the phone. However, [police] were unable to photograph or check the victim for his
injuries until the body was moved.” 100 Detective Dillman also noted that “[t]he victim’s
clothing was on a chair directly next to the bed” 101 and that this chair and the victim’s
clothes were not visible in the photograph of the victim lying on the floor next to the
bed. 102
Detective Dillman also testified that when he and the other officers took Floyd’s
confession, “it was evident that [Floyd] had been drinking, but . . . [h]e was not intoxicated
at all.”103 Detective Dillman did not know how long Floyd had been drinking in the
Louisiana Purchase Bar before he and Officer Reilly arrested Floyd. 104
In testifying about the details of Floyd’s confession, Detective Dillman noted that
Floyd “was able to describe the position of the victim’s body. [Floyd] was able to describe
. . . the outlay of the victim’s apartment, even to detail the position of the body where it
fell off the bed.” 105 Detective Dillman emphasized that Floyd “was able to describe the
victim’s residence and the surrounding area perfectly . . . the living room, the desk, the

100

Id. at 93.

101

Id. at 92.

102

Id. at 95.

103

Id. at 102.

104

Id. at 134.

105

Id. at 108.
19

bedroom, even the position of the victim’s clothing,” which Detective Dillman said Floyd
had indicated were “on the chair in the bedroom.” 106
Regarding the African-American hairs found on Hines’s bed sheets, Detective
Dillman testified that this evidence did not indicate that an African-American person was
involved in Hines’s murder.

According to Detective Dillman, Hines was “very

indiscriminate” in his sexual preferences “and [race] didn’t make a difference,” so the hair
samples “could have been from the perpetrator or anyone who was in his apartment night
after night.” 107 Detective Dillman also testified that “various people,” whose names he did
not know, told him that Floyd carried a knife. 108
The State’s last witness was NOPD Detective Michael Rice, the lead investigator
for the Robinson murder. Detective Rice testified that, at the time of taking Floyd’s
confession, Floyd did not “appear” intoxicated. 109 On cross-examination, Detective Rice
testified that the blue knit cap from the Robinson crime scene was located further down
the hotel hallway from Robinson’s body, away from his hotel room. 110 If one were to leave
Robinson’s room (1095), pass the door to room 1091 where his body was found, and then
keep going past where the blue knit cap was found, the Fairmont Hotel’s service elevator
was on the right side of the same hallway. 111

106

Id. at 108-09.

107

Id. at 114-15.

108

Id. at 135-36.

109

Id. at 151.

110

Id. at 157-58.

111

Id.
20

Detective Rice also testified that he was “positive” that Floyd volunteered the
statement from his confession that, after having sex with Robinson, Floyd wiped himself
with a piece of paper and threw it on the floor. 112
When the State rested its case, the defense presented testimony from seven
witnesses, including Floyd. The first witness, Dr. Marvin F. Miller was accepted by the
trial court as an expert in psychiatry and clinical medicine. 113 The presiding judge had
previously appointed Dr. Miller to determine Floyd’s competency to stand trial. 114 Dr.
Miller testified that if Floyd was intoxicated, “even subclinically,” at the time of his
confessions, “this could have made him . . . vulnerable to even minimal coercion.” 115
According to Dr. Miller, based on Floyd’s lifestyle and “that he was pretty much dependent
on other people and pretty much accountable to them as a consequence, that too would,
in [Dr. Miller’s] opinion, provide [Floyd] with a degree of vulnerability to suggestions,
coercions, very likely greater than the average person . . . .” 116 On cross-examination, Dr.
Miller revealed that during his examination, Floyd admitted that he “talk[ed] about killing
people—putting holes in their heads, to his acquaintances, because of having read about
the offenses in question in the paper.” 117

112

Id. at 162.

113

Id. at 171.

114

Id. at 172.

115

Id. at 174.

116

Id.

117

Id. at 176.
21

Arthur Huddick, an expert on “the detection and treatment of alcoholics and drug
addicts” and an acquaintance of Floyd’s, also testified for the defense. 118 Huddick had
invited Floyd to an alcohol program at the St. Louis Community Center in the French
Quarter, but Floyd never attended. 119

Sometime after Floyd’s no-show, Huddick

encountered Floyd in the French Quarter, and Floyd appeared high. 120 Huddick testified
that he confronted Floyd about being under the influence, and Floyd “got real belligerent,
apparently appeared out of control.” 121 Huddick testified that this frightened him, and he
did not “frighten easily.” 122 Huddick felt “threatened” and “scared.” 123
The defense next called NOPD Criminalist Alan E. Sison to testify. 124 Sison
testified that the tissue paper next to the hotel bed at the Robinson crime scene was
stained with seminal fluid, that the blue cap found in the hallway was stained with type O
blood and contained hair from an African-American person, and that the bed sheet was
stained with type O blood. 125 Sison then testified that he analyzed Floyd’s blood type and
took saliva and hair specimens from him. 126 Sison determined that Floyd has type B blood

118

Id. at 186-87.

119

Id. at 188.

120

Id.

121

Id. at 188, 192.

122

Id. at 188.

123

Id.

124

Id. at 193.

125

Id. at 194-95.

126

Id. at 196.
22

and that Floyd’s saliva showed “secretor activity.” 127

“Secretor activity” refers to a

person’s secreting his blood type into his body fluid, such as saliva, semen, or “even . . .
the fluid in [one’s] eyes.” 128 Scientific analysis, such as that performed by Sison, can
therefore determine a “secretor’s” blood type from a stain of bodily fluid left at a crime
scene. 129
Sison determined that the seminal fluid on the tissue paper next to Robinson’s bed
belonged to a secretor with type A blood. 130 Based on this finding, Sison testified that the
seminal fluid on the tissue could not belong to Floyd—a secretor with type B blood. 131
Sison also testified that the African-American hair found in the blue cap was “dissimilar”
to Floyd’s hair, which at the time was long and blonde. 132
Another NOPD Criminalist, Daniel Waguespack, testified for the defense. 133
Waguespack testified that all of the blood found at the Hines crime scene was type A
blood; there was no evidence of type B blood on the samples obtained from Hines’s
home. 134 Waguespack noted that he found African-American pubic hairs on Hines’s bed

127

Id.

128

Id.

129

Id.

130

Id. at 197.

131

Id.

See id. at 198; accord id. at 12 (“This man obviously of somewhat dirty blonde hair
and is Caucasian.”); Floyd Exhibit 42 (Black-and-White Booking Photograph of John
Floyd).
132

133

Floyd Exhibit 45 at 202.

134

Id. at 204.
23

sheets. 135 Waguespack also found hairs “[bearing] characteristics of the Caucasion [sic]
race,” but Waguespack found it unnecessary to include in his report “that Caucasion [sic]
hairs were found on the scene of a crime where a Caucasion [sic] person was
murdered.” 136
The trial court judge asked Alan Sison to conduct additional analyses of some of
the physical evidence found at both crime scenes. When Sison returned to report his
findings, Sison explained that several hairs were found on Hines’s bed sheet—“some
Caucasion-like [sic] grayish hairs, and . . . some black pubic hairs or dark pubic hairs.” 137
Sison testified that he did not have enough hair from the crime scene to properly compare
it with Floyd’s hair. 138 Sison also explained that he could not compare the AfricanAmerican hairs from each crime scene, because the hair found at the Hines crime scene
was pubic hair, while the hair found at the Robinson crime scene was head hair. 139 There
was no way to analyze whether the hairs were similar because the specimens came from
different areas of the body. 140
Patricia Daniels, a Medical Technologist with the Orleans Parish Coroner’s Office,
testified next. Daniels tested an “oral swab,” “oral smear,” “rectal swab,” and “rectal
smear” collected from the Hines crime scene—all of which tested negative for seminal

135

Id. at 205-07.

136

Id. at 208.

137

Id. at 340. Hines was 57 at the time of his death. Floyd Exhibit 7.

138

Id. at 341.

139

Id.

140

Id.
24

fluid and spermatozoa. 141 Daniels tested the same types of swabs and smears collected
from the Robinson crime scene. 142 Robinson’s rectal swab was positive for seminal fluid,
and his rectal smear was positive for spermatozoa. 143 According to Daniels, that the swab
and smear tested positive indicated that the specimen was “relatively fresh”—only “a
couple of hours” old. 144 Daniels also conducted a “secretor test” on the rectal swab and
determined that the seminal fluid belonged to a person with type A blood. 145 Daniels
testified that if a “secretor” with type B blood, like Floyd, had recently had sex with
Robinson and expelled seminal fluid, Daniels should have found evidence of that, but
testing confirmed that the fluids at the scene were only from a person with type A blood.146
Daniels also analyzed Robinson’s blood and determined that he had type O blood—the
same type as the blood found on the hotel bed sheet and the blue cap from the hallway.147
At this point, the judge asked Daniels to test Floyd’s blood again to determine his
blood type. 148 After Daniels conducted another blood test of Floyd, she confirmed that
Floyd has type B blood. 149

141

Id. at 212.

142

Id. at 213.

143

Id.

144

Id.

145

Id. at 215-16.

146

Id. at 216-17.

147

Id. at 213.

148

Id. at 217-18.

