Phillips v. Cain et al

Filing 26

REPORT AND RECOMMENDATIONS re 3 Petition for Writ of Habeas Corpus (28:2254) filed by Henry Phillips. It is RECOMMENDED that the petition be DISMISSED WITH PREJUDICE. Objections to R&R due by 9/22/2014. Signed by Magistrate Judge Sally Shushan.(gec)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA

HENRY PHILLIPS

CIVIL ACTION

versus

NO. 13-5868

N. BURL CAIN, WARDEN

SECTION: "J" (1)

REPORT AND RECOMMENDATION
This matter was referred to this United States Magistrate Judge for the purpose of
conducting a hearing, including an evidentiary hearing, if necessary, and submission of proposed
findings of fact and recommendations for disposition pursuant to 28 U.S.C. § 636(b)(1)(B) and (C)
and, as applicable, Rule 8(b) of the Rules Governing Section 2254 Cases in the United States
District Courts. Upon review of the record, the Court has determined that this matter can be
disposed of without an evidentiary hearing. See 28 U.S.C. § 2254(e)(2). Therefore, for all of the
following reasons, IT IS RECOMMENDED that the petition be DISMISSED WITH
PREJUDICE.
Petitioner, Henry Phillips, is a state prisoner incarcerated at the Louisiana State
Penitentiary, Angola, Louisiana. On October 19, 2009, he was convicted of purse snatching under

Louisiana law.1 On November 9, 2009, he was sentenced to a term of ten years imprisonment.2 On
December 2, 2009, he was found to be a third offender,3 and he was then resentenced as such to a
term of life imprisonment on January 20, 2010.4 The Louisiana Fourth Circuit Court of Appeal
affirmed his conviction and sentence on February 17, 2011,5 and the Louisiana Supreme Court
denied his related writ application on October 7, 2011.6
On or about October 29, 2012, petitioner filed an application for post-conviction
relief with the state district court.7 That application was denied on December 11, 2012.8 His related

1

State Rec., Vol. III of IV, transcript of October 19, 2009, p. 44; State Rec., Vol. I of IV, minute
entry dated October 19, 2009; State Rec., Vol. I of IV, jury verdict form.
2

State Rec., Vol. III of IV, transcript of November 9, 2009; State Rec., Vol. I of IV, minute entry
dated November 9, 2009.
3

State Rec., Vol. III of IV, transcript of December 2, 2009; State Rec., Vol. I of IV, minute entry
dated December 2, 2009.
4

State Rec., Vol. III of IV, transcript of January 20, 2010; State Rec., Vol. I of IV, minute entry
dated January 20, 2010.
5

State v. Phillips, 61 So.3d 130 (La. App. 4th Cir. 2011) (No. 2010-KA-0582); State Rec., Vol.
III of IV.
6

State v. Phillips, 71 So.3d 311 (La. 2011) (No. 2011-KO-0582); State Rec., Vol. I of IV.

7

State Rec., Vol. I of IV.

8

State Rec., Vol. IV of IV, Judgment dated December 11, 2012.
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writ applications were then likewise denied by the Louisiana Fourth Circuit Court of Appeal on
January 30, 2013,9 and by the Louisiana Supreme Court on July 31, 2013.10
On or about September 9, 2013, petitioner filed the instant federal application seeking
habeas corpus relief.11 The state concedes that the application is timely filed.12
I. Standards of Review
The Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA")
comprehensively overhauled federal habeas corpus legislation, including 28 U.S.C. § 2254.
Amended subsections 2254(d)(1) and (2) contain revised standards of review for pure questions of
fact, pure questions of law, and mixed questions of both. The amendments "modified a federal
habeas court's role in reviewing state prisoner applications in order to prevent federal habeas 'retrials'
and to ensure that state-court convictions are given effect to the extent possible under law." Bell v.
Cone, 535 U.S. 685, 693 (2002).
As to pure questions of fact, factual findings are presumed to be correct and a federal
court will give deference to the state court's decision unless it "was based on an unreasonable
determination of the facts in light of the evidence presented in the State court proceeding." 28

9

State v. Phillips, No. 2013-K-0072 (La. App. 4th Cir. Jan. 30, 2013); State Rec., Vol. IV of IV.

10

State ex rel. Phillips v. State, 118 So.3d 1119 (La. 2013) (No. 2013-KH-0458); State Rec.,
Vol. IV of IV.
11

Rec. Doc. 3. Petitioner has also filed motions requesting that these proceedings be stayed
while he exhausts additional claims in the state court courts. In an Order and Reasons separately
issued this date, the undersigned has denied those motions.
12

