Reed v. Cain
ORDER AND REASONS ADOPTING REPORT AND RECOMMENDATIONS 17 , and the petition for issuance of a writ of habeas corpus is Denied and Dismissed with Prejudice. Signed by Judge Ivan L.R. Lemelle.(ijg)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
FRANCIS EUGENE REED
BURL CAIN, WARDEN
ORDER AND REASONS
Before the Court is Francis Eugene Reed, Jr.’s petition
pursuant to 28 U.S.C. § 2254 for writ of habeas corpus. (Rec.
Doc. No. 1).
The State opposes the petition. (Rec. Doc. No. 12).
Reed filed a traversal to the State’s answer and the petition
was referred to Magistrate Judge Shushan, (Rec. Doc. No. 3) who
issued a Magistrate’s Report and Recommendation on June 2, 2014,
prejudice. (Rec. Doc. No. 17). Reed timely filed objections to
the Magistrate’s Report and Recommendation on June 10, 2014.
(Rec. Doc. No. 18).
For the reasons articulated below, IT IS ORDERED that the
petition for issuance of a writ of habeas corpus is DENIED and
DISMISSED WITH PREJUDICE.1
Factual and Procedural Background:
We are grateful for the work on this case by Lauren Michel, a Tulane
Law School extern with our Chambers.
This petition arises out of the incarceration of Francis
Eugene Reed, Jr. at the Louisiana State Penitentiary in Angola,
Recommendation reflects that Reed was convicted of two counts of
aggravated rape under Louisiana law, and was sentenced to two
concurrent terms of life imprisonment without the benefit of
probation, parole, or suspension of sentence.
amended the sentence to be served at hard labor. 3 Reed did not
seek review of the judgment by the Louisiana Supreme Court.4
Reed next filed an application for post-conviction relief
in state district court, which was denied. 5 He then filed writ
applications to the Louisiana First Circuit Court of Appeal and
the Louisiana Supreme Court which were subsequently dismissed. 6
application claiming that he received ineffective assistance of
counsel both at the trial and appellate levels. (Rec. Doc. No.
Rec. Doc. No. 17. (citing State Rec., Vol. IV of VI, trial transcript,
pp. 935-36; State Rec., Vol. I of VI, minute entry dated September 11,
2009; State Rec., Vol. I of VI, jury verdict form; State Rec., Vol. IV
of VI, transcript of October 8, 2009; State Rec., Vol. I of VI, minute
entry dated October 8, 2009.)
Rec. Doc. No. 17 (citing State v. Reed, No. 2010 KA 0571, 2010 WL
4272897 (La. App. 1st Cir. Oct. 29, 2010); State Rec., Vol. V of VI.
Rec. Doc. No. 17 (citing Rec. Doc. 1-1, p. 4.)
State v. Reed, No. 2012-KP-1944 (9/11/2009) 110 So. 3d 132; State
Rec., Vol. V of VI.
Reed alleges various claims of ineffective assistance of
counsel pertaining to his conviction for raping and sexually
K.P.2.) when they lived in Covington, Louisiana. The initial
investigation in the matter was launched after K.P.2. disclosed
alleged abuse to a friend. (Rec. Doc. No. 17). In the course of
the investigation, both girls were interviewed several times by
various individuals, including Luanne Mayfield of St. Tammany
Smith of the St. Tammany Parish Sheriff’s Office, and Dr. Monica
Weiner of Children’s Hospital. Id. Though at times K.P.1. and
descriptions of the abuse that K.P.1. and K.P.2. provided in
provided at trial. Id.