149

Id. at 238.
25

Gladys McKinney, the security guard from the Fairmont Hotel, then testified. 150
According to McKinney, she attempted to report seeing an African-American man
running from the rear of the hotel, but “nobody paid attention to [her]” and NOPD “didn’t
believe [her].” 151 McKinney testified that as she was working in the early morning of
November 28, she heard the bell of the service elevator and heard someone running;
McKinney then saw “the man running close by . . . he turned around, turned left and kept
going.” 152 McKinney also testified that the man was African American and that he was
not wearing a hat. 153
Floyd was the final defense witness to testify. 154 Regarding Floyd’s whereabouts at
the times of the murders, Floyd testified that in 1980, he was “working in California in
different places and doing odd work here in New Orleans.” 155 On or about November 20,
1980, Floyd left California to return to New Orleans by bus, and he stopped in multiple
cities along the way. 156 Floyd testified that the bus trip between each city—San Francisco
to San Jose to “Hollywood” to San Antonio to Houston—took several hours, and in some
cities, Floyd missed the next available bus because he “was out drinking.” 157 Floyd

150

Id. at 220-21.

151

Id. at 222.

152

Id. at 223.

153

Id. at 224.

154

Id. at 239.

155

Id. at 244.

156

Id. at 245.

157

Id. at 245-49.
26

estimated that he arrived in New Orleans on November 25 around lunchtime and stayed
at the bus station for a couple of hours because he lost his luggage. 158 Floyd testified that
when he finally left the bus station, he went straight to the Louisiana Purchase Bar and
“started drinking.” 159 Defense counsel introduced into evidence some of Floyd’s bus
tickets to support his testimony. Floyd testified that on Thanksgiving, November 27, he
went to the Louisiana Purchase Bar’s “Thanksgiving party.” 160 He spent the night with
either Byron Gene Reed or his friend Morris, and when he left the next day he went back
to the Louisiana Purchase Bar to meet his friend Carl, the bartender. 161
Floyd said that on the day Detective Dillman and Officer Reilly arrested him, he
had been drinking at the Louisiana Purchase Bar since before noon. 162 Floyd also took
Quaaludes when he woke up that morning. 163 According to Floyd’s testimony, Detective
Dillman and Officer Reilly “drank with [Floyd] for a long time” and bought Floyd “five or
six beers.” 164 Floyd also testified that, during his interrogation, he insisted he was not
involved in the murders of Hines and Robinson and “that’s when [Detective Dillman]
started beating him.” 165 Floyd recalled Detective Dillman “slapping [Floyd] on the side of

158

Id. at 250.

159

Id at 251.

160

Id. at 256.

161

Id. at 256-58.

162

Id. at 261-62.

163

Id. at 264.

164

Id. at 262, 265.

165

Id. at 270.
27

the head,” 166 “kicking [Floyd] on the side of the head with his boots,” 167 and “knocking
[Floyd] off his chair on[to] the floor.” 168

Floyd also said that Detective Dillman

“threatened to put [Floyd’s] head through the brick wall and throw [Floyd] out through
the window.” 169 After that, Floyd testified, he began responding “yes” to all of Detective
Dillman’s questions about the murders. For example, according to Floyd, Detective
Dillman asked, “did [you] meet them on Bourbon Street, and [Floyd] said, ‘Yes, I met
them on Bourbon Street[,]’” or Detective Dillman “would say something and [Floyd
would] say, ‘Yes, that’s the way it happened.’” 170 Floyd said he began complying with the
officers because he “was scared” of “get[ting] killed or messed up.” 171

On cross-

examination, Floyd testified that he “never killed nobody [sic] in his life,” but that
occasionally, he “talked about” killing people while he was out drinking. 172
In his testimony, Floyd denied that he boasted about killing Hines or Robinson.
As noted, Byron Gene Reed, an acquaintance of Floyd’s, testified when he refused to give
Floyd money, Floyd said that “he’d take care of [Reed] like he did the one at the
Fairmont.” 173 Steven Edwards, owner of the Mississippi River Bar, testified that when he

166

Id.

167

Id. at 272.

168

Id.

169

Id. at 271-72.

170

Id. at 273.

171

Id.

172

Id. at 295.

173

Id.
28

tried to keep Floyd out of his bar, Floyd responded, “Don’t come fucking with me. I already
wasted one person.” Edwards then said, “‘Who? Bill Hines?’ And [Floyd] said, ‘Yeah, on
Governor Nichol[l]s.’” 174 The trial court judge asked Floyd:
You said that you talked about killing people with others. What about the
conversation Mr. Reed testified to, Byron Gene Reed? Did that conversation
take place as he said it did, that you told him after a confrontation about the
guy at the Fairmont?
A:
No, sir, I never did say that to him. I cussed him out on the street but
I never told him that.
The Court:
A:

You never told him about wasting a guy at the Fairmont?

No, sir.

The Court:

Never said that?

A:
I think he got that from the guy who owned the Mississippi River Bar,
because they were good friends.
The Court:
A:

Do you think he came in here and lied about that?

Yes, sir, he’s good about lying. I been knowing him for a long time. 175

Floyd also testified about his walk to the Charity Hospital Detoxification Center
with Harold G. Griffin. Floyd said that he learned of the Robinson murder when he saw
his friend reading an article about it in the November 28 evening edition of the Times
Picayune. 176

Floyd then testified that—consistent with Griffin’s account of their

conversation—Floyd asked Griffin if he had “heard about the killing at the Fairmont?[]

174

Id. at 55-56.

175

Id. at 298-99.

176

Id. at 329-30.
29

And [Griffin] said, ‘No,’ he hadn’t, and that’s all I told him.” 177 The trial court judge then
asked Floyd:
Did you tell Mr. Griffin, according to what he testified, that you said to him
that you wanted to go to Charity Hospital to Detox because going to Detox
would be the next best thing for being accountable for doing something
wrong?
A:
I didn’t quite put it like that. I just told him that most mental people
in New Orleans –
The Court:
A:

John, did you believe that you had done something wrong?

No, sir.

The Court: And what were you talking about then when you discussed
that with Mr. Griffin?
A:

I was just talking about my health, is what I was talking about.

The Court: What were you doing wrong with your health? You
testified . . . that you might have had a drinking problem, but you [sic] that
you don’t really think that anything really was wrong with you then.
A:
Well, sometimes my drinking gets out of hand, and I have to go to
Charity and get straightened out.
The Court:
A:

Was it out of hand then?

Well, yes, it was.

The Court: Did you do things when your drinking got out of hand that you
thought were wrong at a later time?
A:
Not nothing [sic]. I can remember everything that I did while I was
drinking.
The Court: John, we’re talking about a very serious matter here. You saw
the pictures of those two men. Did you have anything to do with that?
A:

No, sir. 178

177

Id. at 330.

178

Id. at 332.
30

The State called NOPD Officer John Reilly as a rebuttal witness. Officer Reilly
testified that, during Floyd’s interrogation, Floyd was alone in an office with Detective
Dillman for approximately twenty-five minutes. 179 Officer Reilly said that he could not
hear the conversation between Detective Dillman and Floyd, but that he was “sure if
[Floyd] had been beaten, cajoled, or threatened, or whatever, [Floyd] would have had
marks on him.” 180 Officer Reilly also testified that he bought Floyd “one beer” before
arresting him outside of the Louisiana Purchase Bar and that he was sure that they shared
“only one round.” 181
At the close of the case, on January 6, 1982, the trial court judge found Floyd not
guilty of the second-degree murder of Rodney Robinson, but guilty of the second-degree
murder of William Hines. On January 21, 1982, the judge sentenced Floyd to life
imprisonment without the benefit of probation, parole, or suspension of sentence. 182
D.

Floyd’s New Evidence

In his habeas petition to this Court, Floyd asserts that an investigation into his case
by Innocence Project New Orleans (IPNO) has uncovered significant exculpatory
evidence unknown to the convicting judge at trial. 183 Floyd’s new evidence is summarized
below.

179

Id. at 348.

180

Id. at 349.

181

Id. at 356.

182

State Record, Volume I, page 3, Docket Master entry dated 01/21/1982.

183

R. Doc. 1 at 30.
31

1.

Newly-Discovered Evidence in the Hines Case

Floyd asserts that the following evidence is relevant to the Hines murder, newlydiscovered, and exculpatory. 184
Fingerprints at the Hines Crime Scene
Police found two, used whiskey glasses in Hines’ apartment and a bottle of whiskey
on Hines’s kitchen table. On September 29, 2008, IPNO obtained copies of the NOPD
Latent Print Unit’s logbook and the envelope in which the prints were stored. 185
Regarding prints on the bottle, someone noted “NOT VICTIM” and “NOT JOHN
FLOYD.” 186 NOPD was unable to recover prints from the two glasses. 187
Affidavit of John Rue Clegg
According to Detective Dillman’s police report of the Hines murder, “Mr. Clegg
stated that to his knowledge the victim was homosexual and frequently had sexual

Floyd emphasizes that despite numerous requests, beginning in 2004, the State
has been unable to produce any evidence from the Hines investigation for DNA testing.
R. Doc. at 49-50. During the investigation of the crime scene, police found AfricanAmerican hairs on Hines’s bed sheets and “scrapings” from under Hines’s fingernails.
Floyd Exhibit 40. Apparently, the State was unable to locate this evidence in 2004, and
it was likely destroyed by Hurricane Katrina in 2005. R. Doc. 1 at 68-69 & n.18.
184