Rec. Doc. 17.
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U.S.C. § 2254(d)(2); see also 28 U.S.C. § 2254(e)(1) ("In a proceeding instituted by an application
for a writ of habeas corpus by a person in custody pursuant to the judgment of a State court, a
determination of a factual issue made by a State court shall be presumed to be correct. The applicant
shall have the burden of rebutting the presumption of correctness by clear and convincing
evidence.").
As to pure questions of law and mixed questions of law and fact, a federal court must
defer to the state court's decision on the merits of such a claim unless that decision "was contrary
to, or involved an unreasonable application of, clearly established Federal law, as determined by the
Supreme Court of the United States." 28 U.S.C. § 2254(d)(1). Courts have held that the "'contrary
to' and 'unreasonable application' clauses [of § 2254(d)(1)] have independent meaning." Bell, 535
U.S. at 694.
Regarding the "contrary to" clause, the United States Fifth Circuit Court of Appeals
has explained:
A state court decision is contrary to clearly established precedent if
the state court applies a rule that contradicts the governing law set
forth in the [United States] Supreme Court's cases. A state-court
decision will also be contrary to clearly established precedent if the
state court confronts a set of facts that are materially
indistinguishable from a decision of the [United States] Supreme
Court and nevertheless arrives at a result different from [United
States] Supreme Court precedent.
Wooten v. Thaler, 598 F.3d 215, 218 (5th Cir. 2010) (internal quotation marks, ellipses, brackets,
and footnotes omitted).
Regarding the "unreasonable application" clause, the United States Supreme Court
has held: "[A] state-court decision is an unreasonable application of our clearly established
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precedent if it correctly identifies the governing legal rule but applies that rule unreasonably to the
facts of a particular prisoner's case." White v. Woodall, 134 S. Ct. 1697, 1706 (2014). However,
the Supreme Court cautioned:
Section 2254(d)(1) provides a remedy for instances in which a state
court unreasonably applies this Court's precedent; it does not require
state courts to extend that precedent or license federal courts to treat
the failure to do so as error. Thus, if a habeas court must extend a
rationale before it can apply to the facts at hand, then by definition
the rationale was not clearly established at the time of the state-court
decision. AEDPA's carefully constructed framework would be
undermined if habeas courts introduced rules not clearly established
under the guise of extensions to existing law.
Id. (citations and quotation marks omitted). Therefore, when the Supreme Court's "cases give no
clear answer to the question presented, let alone one in [the petitioner's] favor, it cannot be said that
the state court unreasonably applied clearly established Federal law." Wright v. Van Patten, 552
U.S. 120, 126 (2008) (quotation marks and brackets omitted). The Supreme Court has also
expressly cautioned that "an unreasonable application is different from an incorrect one." Bell, 535
U.S. at 694. Accordingly, a state court's merely incorrect application of Supreme Court precedent
simply does not warrant habeas relief. Puckett v. Epps, 641 F.3d 657, 663 (5th Cir. 2011)
("Importantly, 'unreasonable' is not the same as 'erroneous' or 'incorrect'; an incorrect application of
the law by a state court will nonetheless be affirmed if it is not simultaneously unreasonable.").
While the AEDPA standards of review are strict and narrow, they are purposely so.
As the United States Supreme Court has held:
[E]ven a strong case for relief does not mean the state court's contrary
conclusion was unreasonable.
If this standard is difficult to meet, that is because it was
meant to be. As amended by AEDPA, § 2254(d) stops short of
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imposing a complete bar on federal court relitigation of claims
already rejected in state proceedings. It preserves authority to issue
the writ in cases where there is no possibility fairminded jurists could
disagree that the state court's decision conflicts with this Court's
precedents. It goes no farther. Section 2254(d) reflects the view that
habeas corpus is a guard against extreme malfunctions in the state
criminal justice systems, not a substitute for ordinary error
correction through appeal. As a condition for obtaining habeas
corpus from a federal court, a state prisoner must show that the state
court's ruling on the claim being presented in federal court was so
lacking in justification that there was an error well understood and
comprehended in existing law beyond any possibility for fairminded
disagreement.
Harrington v. Richter, 131 S. Ct. 770, 786-87 (2011) (citations omitted; emphasis added); see also
Renico v. Lett, 559 U.S. 766, 779 (2010) ("AEDPA prevents defendants – and federal courts – from
using federal habeas corpus review as a vehicle to second-guess the reasonable decisions of state
courts.").
The Supreme Court has expressly warned that although "some federal judges find [28
U.S.C. § 2254(d)] too confining," it is nevertheless clear that "all federal judges must obey" the law
and apply the strictly deferential standards of review mandated therein. White v. Woodall, 134 S.
Ct. 1697, 1701 (2014).
II. Facts
On direct appeal, the Louisiana Fourth Circuit Court of Appeal summarized the facts
of this case as follows:
The victims, Tracie and Jason Socha, visitors from San Diego,
California, were in New Orleans on March 21, 2009 to attend a
friend's wedding. That morning, after they finished breakfast, they
stopped at a McDonalds located on St. Charles Avenue to purchase
a milkshake. Mr. Socha gave his wallet to his wife. She entered
McDonalds while he waited outside. After she made her order and
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paid the cashier, Mrs. Socha placed the wallet on the counter while
she waited for her change. She may have had a finger on the wallet.
At the very least, her hand was next to the wallet. A man then came
up from behind her and grabbed the wallet. Mrs. Socha ran out of
McDonalds after the man and called to her husband. The Sochas
caught up with him when he stopped next to a bright blue bicycle.
Mr. and Mrs. Socha attempted to talk the man into taking only the
cash from the wallet and giving the wallet back to them. At first, the
man declined. He also moved his hand towards the waist of his pants
and asked them whether they wanted to be shot. Mr. Socha
continued to talk to the man despite the threat. After a minute or two,
the man took a twenty dollar bill that was clipped to the outside of the
wallet and threw the wallet to the ground. The man then got on his
bicycle and left. Employees of McDonalds followed the man on his
bicycle to a house located a block behind the McDonalds on
Carondelet Street.
Sergeant Young responded to the call and met with Mr. and
Mrs. Socha in the parking lot of McDonalds. The sergeant then took
them to the house on Carondelet Street where they could see the blue
bicycle parked out front. A door on one of the apartments at the
house was partially opened. Sergeant Young called for backup.
Once Sergeant Philibert arrived, the two officers entered the opened
door and encountered two males. One fit the description of the
perpetrator who had been described as an older black male wearing
a blue and white shirt. The man was escorted from the house and
positively identified by Tracie and Jason Socha as the perpetrator.
The man was arrested. A search incident to his arrest revealed a
twenty dollar bill in the front pocket of his pants.
Both Tracie and Jason Socha identified the defendant in court
as the man who took Mr. Socha's wallet. The jury also viewed a
surveillance tape taken at the McDonalds restaurant and listened to
the 911 call made by a manager of McDonalds.[FN1]
[FN1]
Sergeant Brisoce, who works in the
Communications Division of the police department,
testified as to the authenticity of the 911 tape heard by
the jury. John Preston, a facility manager with
McDonalds who maintains the surveillance tapes

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taken at the restaurant, testified as to the authenticity
of the tape viewed by the jury.13
III. Petitioner's Claims
A. Sufficiency of the Evidence to Convict Petitioner of Purse Snatching
Petitioner's first claim is that there was insufficient evidence to support his
conviction. On direct appeal, the Louisiana Fourth Circuit Court of Appeal rejected that claim,
holding:
By his first assignment of error, the defendant asserts that the
district court erred by denying his post-verdict judgment of acquittal.
He argues that the evidence was insufficient to convict beyond a
reasonable doubt.
In State v. Brown, 2003-0897, p. 22 (La. 4/12/05), 907 So.2d
1, 18, the Court set forth the standard for determining a claim of
insufficiency of evidence:
When reviewing the sufficiency of the
evidence to support a conviction, Louisiana appellate
courts are controlled by the standard enunciated in
Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61
L.Ed.2d 560 (1979). Under this standard, the
appellate court "must determine that the evidence,
viewed in the light most favorable to the prosecution,
was sufficient to convince a rational trier of fact that
all of the elements of the crime had been proved
beyond a reasonable doubt." State v. Neal, 00-0674,
(La. 6/29/01) 796 So.2d 649, 657 (citing State v.
Captville, 448 So.2d 676, 678 (La. 1984)).
When circumstantial evidence is used to prove
the commission of the offense, La. R.S. 15:438
requires that "assuming every fact to be proved that
the evidence tends to prove, in order to convict, it
must exclude every reasonable hypothesis of