Prior to trial, Dr. Monica Weiner examined K.P.1. and K.P.2.
for physical evidence of abuse approximately one month after the
initial allegations. Id. The results of the examinations were
normal and showed no signs of abuse. Id. Dr. Weiner was not
available to testify at trial. Id. Dr. Adriana Jamis testified
on behalf of Dr. Weiner that, given the time between the abuse
and the examinations, a normal result was expected. Id. Defense
counsel voiced no objection to Dr. Jamis’s testimony (in lieu of
The Petitioner disputes the veracity of the contentions of
that K.P.2. had accused her stepbrother of abuse and K.P.1. had
lied about one incident of abuse that would have impeached the
testimony of the victims if it had been entered into evidence at
trial. Id. Petitioner’s trial attorney stipulated to the fact
consistent with the testimony that K.P.1. and K.P.2. provided at
preparing him for trial, but was never able to properly prepare
him for his testimony. Id. In support of his claim, Petitioner’s
trial attorney submitted an affidavit stating in pertinent part
7. I had not had the opportunity to brief Mr.
Reed on the specifics of direct- and crossexamination, to practice questioning him, or
to prepare him for the rigors of crossexamination.
8. I anticipated preparing Mr. Reed for his
testimony after court adjourned on the
evening of September 10, 2009.
9. However, as a result of the [trial]
court’s ruling, I was unable to prepare Mr.
Reed for his testimony and he commenced his
testimony on the evening of September 10,
2009 without the benefit or assistance of
(Rec. Doc. No. 1-2, pp.40-41). Petitioner alleges that due to
deceitful to jurors, which contributed to his conviction. (Rec.
Doc. No. 16).
During trial, prosecutors called K.P.2. to the stand. At
the beginning of her testimony, she was asked to demonstrate her
understanding of the distinction between truth and lies. The
prosecutors further asked her the customary questions about her
understanding of the oath she swore before testifying and if she
questioning, K.P.2. was asked about her belief in God.
Also at trial, the judge instructed the jury on six lesser
responsive offenses: attempted aggravated rape, forcible rape,
attempted simple rape. (Rec. Doc. No. 17). Petitioner disputes
the omission of four lesser responsive verdicts: molestation of
behavior with a juvenile, and attempted indecent behavior with a
juvenile. (Rec. Doc. No. 17).
Law and Analysis:
I. Standard of Review
Under the Antiterrorism and Effective Death Penalty Act of
1996 (AEDPA), which controls this Court’s review of a 28 U.S.C.
state court remedies. Hughes v. Johnson, 191 F.3d 607, 612 (5th
Cir. 1999). Further, it must be determined whether “procedural
default” applies to the claim. Nobles v. Johnson, 127 F.3d 409,
419-420 (5th Cir. 1997) (citing 28 U.S.C. § 2254(b), (c)). As
conceded by the State, Reed’s motion was timely filed, he has
exhausted all available state court remedies, and is not in
procedural default. (Rec. Doc. No. 17).
On the merits, the AEDPA standard of review is governed by
28 U.S.C. § 2254(d) and the Supreme Court’s decision in Williams
v. Taylor, 529 U.S. 362 (2000). Different standards exist for
questions of fact, questions of law, and mixed questions of law
A state court’s determination of a mixed question of law
and fact is reviewed under §2254(d)(1) and receives deference,
unless the state court’s decision is “contrary to or involves an
unreasonable application of clearly established federal law” as
determined by the Supreme Court. Hill v. Johnson, 210 F.3d 481,
485 (5th Cir. 2000).
A state court’s decision is “contrary to” federal law if:
(1) the state court arrives at a conclusion opposite to that
reached by the Supreme Court on a question of law or (2) the
state court decides a case differently than the Supreme Court
has on a materially indistinguishable set of facts. Williams,
529 U.S. at 405-06, 412-13. A state court’s decision involves an
unreasonably to the facts or (2) extends or fails to extend a
clearly established legal principle to a new context in a way
that is objectively unreasonable. Williams, 529 U.S. at 406-08.
When analyzing an unreasonable application of law to fact in
this context, the Court need not determine whether the state
court’s reasoning was sound, rather “the only question for a
federal habeas court is whether the state court’s determination
is objectively unreasonable.” Neal v. Puckett, 286 F.3d 230, 246
(5th Cir. 2002). It is the petitioner’s burden to show that the
state court applied the law to the facts of his case in an
“objectively unreasonable manner.” Price v. Vincent, 538 U.S.