185

R. Doc. 1 at 32.

R. Doc. 13 at 1, 3 (NOPD Fingerprint Results). During an evidentiary hearing in
state court on Floyd’s post-conviction relief application, there was some dispute as to the
authenticity of the handwritten notes on the envelope and whether these notes actually
reflected the results of any fingerprint analyses. Floyd Exhibit 47 at 119-22. NOPD
apparently re-analyzed the fingerprints and fingerprint comparisons in 2011 to confirm
that Floyd was excluded as the source of the fingerprints found at both crime scenes.
Floyd Exhibit 80 at 11-13.
186

187

Floyd Exhibit 6 at 3.
32

relations with both black and white males.” 188 In an affidavit executed on June 14, 2008,
Clegg declares that this report “does not accurately reflect the information [Clegg] gave
Detective Dillman.” 189 According to Clegg’s affidavit:
[T]he subject of sex per se did not come up during our interview and
[Clegg] did not tell Detective Dillman that Bill “frequently had sexual
relations with both black and white males.” [Clegg] was never, in fact,
aware of the frequency of his sexual relations with anyone. [Clegg
told] Detective Dillman that Bill’s taste was for black men as I knew
this to be true. . . . [Clegg] know[s] that Bill’s taste was for black men
because when [Clegg and Hines] were at gay bars [Hines] would
sometimes point out the men he found attractive and they were
always black. [Clegg] also saw Bill with black men on several
occasions. From [Clegg’s] observations, Bill was often attracted to
rough looking black men . . . . 190
Jupiter Documentary and Blood Warning Evidence
In 1998, Jupiter Entertainment interviewed several people involved with the
investigations of the murders of Robinson and Hines, including Coroner Minyard and
Detective Dillman, for a potential A&E documentary. 191

According to Floyd, some

statements made during these interviews either reveal new information or contradict
evidence presented at trial. Detective Dillman also authored a book about the murders in
1989, Blood Warning: The True Story of the New Orleans Slasher. Details in the book
coincide with Detective Dillman’s statements to Jupiter Entertainment.
During Detective Dillman’s interview with Jupiter Entertainment, he described
how he and Officer Reilly arrested Floyd:

188

Floyd Exhibit 3 at 6.

189

Floyd Exhibit 21 at 1.

190

Id. at 1-2.

191

Floyd Exhibit 31.
33

We located him drinking in a bar . . . and once we located him and identified
him at the bar we made a conscious decision of rather than walking in
yelling police and having him pull a gun and whole lot of people get hurt
that we would wait until the time was right where everything was perfect
before we arrested him. We went into the bar, we ordered drinks. We started
drinking at the bar and actually befriended him. We started buying him
drinks. We had a code between myself and the other undercover officer at
the right point and time when we felt we could apprehend him and consider
the safety of all the patrons. . . . [T]hen finally when that time came we made
the arrest. 192
According to Floyd, Dillman’s statement that he and Officer Reilly “started buying [Floyd]
drinks” contradicts trial testimony that they bought Floyd only one beer and that he was
sober when he confessed. According to Floyd, this statement also supports his own
account of his arrest—that the officers bought him “five or six” drinks before they arrested
him.
Detective Dillman also described Floyd’s interrogation in his interview:
I spent hours with him. . . . Finally we got to the point, I think what finally
broke him was I showed him some of the scene photographs and I think
when he, a lot of the times when he committed these murders he was
drinking alcohol on top of PCP and I don’t think he really realized the
damage that he had done, certainly he knew he killed someone. . . . [B]ut I
don’t think he knew the extent of the multiple stab wounds, the slashing of
the neck . . . and finally when he did look at it I forget which one I showed
him, I shown him one of the scene photographs and one of the bodies and
for the first time he dropped his head . . . and then looked back to me and
his eyes had welled a little and I knew I had him at that point. 193
In Blood Warning, Detective Dillman recounted showing Floyd “two of the grisliest shots”
of the Hines crime scene in an effort to “crack him.” 194 According to Floyd, evidence that

192

Floyd Exhibit 11 at 8 (emphasis added).

193

Id. at 9-10.

Floyd Exhibit 38 at 192 (Excerpts from John Dillman, Blood Warning: The True
Story of the New Orleans Slasher (1989)).
194

34

Detective Dillman showed him crime scene photos before he confessed undermines the
theory that his confession was credible because it contained details about the crime scene.
Floyd contends that this evidence also supports his position that he was highly suggestible
and therefore vulnerable to police coercion.
Judicial Findings Regarding Detective Dillman
In 1987, approximately six years after Floyd confessed to the murders, the
Louisiana Supreme Court reversed a trial court’s admission of a confession obtained by
Detective Dillman into evidence. In State v. Seward, the defendant contended that to
obtain his confession, his interrogators—led by Detective Dillman—“repeatedly hit him in
the head, kicked and hit him in the chest and back, pushed him to the floor, and placed a
plastic bag over his head. The officers also allegedly threatened, swore and screamed at
Seward in an effort to elicit a confession.” 509 So. 2d 413, 415 & n.5 (La. 1987). 195 An
officer also “slapped and threatened [the defendant] that more beatings would be
forthcoming if he informed anyone of the prior beatings.” Id. at 416. The Louisiana
Supreme Court held that the defendant’s account of his interrogation, corroborated by a
co-defendant and a physician, “at the least . . . preponderantly establishe[d] that Seward
was beaten” and that Seward did not voluntarily confess to the crime. Id. at 419. 196

During a pre-trial evidentiary hearing, the defendant in State v. Seward testified
that Dillman started the beating and that Dillman “seemed to be the boss. He’s the one
who was doing all the hard hitting.” Floyd Exhibit 81 at 2-3.
195

Floyd also cites Kyles v. Whitley, 514 U.S. 419 (1995), and State v. Knapper, 579
So. 2d 956 (La. 1991), as relevant to his case. In Kyles, the U.S. Supreme Court reversed
a denial of a defendant’s habeas petition, which asserted various Brady violations. 514
U.S. at 419. Detective Dillman was the lead detective on the case, id. at 428, and the Court
noted that, had the suppressed evidence been introduced, “[t]he jury would have been
entitled to find (a) that the investigation was limited by the police’s uncritical readiness
to accept the story and suggestions of a [less-than-reliable] informant [and] (b) that the
196

35

Assessment of Floyd by Dr. Gregory DeClue
In 2009, Dr. Gregory DeClue, a forensic psychologist, examined Floyd. Dr. DeClue
conducted various psychological tests, which had not been developed at the time of
Floyd’s trial. 197 According to the results of Dr. DeClue’s testing, Floyd has a full scale IQ
of 59, within the “Mentally Deficient (Mentally Retarded) range.” 198 Floyd’s “perceptual
reasoning” skills score “was near the cutoff between Borderline and Mentally
Deficient.” 199 All of Floyd’s other scores—verbal comprehension, working memory, and
processing speed skills—are in the “Mentally Deficient (Mentally Retarded) range.” 200
Dr. DeClue also found that Floyd’s oral language, oral expression, listening
comprehension, and reading skills are at a second- or third-grade level, “comparable to
those of a 7- or 8-year-old child.” 201 Dr. DeClue emphasized that Floyd’s “ability to

lead police detective who testified was either less than wholly candid or less than fully
informed . . . .” Id. at 453.
In Knapper, the Louisiana Supreme Court found that the prosecution committed
a Brady violation by failing to disclose a police report to the defense. 579 So. 2d at 96061. Detective Dillman had written the report that the prosecution failed to disclose. Id.
at 958. The court’s opinion in Knapper, however, does not criticize or otherwise call into
question the credibility or reliability of Detective Dillman.
197

R. Doc. 1 at 44.

Floyd Exhibit 63 at 2. (Affidavit of Dr. Gregory DeClue). For the purpose of this
order, unless quoting an external source, the Court uses the term intellectual “ability” or
“disability.” See Rosa’s Law, Pub. L. No. 111-256 (2010) (changing legal references to
“mental retardation” to “intellectual disability”).
198

199

Id.

200

Id.

201

Id. at 3.
36

understand and communicate with others is at about the same level.” 202 In addition,
during his examination, Floyd “talked about, with some pride,” that he developed greater
reading and writing skills while incarcerated over the last two decades. 203 In his report,
Dr. DeClue emphasized that Floyd “yielded to misleading questions more than the
average person does” and “shifted his answers . . . in response to subtle pressure” more
than the average person does. 204
In analyzing Floyd’s intellectual ability, Dr. DeClue conducted certain
psychological tests to determine whether Floyd was meaningfully participating in Dr.
DeClue’s examination—in other words, Dr. DeClue tested whether Floyd was “faking it”
and therefore deliberately distorting the test results. 205 Dr. DeClue determined that Floyd
was giving his “best effort” and trying to answer Dr. DeClue’s questions correctly. 206 Dr.
DeClue’s final conclusion, based on all of his testing, was that at the time officers obtained
Floyd’s confessions, Floyd “was extremely vulnerable to police influence and extremely
susceptible to police pressure.” 207

202

Floyd Exhibit 20 at 5 (June 23, 2009 Report of Psychological Assessment).

203

Floyd Exhibit 47 at 47.

204

Floyd Exhibit 20 at 4.

205

Id. at 2.

206

Id.

207

Id. at 10.
37

2.