13

State v. Phillips, 61 So.3d 130, 132-33 (La. App. 4th Cir. 2011) (No. 2010-KA-0582); State
Rec., Vol. III of IV.
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innocence." Neal, 796 So.2d at 657. Ultimately, all
evidence, both direct and circumstantial must be
sufficient under Jackson to prove guilt beyond a
reasonable doubt to a rational jury. Id. (citing State v.
Rosiere, 488 So.2d 965, 968 (La. 1986)).
Purse snatching is the theft of anything of value contained
within a purse or wallet at the time of the theft, from the person of
another or which is in the immediate control of another, by use of
force, intimidation, or by snatching, but not armed with a dangerous
weapon. La. R.S. 14:65.1. The defendant argues that the State failed
to prove that the wallet was in the immediate control of Mrs. Socha
when it was snatched.
Situations in which the wallet or purse was not in the physical
possession of the victim at the time it was snatched have been
addressed by this court and the Louisiana Supreme Court.
In State v. Anderson, 418 So.2d 551 (La. 1982), the court held
that a purse snatching did not require an actual face-to-face
confrontation. It then affirmed a conviction for purse snatching
where the victim's purse had been taken from the floor near her legs.
In State v. Pierre, 2004-0010 (La.App. 4 Cir. 2/25/04), 869 So.2d
246, this court found that the evidence was sufficient to show that the
victim's purse was in her immediate control when the defendant
snatched the victim's purse that was lying next to her on the counter
of a grocery store.
As in Anderson and Pierre, the wallet that was snatched by
the defendant was in the immediate control of Mrs. Socha. The
wallet was lying right next to her hand on the counter of the
McDonalds, and she may have even had a finger on the wallet. This
assignment of error lacks merit.14
The Louisiana Supreme Court then denied relief without assigning additional reasons.15
Because a sufficiency of the evidence claim presents a mixed question of law and
fact, this Court must defer to the state court's decision rejecting petitioner's claim unless he shows

14

Phillips, 61 So.3d at 133-34; State Rec., Vol. III of IV.

15

State v. Phillips, 71 So.3d 311 (La. 2011) (No. 2011-KO-0582); State Rec., Vol. I of IV.
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that the decision "was contrary to, or involved an unreasonable application of, clearly established
Federal law, as determined by the Supreme Court of the United States." 28 U.S.C. § 2254(d)(1);
Taylor v. Day, Civ. Action No. 98-3190, 1999 WL 195515, at *3 (E.D. La. Apr. 6, 1999), aff'd, 213
F.3d 639 (5th Cir. 2000). For the following reasons, it is clear that he has not made the showing in
the instant case.
As the state court correctly noted, claims of insufficient evidence are to be analyzed
pursuant to the standard set forth in Jackson v. Virginia, 443 U.S. 307 (1979), which held that "the
relevant question is whether, after viewing the evidence in the light most favorable to the
prosecution, any rational trier of fact could have found the essential elements of the crime beyond
a reasonable doubt." Id. at 319. Importantly, "[t]he Jackson inquiry 'does not focus on whether the
trier of fact made the correct guilt or innocence determination, but rather whether it made a rational
decision to convict or acquit.'" Santellan v. Cockrell, 271 F.3d 190, 193 (5th Cir. 2001) (quoting
Herrera v. Collins, 506 U.S. 390, 402 (1993)) (emphasis added). Therefore, "a federal court may
not overturn a state court decision rejecting a sufficiency of the evidence challenge simply because
the federal court disagrees with the state court. ... Because rational people can sometimes disagree,
the inevitable consequence of this settled law is that judges will sometimes encounter convictions
that they believe to be mistaken, but that they must nonetheless uphold." Cavazos v. Smith, 132 S.
Ct. 2, 4 (2011).
Moreover, as the United States Fifth Circuit Court of Appeals has observed: "[A]
state prisoner's burden is especially heavy on habeas review of the sufficiency of the evidence. The
jury's finding of facts will be overturned only when necessary to preserve the fundamental protection
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of due process of law." Perez v. Cain, 529 F.3d 588, 594 (5th Cir. 2008) (quotation marks omitted).
Further, because the state court's decision applying the already deferential Jackson standard must
be assessed here under the strict and narrow standards of review mandated by the AEDPA, the
standard to be applied by this Court is in fact "twice-deferential." Parker v. Matthews, 132 S. Ct.
2148, 2152 (2012); see also Coleman v. Johnson, 132 S. Ct. 2060, 2062 (2012).16
Under these stringently deferential standards of review, petitioner is not entitled to
relief. As noted by the state court, he was convicted of purse snatching. Louisiana law provides:
"Purse snatching is the theft of anything of value contained within a purse or wallet at the time of
the theft, from the person of another or which is in the immediate control of another, by use of force,
intimidation, or by snatching, but not armed with a dangerous weapon." La.Rev.Stat.Ann. §
14:65.1(A). Petitioner does not contest that he was the perpetrator of the crime, that the wallet was
"snatched" from the victim, or that something of value was taken. Rather, his argument is that the
wallet was not "in the immediate control of another."17 However, the victim testified at trial that the

16

It must additionally be remembered that Louisiana's circumstantial evidence standard requiring
that every reasonable hypothesis of innocence be excluded does not apply in federal habeas corpus
proceedings; in these proceedings, only the Jackson standard need be satisfied, even if state law
would impose a more demanding standard of proof. Foy v. Donnelly, 959 F.2d 1307, 1314 n.9 (5th
Cir. 1992); Higgins v. Cain, Civ. Action No. 09-2632, 2010 WL 890998, at *21 n.38 (E.D. La. Mar.
8, 2010), aff'd, 434 Fed. App'x 405 (5th Cir. 2011); Williams v. Cain, No. 07-4148, 2009 WL
224695, at *4 (E.D. La. Jan. 29, 2009), aff'd, 408 Fed. App'x 817 (5th Cir. 2011); Davis v. Cain, Civ.
Action No. 07-6389, 2008 WL 5191912, at *14 (E.D. La. Dec. 11, 2008); Wade v. Cain, Civil
Action No. 05-0876, 2008 WL 2679519, at *6 (W.D. La. May 15, 2008) (Hornsby, M.J.) (adopted
by Stagg, J., on July 3, 2008), aff'd, 372 Fed. App'x 549 (5th Cir. Apr. 9, 2010); see also Coleman,
132 S. Ct. at 2064 ("Under Jackson, federal courts must look to state law for the substantive
elements of the criminal offense, but the minimum amount of evidence that the Due Process Clause
requires to prove the offense is purely a matter of federal law." (citation and internal quotation marks
omitted)).
17