634, 641 (2003) (citing Woodford v. Visciotti, 537 U.S. 19, 2425 (2002)).
II. Review of Magistrate’s Report and Recommendation
The Magistrate’s Report and Recommendation recommends that
prejudice. (Rec. Doc. No. 17). A district court reviewing a
sections of the report not objected to by either party, as long
as those sections are not clearly erroneous. Fed. R. Civ. P.
72(b); Gilkers v. Cain, 2006 WL 1985969 (E.D. La. May 30, 2006).
Here, Reed objects to the Magistrate’s Report and Recommendation
concerning his claims of ineffective assistance of both trial
and appellate counsel. (Rec. Doc. No. 18). Because objections
Recommendation, the Court undertakes an independent review of
the facts and considers the matter de novo. Fed. R. Civ. P.
A. Ineffective Assistance of Counsel
petitioner’s ineffective assistance of counsel claims meritless
under the Strickland v. Washington standards and related state
Rec. Doc. No. 17 (citing 466 U.S. 668, 697 (1984)). The
Court denied relief without further comment. (Rec. Doc. No. 9).
The issue of ineffective assistance of counsel is a mixed
question of law and fact. Clark v. Thaler, 673 F.3d 410, 416
(5th Cir. 2012); Woodfox v. Cain, 609 F.3d 774, 789 (5th Cir.
2010). Accordingly, the question for this Court is whether the
unreasonable application of, federal law. The Supreme Court has
ineffective assistance of counsel. Strickland, 466 U.S. at 697.
These require the petitioner to prove: (1) deficient performance
and (2) prejudice therefrom. Id. The petitioner has the burden
of proving this deficiency by a preponderance of the evidence.
ineffective assistance of counsel claims, this Court need not
address both prongs of the Strickland standard, but may decide
based solely on a claim’s failure to meet either prong of the
test. Kimbler, 167 F.3d 889, 893 (5th Cir. 1999).
constitutional minimum guaranteed by the Sixth Amendment. Little
v. Johnson, 162 F.3d 855, 860 (5th Cir. 1998).
slightly depending on whether a petitioner is challenging the
prejudice in the trial counsel context, petitioner must show
that there is a reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would have
been different. Strickland, 466 U.S. at 694. Furthermore, the
prejudice. Day v. Quarterman, 566 F.3d 527, 536 (5th Cir. 2009).
counsel, with no showing of effect on the proceedings, do not
habeas relief. Miller v. Johnson, 200 F.3d 274, 282 (5th Cir.
“doubly deferential.” Cullen v. Pinholster, 131 S. Ct. 1388,
1403 (2011). This court must apply the “strong presumption” that
690; Moore v. Johnson, 194 F.3d 586, 591 (5th Cir. 1999).
By contrast, in the appellate context, in order to show
probability that he would have prevailed on appeal but for his
F.3d 204, 207 (5th Cir. 2001). See also Smith v. Robbins, 528
establishing a reasonable probability that the appellate court
would have vacated or reversed the trial court judgment based on
the alleged error. Briseno, 274 F.3d at 210.
district court, Louisiana First Circuit Court of Appeal, and the
Louisiana Supreme Court.7 Each claim is discussed in turn:
Trial counsel was ineffective for stipulating
factual consistency of disputed, material evidence
State v. Reed, No. 2012-KP-1944 (9/11/2009) 110 So.3d 132; State Rec.,
Vol. V of VI.
The U.S. Supreme Court in Strickland, explained:
Judicial scrutiny of counsel's performance
must be highly deferential. It is all too
tempting for a defendant to second-guess
counsel's assistance after conviction or
adverse sentence, and it is all too easy for
a court, examining counsel's defense after
it has proved unsuccessful, to conclude that
a particular act or omission of counsel was
unreasonable. A fair assessment of attorney
performance requires that every effort be
made to eliminate the distorting effects of
hindsight, to reconstruct the circumstances
of counsel's challenged conduct, and to
perspective at the time. Because of the
evaluation, a court must indulge a strong
presumption that counsel's conduct falls
defendant must overcome the presumption that,
under the circumstances, the challenged
action “might be considered sound trial
466 U.S. 668, 689 (1984) (internal citation omitted). Petitioner
interviews played for the jury during trial and stipulating that
the victims’ interview testimony was consistent with their trial
testimony rose to the level of ineffective assistance of counsel.