Newly-Discovered Evidence in the Robinson Case

Floyd also asserts that the following evidence pertaining to the murder of Rodney
Robinson is newly discovered and should be considered with the other evidence of his
innocence in the Hines murder:
Fingerprints at the Robinson Crime Scene
Police found two drinking glasses containing alcohol next to the bed in Robinson’s
hotel room. Police also found fingerprints on the passenger side of Robinson’s car and on
a glass, a cup, and a whiskey bottle inside the vehicle. On September 29, 2008, IPNO
obtained test results for these fingerprints. All of the fingerprints on one of the glasses
next to the bed belonged to Robinson. 208 Three of the fingerprints on the other glass were
noted not to belong to Robinson’s friend, David Hennessy, or to Floyd. 209

The

fingerprints from Robinson’s car were labeled, “NOT . . . DAVID HENNESSY,” “NOT
VICTIM,” and “NOT JOHN FLOYD.” 210
DNA Testing of Hairs at the Robinson Crime Scene
At trial, Floyd and his counsel knew that African-American hair that did not match
Robinson’s had been found on the blood-stained knit cap in the hotel hallway. Since then,
Floyd has learned that evidence recovered from the Robinson crime scene included “two
hairs” found on the semen-stained tissue, “several small hairs” obtained from Robinson’s
bloody bed sheets, and “one hair” found on an envelope in Robinson’s hotel room. 211 DNA

208

Floyd Exhibit 13 at 3 (“I.D. 6 THRU 14 VICTIM”).

209

Id.

210

Id.

211

Floyd Exhibit 16 at 2.
38

testing excluded Floyd as the source of any of the hairs. 212 Four of the hairs were
“consistent with one source,” and five of the hairs were “consistent with a second
source”—that is, the hair samples belong to two different people. 213 All of the hairs “fall
into groups of profiles” belonging to someone who is “African or African-American.” 214
Floyd emphasizes that by the time he discovered the additional hairs from the Robinson
scene, the State had lost or destroyed the physical evidence from the Hines scene, making
any comparison between the two impossible. 215
Floyd contends that all of this newly-discovered evidence, when viewed with the
original evidence presented at trial, supports his position that he is actually innocent of
the murder of William Hines.

II.

THE REPORT AND RECOMMENDATION
In his supplemental Report and Recommendation regarding whether the Supreme

Court’s holding in McQuiggin v. Perkins afforded Floyd relief, the Magistrate Judge
concluded that Floyd “failed to make a convincing showing of ‘actual innocence’ as
required in McQuiggin” and that therefore this Court should dismiss his petition as
untimely. 216 In arriving at this conclusion, the Magistrate Judge relied on the facts
articulated by the Louisiana Supreme Court in its 1983 opinion affirming Floyd’s

212

Floyd Exhibit 15 at 5.

213

See id. at 5.

214

Floyd Exhibit 18.

215

R. Doc. 1 at 68-69.

216

R. Doc. 67 at 3.
39

conviction. In its opinion, the Louisiana Supreme Court emphasized that both victims
were “active homosexual[s],” that Floyd made incriminating statements to two non-police
officers, and that Floyd confessed to both crimes.
The Magistrate Judge then explained that the Court’s task is not “to determine with
absolute certainty whether petitioner killed William Hines

. . . . [R]ather, the only

question this Court needs to decide is whether, based on th[e] evidence, it is more likely
than not that no reasonable, properly instructed juror would find petitioner guilty beyond
a reasonable doubt.” 217 Nonetheless, in analyzing all the evidence, the Magistrate Judge
seemed to focus on absolutes—reasoning that the lack of physical evidence pointing to
Floyd “is not determinative,” “is not proof of petitioner’s innocence,” and “in no way
precludes petitioner’s presence” at the crime scenes. 218

The Magistrate Judge also

explained that, in general, “confessions are compelling evidence of guilt,” and that “a
reasonable juror could find that both of petitioner’s confessions were unreliable given
petitioner’s low IQ and purported susceptibly to suggestion, [but that] another equally
reasonable juror could validly reach the contrary conclusion.” 219 Before concluding his
report, the Magistrate Judge noted that he “remain[ed] troubled” by the facts of this
case. 220

217

R. Doc. 67 at 10.

218

Id. at 11.

219

Id. at 12.

220

Id. at 13 & n.27.
40

Floyd objects to the R&R on five grounds. 221 First, Floyd argues, the Magistrate
Judge failed to properly consider the overwhelming weight of evidence that Floyd is
factually innocent, as opposed to merely “not guilty,” of the Robinson murder. Second,
Floyd contends that, due to the relatedness of the crimes, his factual innocence of the
Robinson murder indicates that he is also innocent of the Hines murder. Third, Floyd
argues that newly-discovered evidence further exculpates him as the perpetrator. Floyd’s
fourth and fifth objections are related: he argues that the Magistrate Judge strayed from
the proper legal standard by requiring Floyd to conclusively prove his innocence, and
failed to consider dispositive case law. 222

III.

LEGAL STANDARD
The Antiterrorism and Effective Death Penalty Act of 1996 imposes a one-year

statute of limitations period on a prisoner who applies for a writ of habeas corpus from
federal court. 28 U.S.C. § 2244(d)(1). In “extraordinary” cases, however, a criminal
defendant whose habeas petition is untimely may overcome this procedural bar if he can
prove his “actual innocence.” McQuiggin v. Perkins, 133 S. Ct. 1924, 1928 (2013) (citing
House v. Bell, 547 U.S. 518, 538 (2006); Schlup v. Delo, 513 U.S. 298, 329 (1995)).
“Actual innocence” does not require “conclusive exoneration.” House, 547 U.S. at
553. Rather, a petitioner asserting his actual innocence “must establish that, in light of
new evidence, it is more likely than not that no reasonable juror would have found
petitioner guilty beyond a reasonable doubt.” Id. at 536-37 (quoting Schlup, 513 U.S. at

221

See generally R. Doc. 68.

222

Id.
41

327). In other words, a petitioner must prove that it is more likely than not that any
reasonable, properly instructed juror would have reasonable doubt. Id. at 538.
The actual innocence standard encompasses three important principles. First, a
“credible [actual innocence] claim requires new reliable evidence—whether it be
exculpatory scientific evidence, trustworthy eyewitness accounts, or critical physical
evidence—that was not presented at trial.” Id. at 537 (quoting Schlup, 513 U.S. at 324).
Second, although a petitioner asserting his actual innocence must present new evidence,
the court’s analysis “is not limited to such evidence.” Id. “The habeas court must consider
all the evidence, old and new, incriminating and exculpatory, without regard to whether
it would necessarily be admitted under rules of admissibility that govern at trial.” Id. at
538 (quoting Schlup, 513 U.S. at 327). Third, the “demanding” actual innocence standard
“permits review only in the extraordinary case.” Id. (citation omitted); see also Fairman
v. Anderson, 188 F.3d 635, 644 (5th Cir. 1999) (“[O]ur precedent confirms that the
mountain . . . a petitioner must scale in order to prove a fundamental miscarriage claim
is daunting indeed.”).
“At the same time, though, the [actual innocence] standard does not require
absolute certainty about the petitioner’s guilt or innocence.” House, 547 U.S. at 538. The
court must determine whether the facts of innocence are so atypical or remarkable that
“no juror, acting reasonably, would have voted to find [the petitioner] guilty beyond a
reasonable doubt.” McQuiggin, 133 S. Ct. at 1928 (citations omitted). In doing so, the
court must “assess the likely impact” of “the overall, newly supplemented record” on a
jury and make “a probabilistic determination about what reasonable, properly instructed
jurors would do.” House, 547 U.S. at 538 (quoting Schlup, 513 U.S. at 299).

42

IV.

DISCUSSION
A.

Floyd Did Not Unreasonably Delay Presenting Sufficiently
“New” Evidence to the Court

The State contends that Floyd unjustifiably delayed presenting his actual
innocence claims to this Court and that the timing of Floyd’s habeas petition should
undermine the credibility of his actual innocence claim. 223
In McQuiggin, the Supreme Court held that there is no threshold diligence
requirement for a petitioner wishing to assert a claim of actual innocence to overcome the
applicable statute of limitations. 133 S. Ct. at 1935-36. Rather, “unexplained delay” is
merely a factor habeas courts should consider in “evaluating the reliability of a petitioner’s
proof of innocence.” Id. at 1935. A court should consider, for example, “how the timing
of the submission and the likely credibility of [a petitioner’s] affiants bear on the probable
reliability of that evidence.” Schlup, 513 U.S. at 332; see also Dowthitt v. Johnson, 230
F.3d 733, 742 (5th Cir. 2000) (finding petitioner’s newly-discovered evidence
“particularly suspect” because he presented only affidavits consisting of hearsay that were
inconsistent with the physical evidence).
Here, the timing of Floyd’s petition does not seriously undermine the reliability or
credibility of his newly-discovered evidence. Much of the evidence (fingerprint analyses,
DNA testing, and Dr. DeClue’s expert opinion) is science-based and therefore less
susceptible to manipulation by a petitioner “l[ying] in wait [to] use stale evidence.”
McQuiggin, 133 S. Ct. at 1936; see also Schlup, 513 U.S. at 324 (listing “exculpatory
scientific evidence” as an example of “new reliable evidence”).

223

R. Doc. 63 at 12.
43

As for the newly-

discovered statements by Detective Dillman and John Rue Clegg, the State does not argue
that any of these people have died or otherwise cannot rebut new evidence upon further
questioning. McQuiggin, 133 S. Ct. at 1936. Notably, NOPD Detective John Dillman is
aligned with the State and thus has no reason to concoct evidence tending to undermine
the State’s interest in Floyd’s conviction.