See, e.g., Rec. Doc. 18, p. 2.
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wallet was next to her hand on the McDonald's counter. Whether or not she was actually touching
the wallet at the time it was snatched is not determinative. In State v. Harrche, 81 So.3d 861 (La.
App. 5th Cir. 2011), writ denied, 97 So.3d 372 (La. 2012), the court explained:
The [Louisiana] Supreme Court has held that "'snatching'"
does not require an actual face-to-face confrontation, and is
distinguished from "'use of force'" and "'intimidation'" by the statute's
very wording. State v. Anderson, 418 So.2d 551, 552 (La. 1982).
The State need only show that force or intimidation or snatching was
used to accomplish the theft of something of value from the purse
that is within the immediate control or on the person. State v. Boss,
03-133 (La.App. 5 Cir. 5/28/03), 848 So.2d 75, 78 (emphasis as
found in decision), writ denied, 03-1968 (La. 5/14/04), 872 So.2d
508. LSA-R.S. 14:65.1 does not require that the victim know at the
time of the taking that his or her property is taken or snatched. State
v. Smith, 07-2028, p. 11 (La. 10/20/09), 23 So.3d 291, 298 n.3 (per
curiam). It remains possible in Louisiana to "snatch" a victim's purse
from her possession without her awareness at the time of the taking.
Id.
In Anderson, supra, sufficient evidence of a purse snatching
was found where the victim testified only that she felt a vibration,
then noticed that her purse was no longer on the floor by her feet. In
State v. Capote, 474 So.2d 497 (La.App. 4 Cir. 1985), the court held
that even though the victim did not feel her purse being removed
from the back of her chair, the theft constituted purse snatching,
recognizing that no face-to-face confrontation was required. The
court found sufficient evidence to support the purse snatching
conviction.
In State v. Pierre, 04-0010, p. 1 (La.App. 4 Cir. 2/25/04), 869
So.2d 246, 247, the defendant was found guilty of attempted purse
snatching. On appeal, the defendant argued there was insufficient
proof that his actions constituted attempted purse snatching when
there was no evidence offered that the purse contained anything of
value or that it was taken from the victim's immediate control. Pierre,
04-0010 at 3-4, 869 So.2d at 248-49. The victim in Pierre testified
that when her purse was taken it was right next to the cash register
where she had been standing until the defendant pushed her aside.
Pierre, 04-0010 at 4, 869 So.2d at 249. The court found that the
evidence was sufficient to show that the defendant "snatched" the
purse, noting that the victim saw the defendant with her purse, which
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seconds before had been in her immediate control. The court found
that "[s]uch is adequate evidence even if he merely picked it up from
the counter." Pierre, 04-0010 at 5, 869 So.2d at 249.
In Boss, 848 So.2d at 76, the defendant challenged the
sufficiency of the evidence used to convict him of purse snatching.
In Boss, while grocery shopping, the victim placed her purse in the
top compartment of the grocery cart and walked to the dairy case,
while pushing the cart. She parked the cart and stepped about three
feet away from it to retrieve milk. When she returned to her cart, her
purse was missing, and she observed someone proceeding through
the grocery aisle with her purse on his shoulder. She screamed and
began to chase him through the store. The suspect dropped the purse
at the store entrance and ran into the parking lot. Id.
In Boss, the Jefferson Parish District Attorney filed a bill of
information charging the defendant with theft of goods, but shortly
before trial, the State amended the bill of information to reflect a
purse snatching charge. The defendant was found guilty as charged
after a bench trial. Id. at 76-77. On appeal, the defendant argued that
the State failed to prove an essential element of the crime of purse
snatching and argued that the matter should have been considered a
theft. Id. at 77. This Court recognized that the District Attorney has
the sole discretion to choose under which law he will prosecute. Id.
This Court also determined that even though there was no eyewitness
to the "snatching," it found that the State proved by circumstantial
evidence the essential elements of the purse snatching offense beyond
a reasonable doubt. This Court recognized that prior to the victim
finding her purse missing, the victim had her purse, which contained
things of value, and it was in her immediate control. This Court
noted that the victim turned away to retrieve some milk and in the
length of time that it took to do that her purse was gone. This Court
further recognized that the victim immediately spotted the defendant
with her purse in his possession as he attempted to flee the store.
Another witness saw the defendant running through the store with the
purse on his arm as well. This Court concluded that the evidence was
sufficient to sustain the purse snatching conviction. Id. at 78.
Harrche, 81 So.3d at 866-67. The court in Harrche then went on to find sufficient evidence to
support the purse snatching conviction in that case, where the evidence showed that the defendant

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grabbed the victim's purse from her nearby shopping cart as she was loading groceries into a vehicle.
Id. at 867-68.
Generally, a victim's testimony and positive identification of a defendant are
sufficient evidence to support a conviction if the elements of the crime have been proven. Peters
v. Whitley, 942 F.2d 937, 941-42 (5th Cir. 1991); see also Fetterley v. Whitley, No. 94-30310, 1994
WL 708655, at *1 n.6 (5th Cir. Dec. 6, 1994); Holderfield v. Jones, 903 F. Supp. 1011, 1017 (E.D.
La. 1995). Moreover, based on the foregoing, it is clear that the facts of this case as recounted in
the Mrs. Socha's testimony are sufficient to satisfy the element of "immediate control" for purse
snatching under Louisiana jurisprudence, and it is further clear that this federal habeas court must
defer to the Louisiana state courts' interpretation of the state's criminal statutes. See Weeks v. Scott,
55 F.3d 1059, 1063 (5th Cir. 1995) ("It is not our function as a federal appellate court in a habeas
proceeding to review a state's interpretation of its own law, and we defer to the state courts'
interpretation of the Texas attempt statute." (citation omitted)).
For all of these reasons, when the evidence in this case is viewed in the light most
favorable to the prosecution, it simply cannot be said that the guilty verdict was irrational.
Therefore, petitioner cannot show that the state court's decision rejecting his claim was contrary to,
or involved an unreasonable application of, clearly established federal law, as determined by the
Supreme Court of the United States. Accordingly, under the doubly-deferential standards of review
which must be applied, the claim should be denied.