Magistrate’s Report and Recommendation found that this decision
fell within the ambit of trial strategy. (Rec. Doc. No. 17). It
is likely, based on the reading of the record at hand that the
trial strategy was to prevent those CAC interviews from being
shown because of their potential harm to petitioner’s defense at
trial. (Rec. Doc. No. 17). This Court is unable to find that
this strategic decision by trial counsel was unreasonable.
review of the six discrepancies identified by Petitioner, and as
is stated in the Magistrate’s Report and Recommendation, only
the testimony of the victim’s friend Stephi King, who reported
that she believed a sexual encounter between the Petitioner and
the victims occurred, and K.P.2.’s alleged accusation against
another abuser, were positive for the defense. (Rec. Doc. No.
because she was not questioned about them at trial.
These two discrepancies do not allow this Court to find
lacking in justification that there was an error well understood
fair-minded disagreement.” Harrington v. Richter, 131 S. Ct. 770,
786-87(2011). Therefore, this Court must reject this claim based
on the AEDPA’s stringent deferential standards.
Trial counsel was
petitioner to testify
The United States Fifth Circuit Court of Appeals stated in
Crane v. Johnson
that a petitioner must prove “a reasonable
probability” that the trial would have resulted in a different
outcome if he had been prepared. 178 F.3d 309, 312 (5th Cir.
1999). Petitioner claims his trial counsel failed to prepare him
for testimony at trial. This assertion is consistent with the
that is discussed above, but generally states that the trial
counsel waited until September 10, 2009, during the trial, to
prepare the Petitioner for his testimony, and due to a judicial
ruling, was not able to prepare the Petitioner for his testimony.
This alone is an insufficient basis for overturning the state
court’s decision. Petitioner must prove that prejudice actually
resulted from his lack of preparation. Strickland. 466 U.S. at
differed had he been prepared differently to testify at trial,
and nothing in the record suggests otherwise, particularly in
view of other evidence of guilt beyond a reasonable doubt. We
will not, nor can we, reweigh that evidence to substitute our
judgment over that of the trial jury. Accordingly, this Court
will defer to the state court’s decision and reject this claim.
Trial counsel was ineffective for failing to object to
improper and truncated jury instructions which omitted lesserincluded offenses
ineffective for failing to object to improper and truncated jury
instructions which omitted lesser-included offenses.
A decision to forgo a charge on lesser
included offenses is strategic in nature.
Strategic choices made after reasonable
investigation will seldom if ever be found
wanting, because we are reluctant to secondguess matters of trial strategy simply
because the chosen strategy has failed.
Lake v. Portuondo, 14 Fed.App’x 126, 128 (2d Cir. 2001)(internal
citations and quotation marks omitted). Also, “counsel’s failure
to push for inclusion of a special charge on a lesser offense
may result from an equally valid strategic choice to avoid a
possible compromise verdict, opting instead to try to obtain a
hung jury or an outright acquittal.” Parker v. Cain, 445 F.Supp.
2d 685, 709 (E.D. La. Aug. 9, 2006). At trial, there was no
decision to exclude the lesser offenses was within the ambit of
strategic choice by counsel. Accordingly, this Court will defer
4. Trial counsel was ineffective for failing to object to
hearsay testimony of Dr. Adriana Jamis who testified
concerning a report and notes generated by another
Petitioner’s fourth claim is that his trial counsel was
ineffective for failing to object to the hearsay testimony of
Dr. Adriana Jamis who testified concerning a report and notes
unavailable for cross-examination. Failure to object on its own
performance. Rios-Delgado v. United States, 117 F. Supp. 2d 581,
589 (W.D. Tex. Oct. 11, 2000); accord Burnett v. Collins, 982
F.2d 922, 930 (5th Cir. 1993); Forman v. Cain, Civ. Action No.