Cf. House, 547 U.S. at 552 (noting that

“incriminating testimony from inmates, suspects, or friends or relations of the accused”
may have questionable probative value). Similarly, Clegg was a close friend of one of the
victims, and has no apparent connection to Floyd, which makes it unlikely that Clegg
would execute an untruthful affidavit in support of Floyd’s innocence. See House, 547
U.S. at 551 (crediting post-conviction witness testimony when “the record indicate[d] no
reason why [they] would have wanted . . . to help [the defendant]”); Schlup, 513 U.S. at
316 (finding “particularly relevant” newly-obtained affidavits by “black inmates attesting
to the innocence of a white defendant in a racially motivated killing”). Therefore, none of
the new evidence on which Floyd depends is facially unreliable, and the Court does not
consider it to be so merely because it was allegedly discovered years after Floyd’s
conviction.
The State also argues that the “vast majority” of Floyd’s evidence is “not new, but
was available and in fact introduced at Floyd’s trial” and that therefore the Court should
not consider it in its evaluation of Floyd’s actual-innocence claim. 224 As an initial matter,
this argument rests on a misstatement of the facts. For example, the State contends that
“the lack of Floyd’s fingerprints at either crime scene was introduced at his trial and

224

Id. at 4.
44

properly discounted.” 225

The record reveals, however, that the word “finger” or

“fingerprint” was mentioned only three times, none of which pertained to evidence found
at either crime scene. 226
Additionally, the State argues that Floyd’s “claims of retardation” are not new
because Floyd originally pleaded not guilty by reason of insanity and, following a “lunacy
hearing,” the court found Floyd competent to stand trial. 227 The State also notes that Dr.
Marvin Miller, one of the doctors who evaluated Floyd, testified in response to a single
question that Floyd “may well have [been] vulnerable to even minimal coercion.” 228 Read
in context, Dr. Miller’s testimony was that Floyd’s habitual intoxication and drug
dependence (as well as his “homosexual activity”) indicated that Floyd was vulnerable to
coercion. Dr. Miller explained:

225

Id. at 4-5.

Floyd Exhibit 45 at 209 (“Q: How specific can you be in comparing hairs? Is a hair
like a fingerprint?” “A: No, sir.”), 217 (“Q: You didn’t blood type the defendant, did
you? . . . How hard is that to do?” “A: To blood group the defendant? You just have to
stick him in the finger.”), 333 (“Q: Don’t you remember when you were booked . . . they
took your fingerprints and they took a picture of you?” “A: Yes, sir.”), 334 (“Q: And you
remember they took your fingerprints and they got some information about where you’re
from and they took your picture, do you remember that?” “A: Yes, sir, okay.”).
226

R. Doc. 63 at 5-6; see State Record, Volume 1, page 1, Docket Master entry dated
04/08/1981.
227

228

R. Doc. 63 at 6.
45

[I]f, in fact, [Floyd] were intoxicated, even subclinically, this could have well
have [sic] made him vulnerable to even minimal coercion. I would say as
well that, given the lifestyle that he described, given the fact that he was
pretty much dependent on other people and pretty much accountable to
them as a consequence that that too would, in my opinion, provide him with
a degree of vulnerability to suggestions, coercions, very likely greater than
the average person would have, or someone who was not living in this
particular lifestyle, someone who was not abusing drugs and/or alcohol, and
someone who was not apparently involved in some kind of homosexual
activity. 229
This testimony does not address Floyd’s mental capacity and what effect, if any, his
intellectual capabilities had on his suggestibility or vulnerability to police pressure, the
subject of Dr. Gregory DeClue’s expert opinion. Dr. DeClue’s expert opinion is also based
on the results of psychological testing which did not exist in 1982.
The State also describes Floyd’s newly-discovered evidence of additional hairs at
Robinson’s crime scene and the DNA testing of those hairs as “absurd” because it is
“patently obvious” that African-American hairs could not belong to Floyd, who is white.
At trial, however, it appeared the only hair discovered at the Robinson crime scene was
the head hair found on the blue knit cap—there was no mention of hair on the semenstained tissue, on Robinson’s bloody bed sheets, or on an envelope found in Robinson’s
room. In addition, Floyd’s DNA testing does more than merely exclude Floyd as the
source of the hairs; it points to a new, albeit unidentified, suspect because the hairs came
from two different African-American men: one presumably Robinson, and the other a
man who was in his bed at some point before his death. 230 See House, 547 U.S. at 548-49

229

Floyd Exhibit 45 at 174.

230

Floyd Exhibit 18.
46

(finding actual innocence when petitioner’s newly-discovered evidence pointed to a
different suspect).
Regardless of the State’s opinion of what evidence is “new” enough, if Floyd has
presented any “new reliable evidence,” which he has, the Court “must consider all the
evidence, old and new, incriminating and exculpatory, without regard to whether it would
necessarily be admitted under rules of admissibility that govern at trial.” Id. at 537-38
(emphasis added).
B.

The Combined New and Old Evidence Excludes The Possibility
That Floyd Killed Robinson in the Manner Described in his
Confession and Strongly Suggests that Floyd Did Not Kill
Robinson At All.

The physical evidence found at the scene of Robinson’s death excludes the
possibility that Floyd killed Robinson in the manner described in his confession. The
same evidence strongly suggests that Robinson was not killed by Floyd, and was instead
killed by an African-American man with type A blood shortly after Robinson and the man
had sex.
In his confession, Floyd states that he “wiped [his] dick with a pi[e]ce of paper and
threw it on the floor.” 231 Detective Rice testified at trial that he was “positive” Floyd said
this. 232 The statement matches the physical evidence as detectives found it on the scene:
a tissue stained with seminal fluid was found next to the bed. 233 Forensic analysis,
however, excludes the possibility that the seminal fluid belonged to either Floyd or

231

Floyd Exhibit 9 at 2

232

Floyd Exhibit 45 at 109.

233

Floyd Exhibit 3 at 5.
47

Robinson. The seminal fluid was produced by a man with type A blood; 234 Floyd has type
B blood, 235 and Robinson had type O blood. 236 The conclusion that the tissue was not
used by Floyd is further bolstered by new evidence that hairs found on the tissue do not
belong to Floyd, but are rather African American in origin. 237

This fact alone

demonstrates that Floyd’s confession is inconsistent with the evidence found at the
Robinson scene and therefore does not accurately describe the circumstances
surrounding Robinson’s death.
A second clear factual inaccuracy in the Robinson confession involves Floyd’s visit
to Charity Hospital. Robinson was killed at approximately 4:35 a.m. on November 28,
1980. 238 In his confession, Floyd describes his actions immediately following the murder:
After I left the hotel I ran to Bourbon Street. I talk [sic] to this guy, I don’t
know his name. I was talking to him about the killings and I told him I had
just killed a dude. I asked him for help and he took me to Charity Hospital
to the Detoxification Center and then left. 239
This passage plainly suggests that Floyd went to Charity Hospital on the morning of the
28th, immediately following the murder. This account superficially matches what Harold
Griffen told detectives months earlier: Floyd spoke about Robinson’s murder during a

234

Floyd Exhibit 45 at 197.

235

Id.

236

Id. at 213.

237

Floyd Exhibit 16 at 2; Floyd Exhibit 15 at 5.

238

Floyd Exhibit 2 at 1.

239

Floyd Exhibit 9 at 2.
48

walk from Bourbon Street to Charity Hospital. 240 In reality, however, Hospital records
obtained by Floyd’s trial attorney confirm that Floyd was admitted to Charity over 24
hours after the murder, on the morning of November 29. 241
The remaining physical evidence casts further doubt on Floyd’s confession and
other alleged inculpatory statements. Medical technologist Daniels testified that a swab
of Robinson’s rectum tested positive for seminal fluid. 242 The fluid was produced by a
man with type A blood. 243 According to Daniels, that the swab and smear tested positive
indicated that the specimen was “relatively fresh”—at most only “a couple of hours” old. 244
Hennessey, Robinson’s friend, told police that Robinson left Hennessey’s home in the
Lakeview neighborhood of New Orleans at 3:15 a.m., approximately 80 minutes before
his death. 245 The physical evidence therefore conclusively demonstrates that Robinson
had sex with a type A man within hours of his death, and—because the tissue was found
in Robinson’s room—suggests to a level of near certainty that the sex occurred in
Robinson’s room. Furthermore, crediting Hennessey’s account, the sexual encounter
with a man other than Floyd occurred less than 80 minutes before Robinson’s death.
Hair and fingerprint evidence found at the scene—much of it new evidence
unavailable to the trial court—strengthens the inference that someone other than Floyd

240

Floyd Exhibit 3 at 4.

241

Floyd Exhibit 45 at 48.

242

Id. at 213.

243

Id. at 215-16.

244

Id. at 213.

245

Floyd Exhibit 4 at 10; Floyd Exhibit 3 at 2-3; R. Doc. 1 at 29 n.11.
49

killed Robinson. None of the considerable forensic evidence found on the scene could
have been produced by Floyd. Fingerprints found on drinking glasses in Robinson’s room
and on the passenger side of Robinson’s car did not match Floyd’s, Hennessy’s, or
Robinson’s. 246 A DNA test revealed that hairs found on the tissue, bed sheets, and
envelope in Robinson’s room are not attributable to Floyd. 247 The hairs were rather
produced by two different African-American men. 248
Perhaps most compellingly, the knit cap found by police contained type O blood,
matching Robinson, and hairs from an African-American man other than Robinson. 249
The cap was found approximately ninety feet from Robinson’s body, and was recovered
further down the hallway from Robinson’s room than the body. 250 In other words,
Robinson collapsed before he reached the point where the cap was found. This fact,
combined with the type O blood and hairs on the cap, strongly suggests that the cap was
worn by the killer, rather than Robinson, and that the killer was African American. This
inference is further supported by the account of hotel security guard Gladys McKinney.
McKinney described an African-American male with short hair running from the
premises with his right hand in his pocket and looking back as if he was being followed. 251

246

Floyd Exhibit 13 at 3

247

Floyd Exhibit 15 at 5.