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B. Excessive Sentence
Petitioner's second claim is that his sentence was excessive. On direct appeal, the
Louisiana Fourth Circuit Court of Appeal rejected this claim, holding:
By his second assignment of error, the defendant maintains
that the district court abused its discretion when it sentenced him to
the life sentence mandated by La. R.S. 15:529.1 without any inquiry
as to whether the sentence was excessive under the facts of the case
as required by State v. Dorthey, 623 So.2d 1276 (La. 1993). He
urges that the district court erred in finding that it had no discretion
to impose a lesser sentence.
However, the record shows that defense counsel neither
objected when the court imposed the life sentence following the
multiple offender adjudication nor did he file a motion to reconsider
sentence as mandated by La.C.Cr.P. art. 881.1. This court has held
that the failure to file a motion to reconsider sentence or to object to
the sentence at the time it is imposed precludes a defendant from
raising a claim regarding his sentence on appeal. State v. Wilson,
2006-1421, p. 16 (La.App. 3/28/07), 956 So.2d 41, 51; State v.
Rodriguez, 2000-0519, p. 14 (La.App. 4 Cir. 2/14/01), 781 So.2d
640, 649; State v. Tyler, 98-1667, p. 14 (La.App. 4 Cir. 11/24/99),
749 So.2d 767, 775.[FN2] Therefore, this assignment of error was
not preserved for review. Even if it had been preserved for review,
the defendant failed to make the requisite showing that a lesser
sentence should have been imposed.
[FN2] Counsel filed a motion specifically seeking to
have the ten-year sentence imposed on November 9,
2009 reconsidered. The motion was denied on
December 2, 2009.
In State v. Rice, 2001-0215, p. 5-6, (La.App. 4 Cir. 1/16/02),
807 So.2d 350, 354, this court reviewed the nature of the habitual
felony offender sentencing scheme and the standard for departing
from it:
Even though a sentence under the Habitual Offender
Law is the minimum provided by that statute, the
sentence may still be unconstitutionally excessive if
it makes no measurable contribution to acceptable
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goals of punishment, or is nothing more than the
purposeful imposition of pain and suffering and is
grossly out of proportion to the severity of the crime.
State v. Johnson, 97-1906, pp. 6-7 (La. 3/4/98), 709
So.2d 672, 677; State v. Dorthey, 623 So.2d 1276,
1280-81 (La. 1993). However, the entire Habitual
Offender Law has been held constitutional, and, thus,
the minimum sentences it imposes upon habitual
offenders are also presumed to be constitutional.
Johnson, 97-1906, pp. 5-6, 709 So.2d at 675; see also
State v. Young, 94-1636, p. 5 (La.App. 4 Cir.
10/26/95), 663 So.2d 525, 527. There must be
substantial evidence to rebut the presumption of
constitutionality. State v. Francis, 96-2389, p. 7
(La.App. 4 Cir. 4/15/98), 715 So.2d 457, 461. To
rebut the presumption that the mandatory minimum
sentence is constitutional, the defendant must show by
clear and convincing evidence that he is exceptional,
which in this context means that because of unusual
circumstances he is a victim of the legislature's failure
to assign sentences that are meaningfully tailored to
the culpability of the offender, the gravity of the
offense, and the circumstances of the case. State v.
Lindsey, 99-3256, p. 5 (La. 10/17/00), 770 So.2d 339,
343; Johnson, 97-1906, p. 8, 709 So.2d at 677.
"Departures downward from the minimum sentence
under the Habitual Offender Law should occur only
in rare situations." Id.
Prior to being sentenced, the defendant addressed the court.
He stated that he was fifty-three years old and that he is a high school
graduate. He worked three jobs since his release from prison two
years ago. The defendant urged that he never hurt anyone during any
of his crimes and that he was never found with a weapon. He also
stated that he has an unspecified illness and that he has children and
grandchildren. Finally, the defendant argued that he only committed
a theft upon the victims here.
None of the mitigating factors presented by the defendant
overwhelms the presumption that the legislatively-mandated sentence
was appropriate. His two prior convictions were for simple robbery
and armed robbery. In the case at hand, the defendant implied that he
had a weapon and threatened to shoot the victims.
- 16 -

Notably, the defendant committed his offense after the
effective date of the amendments reducing the mandatory minimum
sentence for habitual offenders. Thus, even after the legislature
decided to reduce sentences for a variety of offenses and offenders by
passing Act 403, a life sentence was still the minimum which could
be imposed on the defendant under La. R.S. 15:529.1(A)(2)(b)(i)(ii).
The life sentence was mandatory because the instant felony
conviction and two of his prior felony convictions were crimes of
violence as defined by La. R.S. 14:2(13). Thus, despite his attempt
to present mitigating factors to the court, the defendant failed to
provide substantial evidence that exceptional circumstances justified
a downward departure from the mandatory term of life imprisonment.
See State v. Trackling, 2007-0068 (La.App. 4 Cir. 5/16/07), 958
So.2d 1209. Accordingly, the district court did not err when it
imposed a life sentence.18
The Louisiana Supreme Court then denied relief without assigning additional reasons.19
To the extent petitioner is arguing that his sentence is excessive or otherwise
inappropriate under Louisiana law, that claim is not cognizable in this federal proceeding. Federal
habeas corpus relief is available only to correct violations of federal constitutional law and,
therefore, this Court does not sit to review alleged errors of state law. Narvaiz v. Johnson, 134 F.3d
688, 695 (5th Cir. 1998). Accordingly, this Court will not review the state court's findings regarding
the legality of petitioner's sentence under state law. Brunet v. Goodwin, Civ. Action No. 12-1974,
2013 WL 623505, at *12 (E.D. La. Jan. 22, 2013) ("[E]ven if Brunet's sentences were excessive
under the Louisiana Constitution or if the trial court failed to comply with state law concerning
sentencing procedures, which are issues this court need not and does not reach, those errors would

18

Phillips, 61 So.3d at 134-35; State Rec., Vol. III of IV.