Further, as stated above, Strickland calls for deference to the
state court’s determinations and there is a strong presumption
to find for reasonable assistance. Strickland, 466 U.S. at 697.
The record reflects that Dr. Weiner was not available to
testify at trial. Without the presentation of expert medical
testimony, it is unlikely that the jury would have been informed
Petitioner. As a result, the fact that Dr. Jamis testified in
defense. Further, without Dr. Jamis’ testimony, it is unlikely
the jury would have learned of K.P.1.’s statements to Dr. Weiner
that she had been sexually abused by individuals other than
Petitioner—information that was clearly favorable to the defense.
Thus, this claim fails because of the trial counsel’s failure to
object to Dr. Jamis’ testimony may reasonably be characterized
as having resulted favorably for Petitioner. At the very least,
Petitioner has failed to establish prejudice resulting therefrom.
5. Trial counsel was ineffective for failing to object to the
use of religion to bolster the accusers’ credibility and
the prosecutor’s improper argument of “facts not in
The Magistrate’s Report and Recommendation states that the
ascertain whether the minor understood the difference between
truth and lies. (Rec. Doc. No. 17). Review of the record reveals
that this line of questioning was pursued to ensure that K.P.2.
understood the importance of the oath administered to her and
her obligation to testify truthfully, as opposed to a discussion
of religion specifically. There is no reason to suggest that
Petitioner. The failure to raise a meritless objection is not
ground for a proper claim of ineffective assistance of counsel.
Clark v. Collins, 19 F.3d 959, 966 (5th Cir. 1994). Accordingly,
this Court rejects Petitioner’s claim.
6. Appellate counsel was ineffective for failing to adequately
review, raise, and argue the errors of the trial court and
to exhaust direct review before the Louisiana Supreme
Appellate counsel “is not obligated to urge on appeal every
requested by defendant).” West v. Johnson, 92 F.3d 1385, 1396
(5th Cir. 1996). It is a generally accepted practice for counsel
not to assert every conceivable claim on appeal, but to focus
instead on the strongest challenges to the lower court’s ruling.
Jones v. Barnes, 463 U.S. 745, 746 (1983). The restraint on
because “a brief that raises every colorable issue runs the risk
of burying good arguments... in a verbal mound made up of strong
and weak contentions.” Id. at 753. The test for determining if
appellate counsel failed to raise relevant issues is whether the
issues were “clearly stronger” than what was asserted on appeal.
See e.g. Diaz v. Quarterman, 228 Fed. App’x 417, 427 (5th Cir.
asserted the following claims: (1) the trial court erred in
omitting responsive verdicts, (2) the prosecutor impermissibly
attempted to bolster K.P.2.’s credibility by asking about her
belief in God, and (3) trial counsel was ineffective for failing
to object to those errors. (Rec. Doc. No. 17). Claims (1) and
(2) were precluded because they were not objected to at trial
and thus were not preserved for appeal and could not be raised
by appellate counsel. La. Code Crim. Proc. art 841. In regard to
Claim (3), even if appellate counsel had raised the issue that
trial counsel should have objected to the first two issues, it
is not “clearly stronger” that either of those objections would
have outweighed the other issues raised on appeal. See e.g. Diaz
228 Fed. App’x 417 at 427.
It is not clear that the responsive
verdicts would have changed the outcome for petitioner. It is on
these grounds that this claim fails.
Accordingly, and for the reasons pronounced above, IT IS
ORDERED that the Magistrate’s Report and Recommendation is
ADOPTED and that Francis Eugene Reed’s petition for writ of
habeas corpus is DENIED and DISMISSED WITH PREJUDICE.
New Orleans, Louisiana, this 3rd day of March 2015.
UNITED STATES DISTRICT JUDGE
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