248

See id.

249

Floyd Exhibit 3 at 6; Floyd Exhibit 10.

250

Floyd Exhibit 45 at 157-56; Floyd Exhibit 6 at 13.

251

Floyd Exhibit 4 at 11-12.
50

According to the police report, Detective Rice believed at the time that “McKinney
witnessed the perpetrator of the Robinson Murder making good his escape.” 252
To explain the evidence suggesting that a man other than Floyd was in Robinson’s
room before the murder, the Magistrate Judge theorized that someone else’s presence in
Robinson’s room “in no way precludes petitioner’s presence at a different time” 253 This
“different time” theory is difficult to square with the evidence and Floyd’s confession. As
noted above, the physical evidence and Hennessey’s account strongly suggest that
Robinson had sex with a man with type A blood in his room less than 80 minutes before
his death. As a result, for Floyd’s confession to be truthful, the following sequence of
events would need to have occurred over the span of those 80 minutes: 1) Robinson leaves
Hennessey’s home in the Lakeview neighborhood of New Orleans, drives back to the
Fairmont, parks his car nearby, and returns to his room; 2) Robinson undresses and has
anal sex in his room with a man with type A blood; 3) Robinson dresses, leaves his room,
returns to his car, and drives to Bourbon Street; 4) Robinson parks his car and walks to a
bar, where he meets Floyd; 254 5) the two men talk, and then go to the Pubb bar at the
corner of Saint Ann and Bourbon Streets; 255 6) the two men stay in the Pubb bar for “a
little while,” and then walk to another bar and get a drink; 256 7) the two men walk to

252

Id. at 12

253

R. Doc. 67 at 11.

254

Floyd Exhibit 9 at 2.

255

Id.

256

Id.
51

Robinson’s car, drive back to the Fairmont, park near the hotel on Common Street, 257 and
walk to Robinson’s room on the tenth floor;258 8) Robinson undresses and Floyd uses the
bathroom; 259 9) Floyd partially undresses, and Robinson performs oral sex on Floyd; 260
10) Floyd wipes himself with a tissue, 261 11) Floyd stabs Robinson multiple times and the
two men struggle, 12) Robinson staggers out of the room and into the hallway, walking
several feet before he collapses and dies. 262 Completing this sequence in the time allotted
appears implausible, but even assuming that Robinson could have done all this in 80
minutes, the “different time” theory cannot explain the absence of Floyd’s semen on the
tissue, the African-American hairs and type O blood found on the knit cap, or McKinney’s
account of the fleeing African-American man.
In short, the considerable physical evidence discovered at the scene of Robinson’s
death, including evidence never presented to the trial judge, both contradicts key details
of Floyd’s confession and strongly suggests that Floyd did not murder Robinson.
C.

The Combined New and Old Evidence Greatly Undermines the
Persuasive Weight of Floyd’s Confession and Evidence of his
Boast in the Hines Murder.

As was true of the Robinson scene, there is no physical evidence linking Floyd to
the Hines scene. Instead, as with Robinson, hairs recovered from Hines’ bedsheets place

257

Floyd Exhibit 4 at 10.

258

Floyd Exhibit 9 at 2.

259

Id.

260

Id.

261

Id.

262

Id.
52

an African-American person in Hines’ bed some time before the murder. 263 The only
other forensic evidence found on the scene, excepting Hines’ own blood, was a number of
fingerprints on a whiskey bottle discovered on Hines’ kitchen table. 264 These prints
matched neither Floyd nor Hines, 265 further confirming the presence of another person
in Hines’ home sometime before his death.
Because of the dearth of physical evidence linking him to the crime, Floyd was, as
noted by the Magistrate Judge, convicted of murdering Hines based only on his selfincriminating statements—his confession to Detective Dillman, and his alleged threat to
Steven Edwards. As a result, the State’s case rises and falls with these two pieces of
evidence: if no reasonable, properly instructed juror would conclude that this evidence is
persuasive enough—on its own—to eliminate any reasonable doubt that Floyd murdered
Hines, then Floyd’s untimeliness is excused based on a showing of actual innocence.
Floyd submits several pieces of newly-discovered evidence that he contends
undercuts the reliability of his inculpatory statements and the credibility of police
testimony at his trial. See House, 547 U.S. at 538-39 (“If new evidence so requires, [an
actual innocence claim] may include consideration of the credibility of the witnesses
presented at trial.” (quoting Schlup, 513 U.S. at 330)). This new evidence—combined with
the old and new evidence from the Robinson scene—significantly undermines the
persuasive weight of Floyd’s confession and alleged boasting.

263

Floyd Exhibit 40.

264

R. Doc. 13 at 1, 3; Floyd Exhibit 80 at 11-13.

265

R. Doc. 13 at 3.
53

1.

The Credibility of the Two Confessions is Intertwined.

Despite Floyd’s alleged boasts and his confession to the Robinson murder, the
physical evidence at the Robinson scene, as noted above, strongly suggests that Floyd did
not murder Robinson at all. Furthermore, undisputed evidence directly contradicts
crucial and detailed elements of Floyd’s story: Floyd’s claim that he wiped himself with a
piece of paper after ejaculating and threw the paper on the floor, and his claim that he
went to Charity hospital after killing Robinson.
Floyd’s confession to the Robinson murder is closely linked with his confession to
the Hines murder. The two statements were taken one after the other, and the two
accounts feature striking similarities. 266 For instance, the Hines confession states, “I went
to the bathroom and when I came back, he was naked in the bed.” 267 The Robinson
confession states, “I think I went to the bathroom and I think by the time I got out of the
bathroom he had his cloths [sic] off.”268 The Hines confession: “We both got into bed and
we had sex. Then he told me that he wanted to fuck me and I went crazy. . . . I went
berserk.” 269 The Robinson confession: “He told me he wanted [to] fuck me and thats [sic]
when I went berserk.” 270 The Hines confession: “I had a knife in my boot and I stabbed

R. Doc. 1 at 46-47 (charting the similarities between the two confessions).
According to police testimony, the officer officially taking the statement transcribed what
Floyd said as he spoke. Floyd Exhibit 45 at 111 (“I would ask the defendant a question,
type the question, receive his answer, and then type the answer in it.”).
266

267

Floyd Exhibit 8 at 4.

268

Floyd Exhibit 9 at 2.

269

Floyd Exhibit 8 at 3, 5.

270

Floyd Exhibit 9 at 2.
54

him a bunch of times. Then I ran out of the house and I went back down on bourbon st.
[sic] too [sic] the bar.” 271 The Robinson confession: “[I] pulled my knife from my left boot
and started stabbing him . . . . I pulled my pants up and ran out the room . . . . After I left
the hotel I ran to Bourbon Street.” 272
Even discounting the similarities between the confessions, and that they were
obtained together, a reasonable fact finder would conclude that the persuasiveness of the
two statements is intertwined. If Floyd was willing—for whatever reason—to falsely
confess to one murder, it is far more likely that his other confession is false as well. The
considerable evidence tending to undermine the Robinson confession, therefore, also
serves to undercut the Hines confession.
2.

Floyd’s New Evidence Further Undercuts the Persuasive
Weight of the Hines Confession.

The persuasive weight of Floyd’s confession to the Hines murder is further eroded
by Floyd’s new evidence of his own vulnerability to coercion, and evidence suggesting that
Detective Dillman coerced a confession by beating a suspect in another case. In support
of his claimed vulnerability, Floyd presents the expert opinion of Dr. Gregory DeClue. Dr.
DeClue concludes that Floyd’s deficient cognitive ability makes him “extremely
vulnerable” and “extremely susceptible” to police pressure or influence. 273 In June 2009,
Dr. DeClue determined that Floyd had a full-scale IQ of 59, which places Floyd in the

271

Floyd Exhibit 8 at 3.

272

Floyd Exhibit 9 at 2.

The State has not argued that Dr. DeClue’s opinion or methodology is in any way
unreliable to the point of inadmissibility, and a review of his CV, report, affidavit, and
testimony, reveals he is well-credentialed.

273

55

bottom 0.3 percentile of all adults. 274 At Floyd’s post-conviction evidentiary hearing in
state court, Dr. DeClue testified that the “cutoff for mental retardation is, typically, set at
70.” 275 Floyd’s cognitive abilities in other areas, like verbal comprehension, perceptual
reasoning, working memory, and processing speed, were all in the “Mentally Deficient
(Mentally Retarded) range.” 276 Floyd tested highest in perceptual reasoning, where he
scored a 71. 277 See generally Steven A Drizin & Richard A. Leo, The Problem of False
Confessions in the Post-DNA World, 82 N.C.L. Rev. 891, 971 (2004) (noting that “[t]he
unique vulnerability of the mentally retarded to psychological interrogation techniques
and the risk that such techniques when applied to the mentally retarded may produce
false confessions is well-documented in the false confession literature”). Dr. DeClue noted
that Floyd’s scores on the Woodcock-Johnson Tests of Achievement-III were comparable
to those of a seven- or eight-year-old child. Dr. DeClue also emphasized that Floyd
reported “with some pride” that his skills in these areas have increased since he has been
incarcerated over the last twenty years. 278
The State argues that Dr. DeClue’s expert opinion on Floyd’s mental deficiency is
unpersuasive because “Floyd clearly had the mental acuity to craft an alibi defense . . . as
well as to concoct a story about having been beaten into confessing.” 279 The State

274

Floyd Exhibit 20 at 3.