19

State v. Phillips, 71 So.3d 311 (La. 2011) (No. 2011-KO-0582); State Rec., Vol. I of IV.
- 17 -

not be correctable in a federal habeas corpus proceeding."), adopted, 2013 WL 619278 (E.D. La.
Feb. 19, 2013).
Further, even if petitioner is claiming that his sentence is excessive under the Eighth
Amendment of the United States Constitution, and even if that claim could be considered exhausted
and not procedurally barred, which is doubtful, the federal claim is without merit. In Solem v. Helm,
463 U.S. 277, 284 (1983), the Supreme Court held that the Eighth Amendment "prohibits not only
barbaric punishments, but also sentences that are disproportionate to the crime committed." "This
constitutional principle is tempered, however, by the corollary proposition that the determination
of prison sentences is a legislative prerogative that is primarily within the province of legislatures,
not courts." United States v. Gonzales, 121 F.3d 928, 942 (5th Cir. 1997) (citing Rummel v. Estelle,
445 U.S. 263, 274-76 (1980)). "[C]ourts must grant substantial deference to the broad authority that
legislatures necessarily possess in determining the types and limits of punishments for crimes."
Gonzales, 121 F.3d at 942 (quotation marks omitted). "[T]herefore, it is firmly established that
successful challenges to the proportionality of punishments should be exceedingly rare." Id.
(quotation marks omitted).
Interpreting Solem in light of intervening precedent, the United States Fifth Circuit
Court of Appeals has set forth the framework to be used when analyzing a claim that a sentence is
excessive:
[W]e will initially make a threshold comparison of the gravity of
[petitioner's] offenses against the severity of his sentence. Only if we
infer that the sentence is grossly disproportionate to the offense will
we then ... compare the sentence received to (1) sentences for similar
crimes in the same jurisdiction and (2) sentences for the same crime
in other jurisdictions.
- 18 -

McGruder v. Puckett, 954 F.2d 313, 316 (5th Cir. 1992). Moreover, when, as here, evaluating the
excessiveness of a sentence imposed under a habitual offender statute, a court must be mindful that
the "sentence is imposed to reflect the seriousness of [petitioner's] most recent offense, not as it
stands alone, but in the light of his prior offenses." Id.
The Fifth Circuit has noted that Rummel v. Estelle, 445 U.S. 263 (1980), "establishes
a benchmark for disproportionate punishment under the Eighth Amendment." Gonzales, 121 F.3d
at 943. In Rummel, the Supreme Court upheld a petitioner's sentence to life imprisonment for
obtaining $120.75 under false pretenses. The sentence was imposed under a Texas recidivist statute
and took into account petitioner's prior convictions for fraudulent use of a credit card and passing
a forged check. The Fifth Circuit observed:
We acknowledge that the distinction between constitutional sentences
and grossly disproportionate punishments is an inherently subjective
judgment, defying bright lines and neutral principles of law.
Nevertheless, we can say with certainty that the life sentence
approved in Rummel falls on the constitutional side of the line,
thereby providing a litmus test for claims of disproportionate
punishment in violation of the Eighth Amendment.
Gonzales, 121 F.3d at 943 (footnote omitted).
In light of the finding in Rummel that a life sentence was not excessive for the
relatively minor offenses involved in that case, this Court has no basis for finding that petitioner's
enhanced life sentence as a third offender is grossly disproportionate where all of petitioner's crimes
(the instant conviction of purse snatching and his predicate convictions of simple robbery and armed
robbery) were obviously more serious. In that the sentence is not grossly disproportionate, this
Court's "inquiry is finished. " Gonzales, 121 F.3d at 942.
- 19 -

C. Sufficiency of the Evidence to Adjudicate Petitioner a Third Offender
Petitioner's third claim is that there was insufficient evidence to support his habitual
offender adjudication. The state argues that this claim is procedurally barred. The state is correct.
The United States Fifth Circuit Court of Appeals has held:
A claim that a state has withheld a federal right from a person
in its custody may not be reviewed by a federal court if the last state
court to consider that claim expressly relied on a state ground for
denial of relief that is both independent of the merits of the federal
claim and an adequate basis for the court’s decision. To satisfy the
"independent" and "adequate" requirements, the dismissal must
"clearly and expressly" indicate that it rests on state grounds which
bar relief, and the bar must be strictly or regularly followed by state
courts, and applied to the majority of similar claims. This rule
applies to state court judgments on both substantive and procedural
grounds.
Finley v. Johnson, 243 F.3d 215, 218 (5th Cir. 2001) (citations omitted).
Here, the state courts clearly rejected petitioner's claim on procedural grounds. On
direct appeal, the Louisiana Fourth Circuit Court of Appeal rejected this claim, holding:
By his third assignment of error, the defendant contends that
the evidence presented at the multiple bill hearing was insufficient
because the State failed to present a contemporaneous record of his
prior guilty plea colloquies.
The record contains no written response to the multiple bill as
required by La. R.S. 15:529.1(D)(1)(b), and there was no oral
objection made at the multiple bill hearing raising this issue.
Therefore, appellate review of whether the defendant was properly
Boykinized on the prior convictions is precluded. See State v.
Cossee, 95-2218 (La.App. 4 Cir. 7/24/96), 678 So.2d 72.20

20

Phillips, 61 So.3d at 135-36; State Rec., Vol. III of IV.
- 20 -

The Louisiana Supreme Court then likewise denied relief without assigning additional reasons.21
The procedural rules invoked here are obviously independent of the merits of
petitioner's federal claim. Therefore, the Court needs only to determine whether that rule was
"adequate."
"The [procedural bar] doctrine presumes that a state procedural ground is adequate
... and, ordinarily, the burden is on the habeas petitioner to demonstrate otherwise." Hughes v.
Johnson, 191 F.3d 607, 614 (5th Cir. 1999). In order to establish that a state procedural rule is not
"adequate," a petitioner bears the burden of showing that the state did not strictly or regularly follow
the procedural rule. Stokes v. Anderson, 123 F.3d 858, 860 (5th Cir. 1997). Here, petitioner has
made no attempt whatsoever to establish that the rule was not strictly or regularly followed.
Moreover, the procedural rules invoked in this case have in fact been held to be "adequate" to bar
such a claim from federal review, see Weaver v. Cain, Civ. Action No. 04-1642, 2006 WL 2792427,
at *10-11 (E.D. La. Sept. 25, 2006), and this Court knows of no reason to find otherwise in the
instant case.
Where, as in the instant case, the state courts have rejected a petitioner's claim based
on independent and adequate state procedural rules, "federal habeas review is barred unless the
petitioner demonstrates either cause and prejudice or that a failure to address the claim will result