275

Floyd Exhibit 47 at 45.

276

Floyd Exhibit 20 at 3.

277

Id.

278

Floyd Exhibit 47 at 47.

279

R. Doc. 63 at 9.
56

emphasizes that Floyd’s testimony “stretched for 100 transcribed pages.” 280 The State’s
argument is circular because it assumes Floyd’s guilt: if Floyd is innocent then he need
not have the ability to “concoct” a story at all. Furthermore, a review of Floyd’s testimony
reveals that the State’s characterization of his testimony as “cogent and coherent” is
generous. At trial, Floyd often appeared confused and had difficulty expressing himself
when answering straightforward questions. 281
Dr. DeClue also found that, in addition to exhibiting mental deficiency, Floyd is
highly suggestable. Floyd’s test scores on the Gudjonsson Suggestibility Scale and
Gudjonsson Compliance Scale indicate that Floyd “yield[s] to misleading questions,”
“shift[s] answers . . . in response to subtle pressure,” and “compl[ies] with interpersonal
pressure from authority figures” more than the average person would. 282 See also Eugene
R. Milhizer, Confessions After Connelly: An Evidentiary Solution for Excluding
Unreliable Confessions, 81 Temp. L. Rev. 1, 14 (2008) (“Certain characteristics common
among mentally retarded persons make them particularly prone to confess falsely. For
example, mentally retarded suspects are often motivated by a strong desire to please
authority figures, even if to do so requires them to lie and confess to a crime that they did
not commit.”). According to Dr. DeClue, all of Floyd’s test results support the conclusion

280

Id.

For example, the prosecutor, defense counsel, and the court repeatedly asked
Floyd to clarify whether when he said that his bus to New Orleans on November 25, 1980,
arrived at “1:00 a.m.” meant one o’clock in the morning or the afternoon. When asked if
he arrived in the afternoon, Floyd responded affirmatively. When asked if he arrived at
“1:00 a.m.,” Floyd responded affirmatively. Floyd Exhibit 45 at 302-304.
281

282

Floyd Exhibit 20 at 4-5.
57

that Floyd is highly suggestible. 283 Dr. DeClue also ruled out the possibility that Floyd
was faking his cognitive abilities or otherwise distorting the results on which Dr. DeClue
relied. 284
Floyd’s evidence that he was vulnerable to coercion is particularly relevant given
Floyd’s consistent allegations that he was beaten before he gave his confession. See State
v. Trudell, 350 So. 2d 658, 662 (La. 1977) (finding when defendant had “an I.Q of about
60, or a mental age of about nine years . . . and was easily led and very suggestible . . . the
state had a heavy burden of proving, beyond a reasonable doubt that [defendant’s]
confession was voluntary . . . trustworthy and the product of a free and rational choice”).
At trial, Floyd testified that Detective Dillman “slapp[ed Floyd] on the side of the
head,” 285 “kick[ed Floyd] on the side of the head with his boots,” 286 “knock[ed Floyd] off
his chair on[to] the floor,” 287 and “threatened to put [Floyd’s] head through the brick wall
and throw [Floyd] out through the window.” 288 Floyd’s trial testimony is supported by
new evidence regarding Detective Dillman’s treatment of another suspect. In State v.
Seward, the Louisiana Supreme Court found that the defendant had preponderantly
established that he was beaten by Detective Dillman during his interrogation. 509 So. 2d
413, (La. 1987). Seward’s description of his beating was similar to Floyd’s—Detective

283

Floyd Exhibit 47 at 50.

284

Id. at 42-44, 76; accord Floyd Exhibit 20 at 2.

285

Id.

286

Id. at 272.

287

Id.

288

Id. at 271-72.
58

Dillman “repeatedly hit him in the head, kicked and hit him in the chest and back, pushed
him to the floor, and placed a plastic bag over his head. The officers also allegedly
threatened, swore and screamed at Seward in an effort to elicit a confession.” Id. at 415,
n.5.
The State correctly argues that the Louisiana Supreme Court’s finding, under a
preponderance of the evidence standard, that Detective Dillman coerced a confession in
another case is far from conclusive on its own. But “a brick is not a wall,” and evidence of
Detective Dillman’s treatment of Seward supports Floyd’s allegation of physical abuse and
further erodes the persuasive weight of Floyd’s confession.
3.

The Evidence Undermines the State’s Argument that
Floyd’s Confession is Reliable Because Floyd Volunteered
Specific Information About the Scene.

At trial, the State attempted to bolster the credibility of Floyd’s confessions by
presenting evidence that Floyd volunteered specific details about both crime scenes. This
argument is weakened, however, by the substantial evidence that detectives, knowingly
or otherwise, provided Floyd with significant information about the crime scenes during
the combined interrogation. Perhaps most notably, Floyd’s statement regarding the
tissue in the Robinson case matches the physical evidence as perceived by detectives at
the time of interrogation—after the tissue had been discovered but before the blood type
had been compared to Floyd’s—but not the scene as it actually existed. In other words,
Floyd’s apparent knowledge of this key detail at the time of his confession went only as
far as what detectives already “knew,” even when that supposed knowledge would later
be contradicted by forensic analysis.

See Garrett, supra, at 1059 (“[U]nless

interrogations are recorded in their entirety, courts may not detect contamination of facts
. . . .”).
59

Similarly, Floyd’s confession about the position of Hines’s body appears to
accurately describe a crime scene photo, but not the scene as actually found by police. In
the relevant photo, Hines’s whole body is shown lying on the right side of his bed 289 and
Floyd’s confession states, “[h]e fell on the floor next to the bed. I got dressed and when I
left he was still lying there.” 290 But, as Detective Dillman testified at trial, Hines’s “legs
were actually underneath the bed and [police] had to pull the body out from it to check
the body for signs of injuries.” 291 Detective Dillman stated that the photograph depicted
Hines’s body after it had already been moved because the photograph shows “the
body . . . directly on the floor on the right-hand side of the bed.” 292
Floyd’s description of a crime scene photo rather than the scene itself may be
explained by Detective Dillman admission, made only after Floyd’s conviction, that in
order to “crack” Floyd, he showed Floyd photos of Hines’s dead body before Floyd
confessed. 293 This admission blunts the effect of Detective Dillman’s testimony that
Floyd:

289

See Floyd Exhibit 41.

290

Floyd Exhibit 8 at 5.

291

Floyd Exhibit 45 at 92.

292

Id. at 93.

Floyd Exhibit 38 at 192 (“I selected two of the grisliest shots: one depicting multiple
stab wounds, the smeared, dried blood everywhere on the victim’s body . . . .”); accord
Floyd Exhibit 11 at 9-10 (“I spent hours with him. . . . Finally we got to the point, I think
what finally broke him was I showed him some of the scene photographs . . . .”)

293

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described the scene . . . vividly. He remembered the iron gate. 294 He was
able to describe the position of the victim’s body. He was able to describe to
me the outlay of the victim’s apartment, even to detail the position of the
body where it fell off the bed. 295
Detective Dillman further stated that Floyd “was able to describe the victim’s residence
and the surrounding area perfectly, the inside of the residence, the living room, the desk,
the bedroom, even the position of the victim’s clothing,” which, according to Detective
Dillman, Floyd said was “on the chair in the bedroom.” 296 But Floyd’s confession, which
Detective Dillman said he contemporaneously transcribed, 297 says nothing about the
location of Hines’s clothing. Rather, when asked whether he recalled what Hines did with
his clothing, Floyd responded “I undressed and placed my cloths [sic] on the bed. Then I
put them on a chair. I went to the bathroom and when I came back, he [Hines] was naked
in the bed.” 298

Similarly, Floyd’s supposed ability to describe the “residence and

surrounding area perfectly” 299 is not reflected in the confession. According to that
document, when asked if he could “furnish . . . a description of the Hines residence,” Floyd
responded: “All I remember, is that it was on Gov. Nicholls st [sic], near the river.”
Detective Dillman inquired further, asking “[d]o you recall the interior of the

On this point, Floyd’s confession says only: “We went throught [sic] a gate and
into his apartment.” Floyd Exhibit 8 at 3.
294

295

Floyd Exhibit 45 at 108.

296

Id. at 108-09.

297

Id. at 111.

298

Floyd Exhibit 8 at 4.