21

State v. Phillips, 71 So.3d 311 (La. 2011) (No. 2011-KO-0582); State Rec., Vol. I of IV.
"Where there has been one reasoned state judgment rejecting a federal claim, later unexplained
orders upholding that judgment or rejecting the same claim are presumed to rest upon the same
ground." Finley, 243 F.3d at 218.
- 21 -

in a fundamental miscarriage of justice." Hughes v. Johnson, 191 F.3d 607, 614 (5th Cir. 1999).
In the instant case, petitioner demonstrates neither.
"To establish cause for a procedural default, there must be something external to the
petitioner, something that cannot fairly be attributed to him." Johnson v. Puckett, 176 F.3d 809, 816
(5th Cir. 1999) (quotation marks omitted). Objective factors that can constitute cause include
interference by officials that makes compliance with the state procedural rule impracticable, a
showing that the factual or legal basis for the claim was not reasonably available to counsel, and
ineffective assistance of counsel. Romero v. Collins, 961 F.2d 1181, 1183 (5th Cir. 1992). Here,
petitioner has not argued, much less established, cause for this procedural default. "Absent a
showing of cause, it is not necessary for the court to consider whether there is actual prejudice."
Martin v. Maxey, 98 F.3d 844, 849 (5th Cir. 1996).
In that petitioner has not met the "cause and prejudice" test, this Court should
consider his claim only if the application of the procedural bar would result in a "fundamental
miscarriage of justice." However, the "fundamental miscarriage of justice" exception "applies only
in extraordinary cases" and, in the context of a defaulted habitual offender claim, requires the
petitioner "to establish that he is actually innocent of the habitual offender sentence enhancement
by showing that but for a constitutional error he would not have been legally eligible for the
sentence he received." Sumrell v. Mississippi, 403 Fed. App'x 959, 961 (5th Cir. 2010); accord
Sones v. Hargett, 61 F.3d 410, 418 (5th Cir. 1995); LeBanks v. Cain, Civ. Action No. 09-7709, 2010
WL 5055989, at *6 (E.D. La. Oct. 25, 2010), adopted, 2010 WL 5057424 (E.D. La. Dec. 6, 2010).
Petitioner has failed to show that he was not in fact a third offender legally eligible for a term of life
- 22 -

imprisonment, and, therefore, he has not established that any miscarriage of justice will result from
the application of the procedural bar.
D. Perjured Testimony
Petitioner's fourth claim is that the prosecutor used perjured testimony to obtain the
conviction. On direct appeal, the Louisiana Fourth Circuit Court of Appeal rejected this claim,
holding:
[T]he defendant asserts that the state knowingly presented the
perjured testimony of Mrs. Socha to prove that she had immediate
control over the wallet when she testified that she may have had a
finger on the wallet as it lay on the counter at McDonald's. He urges
that her testimony conflicts directly with the video tape of the
incident that was played for the jury. He also claims that her
testimony conflicts with the motion hearing testimony of Sergeant
Young wherein Sergeant Young testified that the wallet was placed
on the counter momentarily while Mrs. Socha talked to the cashier.
The defendant insists that the state's sole purpose for using the
alleged perjured testimony was to upgrade a misdemeanor theft to a
felony and subsequently charge him as a multiple offender.
Where a prosecutor allows a state witness to give false
testimony without correction, a reviewing court must reverse the
conviction if the witness's testimony reasonably could have affected
the jury's verdict, even if the testimony goes only to the credibility of
the witness. Napue v. Illinois, 360 U.S. 264, 269, 79 S.Ct. 1173,
1177, 3 L.Ed.2d 1217 (1959); State v. Broadway, 96–2659, p. 17 (La.
10/19/99), 753 So.2d 801, 814; State v. Williams, 338 So.2d 672, 677
(La. 1976). To prove a Napue claim, the defendant must show that
the prosecutor acted in collusion with the witness to facilitate false
testimony. Broadway, 96-2659, p. 17, 753 So.2d at 814.
Furthermore, fundamental fairness, i.e., due process, is offended
"when the State, although not soliciting false evidence, allows it to go
uncorrected when it appears." Napue, 360 U.S. at 269, 79 S.Ct. 1173,
3 L.Ed.2d 1217. When false testimony has been given under such
circumstances, the defendant is entitled to a new trial unless there is
no reasonable likelihood that the alleged false testimony could have
affected the outcome of the trial. Giglio v. United States, 405 U.S.
150, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972). However, the grant of a
- 23 -

new trial based upon a Napue violation is proper only if: (1) the
statements at issue are shown to be actually false; (2) the prosecution
knew they were false; and (3) the statements were material. United
States v. O'Keefe, 128 F.3d 885, 893 (5 Cir. 1997).
Nothing that the defendant presents reflects that the state
acted in collusion with Mrs. Socha when she testified that she "may"
have had a finger on the wallet. Also, as previously referenced
herein, Mrs. Socha was not required to be in physical control of the
wallet when it was snatched. Thus, her statement that she may have
had a finger on the wallet was not material and did not affect the
outcome of the trial.22
The Louisiana Supreme Court then denied relief without assigning additional reasons.23
A claim of prosecutorial misconduct, including the use of false testimony, presents
a mixed question of law and fact. Harvey v. Cain, Civ. Action No. 13-2994, 2013 WL 6490484, at
*5 (E.D. La. Dec. 10, 2013). Therefore, to obtain federal relief, petitioner must show that the state
court's decision denying this claim "was contrary to, or involved an unreasonable application of,
clearly established Federal law, as determined by the Supreme Court of the United States." 28
U.S.C. § 2254(d)(1). For the following reasons, it is clear that he has not made that showing.
It is true that due process may be violated if a prosecutor knowingly uses false
testimony at trial or allows untrue testimony to go uncorrected. Giglio v. United States, 405 U.S.
150, 153 (1972); Napue v. Illinois, 360 U.S. 264, 269 (1959); Faulder v. Johnson, 81 F.3d 515, 519
(5th Cir. 1996). However, as the state court correctly noted, a petitioner is entitled to relief on such
a claim only if he shows that (1) the testimony in question was actually false, (2) the prosecutor
knew it was false, and (3) the testimony was material. Duncan v. Cockrell, 70 Fed. App'x 741, 744

22

Phillips, 71 So.3d at 136; State Rec., Vol. I of IV.