299

Floyd Exhibit 45 at 108.
61

residence?” 300 Floyd answered: “All I remember was that there was a living room and a
bedroom.” 301
Finally, John Rue Clegg’s recent statement casts further doubt on both Floyd’s guilt
and Detective Dillman’s investigative practices. As noted above, Clegg’s recent affidavit
alleges that, in contrast to Detective Dillman’s representations both in the police report
and at trial, Clegg never stated that Hines “frequently had sexual relations with both black
and white males.” 302 Rather, Clegg, according to his affidavit, told Detective Dillman that
“Bill’s taste was for black men.” 303 Clegg, as noted above, is a friend of Hines’s and an
apparent stranger to Floyd, and has lived in Germany since 1970. He appears to have
little reason to concoct a story on Floyd’s behalf, and his credible account therefore
provides an additional reason to doubt Detective Dillman’s reliability. Furthermore,
Clegg’s statement regarding Hines’s preferences suggests that an African-American man,
rather than Floyd, killed Hines. This inference is supported by the striking similarities
between the Robinson and Hines murders and the overwhelming evidence that Robinson
was killed by an African-American man. 304 It is further strengthened by the forensic

300

Floyd Exhibit 8 at 4.

301

Id.

302

Floyd Exhibit 3 at 6.

303

Floyd Exhbit 21 at 2.

Indeed, State actors have consistently taken the position that Robinson and
Hines were killed by the same person. This assumption animated the early
investigation. See, e.g., Floyd Exhibit 3 at 5 (“It became evident to the investigating
detectives . . . that the same person might possibly be responsible for the deaths of both
victims.”); Floyd Exhibit 11 at 4 (“As soon as I walked into [the Robinson] crime scene I
knew again from intuition and working these cases year in and year out I knew that we
had the same perpetrator.”). Detective Dillman appears to have maintained this belief.
Throughout his 1998 interview with Jupiter Entertainment, Detective Dillman noted
304

62

evidence at the Hines scene: African-American pubic hair recovered from Hines’s bed 305
and fingerprints that matched neither Floyd nor Hines on the whiskey bottle in Hines’s
kitchen. 306
4.

Floyd’s Alleged Statement to Steven Edwards is similarly
unreliable.

As noted above, the only evidence corroborating Floyd’s confession to Detective
Dillman is his alleged admission to Steven Edwards. Floyd allegedly told Edwards, owner
of the Mississippi River Bottom Bar, that he had killed a person. 307 When Edwards
suggested Hines’ name, Floyd responded “Yeah, on Governor Nichol[l]s.” 308
Like the confession evidence, the persuasiveness of Floyd’s alleged boast to
Edwards is affected by the presence of similar evidence in the Robinson case. In that case,
Reed, an acquaintance of Floyd’s, testified that Floyd once threatened to “take care of
[Reed] like he did the one at the Fairmont.” 309 Floyd was apparently referring to

that Floyd’s “rage” and poor judgment “cost two people their lives.” Floyd Exhibit 11 at
9, 12. Detective Dillman also commented, “there’s no doubt in my mind that he was
responsible for both, but since we convicted him of the first case you know he is given
life[. H]e just would have been given double life.” Id. at 11; see also Floyd Exhibit 38 at
253 (“[T]he Rodney Robinson case gathers dust in Homicide’s bottom drawer,
technically an ‘open’ investigation, but no officer who worked it believes the matter
unsolved.”). When Floyd appeared before the Louisiana Pardon Board in 1995, thenDistrict Attorney Harry Connick wrote a letter “strongly urg[ing] that [Floyd’s] request
for clemency be denied” because Floyd “murdered Rodney Robinson” and “took the life
of two innocent victims in cold blood.” Floyd Exhibit 12.
305

Floyd Exhibit 40.

306

Floyd Exhibit 13 at 3.

307

Floyd Exhibit 45 at 55-56

308

Id.

309

Id. at 75
63

Robinson, who was killed at the Fairmont Hotel. If a reasonable juror concluded that
Floyd did not kill Robinson, the juror would be forced to conclude that Floyd’s statement
to Reed was also false—either Floyd was falsely boasting or Reed’s retelling of the out of
court statement is unreliable. Just as with the two confessions, the similarity of this boast
to the Edwards threat links the two statements’ persuasive weight: if Floyd falsely boasted
of killing Robinson, it is more likely that his claim to killing Hines was fabricated as well.
The doubt engendered by the evidence in the Robinson case is compounded by
Edwards’s inconsistent testimony regarding Floyd’s alleged statement. At trial Edwards
insisted that after Floyd said he had killed someone, 1) Edwards suggested Hines’s name,
and Floyd agreed; 310 and 2) Floyd offered further detail, by confirming that the murder
occurred on Governor Nicholls Street. 311 At a pre-trial evidentiary hearing conducted
several months earlier, however, Edwards’s testimony differed. According to this earlier
account, Floyd, after being told he was barred from entering Edwards’s bar, said:
“Well, don’t get me ruffled.” [Floyd] said something to the point, “I already
wasted one guy,” or something, and I read it in the paper. I said, “Are you
talking about the guy around the corner?” And he said, “Yeah.” And that
was the extent of our conversation. I said, “You know you cannot go into
the bar. You are barred. You have to stay out of it.” 312
Edwards was then asked if anyone “ever call[ed] the names of any individuals during that
conversation.” 313 Edwards answered: “If we did, I might have mentioned Bill, and then

310

Id. at 55-56, 71-72.

311

Id. at 58.

312

Floyd Exhibit 75 at 44.

313

Id.
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later when I read in the paper it was Bill Hines. Bill had been into my bar once or twice.” 314
Edwards further testified that he “didn’t even think about” Floyd’s statements because
“[t]hat happens in the barroom business a lot . . . . People come in and say things, ‘I beat
the piss out of this guy down the street.’ I brush it off. I just let it go . . . . [S]ometimes
it’s true and sometimes it’s not.” 315
Finally, Dr. DeClue’s findings provide further insight into the credibility of Floyd’s
alleged boast. Edwards consistently states that he, rather than Floyd, raised Hines—or
“the guy around the corner”—as the person that Floyd “wasted.”

Given Floyd’s

suggestibility and overall mental acuity, that Edwards rather than Floyd allegedly
suggested Hines’ name takes on additional significance.
D.

No Reasonable, Properly Instructed Juror Would Likely Vote to
Convict Floyd of Murdering Hines Based on Only His Confession
and Alleged Boast

Viewing all of the evidence here—both new and old, exculpatory and inculpatory—
the State’s case against Floyd for the murder of Hines is tenuous. The Court finds, as an
initial matter, that any reasonable juror presented with the Robinson murder evidence
would conclude that it is highly unlikely that Floyd killed Robinson. The Court further
finds that this conclusion would inform the juror’s evaluation of the State’s only evidence
in the Hines murder—the confession and statement to Steven Edwards. A confession is
generally powerful evidence, and juries may be persuaded to convict on the basis of only
a confession. See Murray v. Earle, 405 F.3d 278, 295 (5th Cir. 2005) (quoting Drizin &
Leo, supra, at 923). But, even discounting the shadow cast by the similar Robinson

314

Id.

315

Id. at 45-46.
65

confession, the specific confession at issue in this case is unreliable for the many reasons
outlined above. Floyd’s alleged drunken boasting provides similarly thin evidence of
Floyd’s guilt. When further discredited by their association with the Robinson evidence,
Floyd’s flawed confession and dubious boast, standing alone against significant
exculpatory evidence, are insufficient to expel all reasonable doubt from the mind of a
reasonable juror.
In his recommendation, the Magistrate Judge correctly articulated the relevant
legal standard and ably applied it. Nonetheless, this Court disagrees with two of the
Magistrate Judge’s core findings.

First, as noted above, the Court finds that the

Magistrate Judge’s “different time” theory cannot explain the overwhelming evidence that
an African-American man, rather than Floyd, killed Robinson. Second, and relatedly, the
Magistrate Judge’s recommendation appears to exaggerate the persuasiveness of Floyd’s
inculpatory statements in the mind of a reasonable juror. Although the Magistrate Judge
is no doubt correct that confessions are “compelling evidence of guilt, perhaps especially
in the mind of lay jurors,” 316 this Court finds that Floyd’s confession to the Hines murder—
as discredited by its association with the false Robinson confession, Floyd’s vulnerability,
and evidence of Detective Dillman’s improper interrogation techniques—is an especially
unreliable confession. Although lay jurors may find the average confession compelling,
the Court must make a “probabilistic determination” concerning a hypothetical juror’s
opinion of the specific statements at issue in this case. House, 547 U.S. at 538 (quoting
Schlup, 513 U.S. at 299). For the reasons offered above, the Court finds that such a juror
would not find Floyd’s confession or alleged boast to be compelling evidence of guilt.

316

R. Doc. 67 at 12.
66

Accordingly, the Court concludes that any reasonable, properly instructed juror,
evaluating this case with the requisite caution and care, would reasonably doubt Floyd’s
guilt of the murder of William Hines. Proof beyond a reasonable doubt is proof that leaves
a juror “firmly convinced of the defendant’s guilt.” Federal Judicial Center, Pattern
Criminal Jury Instructions (1987); United States v. Williams, 20 F.3d 125, 129 n.2 (5th
Cir. 1994) (approving the FJC instruction on reasonable doubt). It is unlikely that any
reasonable juror would find that the State’s murder case rises to this demanding standard.
Floyd has therefore preponderantly established that no reasonable juror, after carefully
and impartially considering all of the evidence, would find him guilty beyond a reasonable
doubt.

V.

CONCLUSION
Because Floyd has satisfied the standard necessary to overcome the untimeliness

of his habeas petition, the Court remands Floyd’s petition to the Magistrate Judge for an
evaluation on the merits.

14th
New Orleans, Louisiana, this ____ day of September, 2016.

____________________________________
SARAH S. VANCE
UNITED STATES DISTRICT JUDGE

67