23

State v. Phillips, 71 So.3d 311 (La. 2011) (No. 2011-KO-0582); State Rec., Vol. I of IV.
- 24 -

(5th Cir. 2003). "Evidence is 'false' if, inter alia, it is specific misleading evidence important to the
prosecution's case in chief. False evidence is 'material' only if there is any reasonable likelihood that
it could have affected the jury's verdict." Id.
Here, even if petitioner could show that Mrs. Socha's testimony regarding whether
she had a finger on the wallet was false, which is obviously doubtful at best,24 he cannot show that
the testimony on that point was "material." As already explained in detail supra, whether Mrs.
Socha was physically touching the wallet at the time it was "snatched" is of no consequence; even
if she was not, the wallet was still in her "immediate control," which is all that was legally required.
For all of these reasons, petitioner cannot show that the state court's decision denying
this claim "was contrary to, or involved an unreasonable application of, clearly established Federal
law, as determined by the Supreme Court of the United States." 28 U.S.C. § 2254(d)(1). Therefore,
relief is not warranted.
E. Sufficiency of the Bill of Information
Petitioner's fifth and sixth claims challenge the sufficiency of the bill of information.
On direct appeal, the Louisiana Fourth Circuit Court of Appeal held:
The defendant argues in his third pro se assignment of error
that the bill of information was defective because it failed to cite the
statute.
A post-verdict attack on the sufficiency of an indictment does
not provide grounds for setting aside a conviction unless the
indictment failed to give fair notice of the offense charged, or failed
to set forth any identifiable offense. State v. Cavazos, 610 So.2d 127

24

Mrs. Socha did not unequivocally state that she had a finger on the wallet; rather, she testified
that she may have had a finger on it or that her finger may have been on the counter next to the
wallet. State Rec., Vol. III of IV, transcript of October 19, 2009, p. 19.
- 25 -

(La. 1992). The Louisiana Code of Criminal Procedure article 464
provides:
The indictment shall be a plain, concise, and
definite written statement of the essential facts
constituting the offense charged. It shall state for each
count the official or customary citation of the statute
which the defendant is alleged to have violated. Error
in the citation or its omission shall not be ground for
dismissal of the indictment or for reversal of a
conviction if the error or omission did not mislead the
defendant to his prejudice.
In the present case, the defendant was charged with a
violation of La. R.S. 14:65.1. Purse snatching is the theft of anything
of value contained within a purse or wallet at the time of the theft,
from the person of another or which is in the immediate control of
another, by use of force, intimidation, or by snatching, but not armed
with a dangerous weapon.
Count one of the bill of information alleged that the defendant
"committed theft of a wallet from the person or within the immediate
control of Traci Socha, by use of force, intimidation, or by
snatching."
While the bill of information does not track the exact
language of the statute or cite the statute, it gives fair notice of the
crime of which the defendant was charged and ultimately convicted,
that is, purse snatching. Thus, the bill of information complies with
La.C.Cr.P. article 464 in that it did not mislead defendant to his
prejudice. This assignment of error also lacks merit.25
The Louisiana Supreme Court then denied relief without assigning additional reasons.26

25

Phillips, 71 So.3d at 136-37; State Rec., Vol. I of IV.

26

State v. Phillips, 71 So.3d 311 (La. 2011) (No. 2011-KO-0582); State Rec., Vol. I of IV. In
the state post-conviction proceedings, petitioner then again challenged the bill of information. The
state district court rejected the claim, holding:
Petitioner asserts that the State violated his liberty interest by taking him to trial
without giving him fair notice of the offense charged. A review of the record shows
that this claim had been previously addressed and denied by the Fourth Circuit Court
- 26 -

The sufficiency of a state charging instrument is not a matter for federal habeas relief
unless it can be shown that the instrument is so defective that it deprives the state court of
jurisdiction. McKay v. Collins, 12 F.3d 66, 68 (5th Cir.), reh'g granted in part on other grounds sub
nom., Williams v. Collins, 12 F.3d 70 (5th Cir. 1994) (per curiam). The United States Fifth Circuit
Court of Appeals has observed that the sufficiency of a state charging instrument is fatally defective
only when there are no circumstances under which there could be a valid conviction based on that
instrument, and that "determination can be made only by looking to the law of the state." Liner v.
Phelps, 731 F.2d 1201, 1203 (5th Cir. 1984) (internal quotation marks omitted) (emphasis in
original).
Under Louisiana law, "[a] defendant may not complain of technical insufficiency in
an indictment for the first time after conviction, when the indictment fairly informed the accused of
the charge against him and the defendant is not prejudiced by the defect." State v. Johnson, 822
So.2d 840, 842 (La. App. 5th Cir. 2002). It is true that the bill of information did not contain a
statutory citation; however, such an omission is not so serious as render the charging document
invalid and deprive the court of jurisdiction. Rather, Louisiana law expressly provides:

of Appeals and the Louisiana Supreme Court. State v. Phillips, App. 4 Cir. 2011, 61
So.3d 130, 2010-0582 (La. App. 4 Cir. 2/17/11), writ denied 71 So.3d 311, 20110582 (La. 10/7/11). Accordingly, this assignment of error is without merit.
State Rec., Vol. IV of IV, Judgment dated December 11, 2012, p. 1. His related writ applications
were then likewise denied by the Louisiana Fourth Circuit Court of Appeal and by the Louisiana
Supreme Court. State v. Phillips, No. 2013-K-0072 (La. App. 4th Cir. Jan. 30, 2013), writ denied,
118 So.3d 1119 (La. 2013); State Rec., Vol. IV of IV.
- 27 -

The indictment shall be a plain, concise, and definite written
statement of the essential facts constituting the offense charged. It
shall state for each count the official or customary citation of the
statute which the defendant is alleged to have violated. Error in the
citation or its omission shall not be ground for dismissal of the
indictment or for reversal of a conviction if the error or omission did
not mislead the defendant to his prejudice.
La. Code Crim. P. art. 464 (emphasis added).27
Here, as noted, the state courts found that the charging document was legally
sufficient as a matter of state law. Obviously, "[t]he principle that state courts are the final arbiters
of state law is well-settled." Levy Gardens Partners 2007, L.P. v. Commonwealth Land and Title
Insurance Co., 706 F.3d 622, 629 (5th Cir. 2013); accord Dickerson v. Guste, 932 F.2d 1142, 1145
(5th Cir.1991) ("We will not review a state court's interpretation of its own law in a federal habeas
corpus proceeding. We do not sit as a 'super' state supreme court in such a proceeding to review
errors under state law." (internal citation and quotation marks omitted)). Moreover, even if this
Court had the authority to second-guess the state courts' interpretations of state law, that would not

27

The Comments to the article additionally explain:
Citation of the statute alleged to have been violated is a requirement not contained
in the A.L.I. Code of Criminal Procedure or the 1928 Louisiana Code, but it is
adopted from Fed.Rule 7(c). It is desirable because of the ever-increasing number
and complexity of crimes and penal provisions in general statutes. "To know the
statute may be as important as to know the facts intended to be proved." Orfield,
Criminal Procedure from Arrest to Appeal 258 (1947). The Advisory Committee
note to Fed.Rule 7(c) states that the citation requirement "is for the benefit of the
defendant and is not intended to cause a dismissal of the indictment, but simply to
provide a means by which he can be properly informed without danger to the
prosecution." Therefore, the last sentence is added mitigating the effect of error in
or omission of the citation.

La. Code Crim. P. art. 464, Comment (c).
- 28 -

be warranted here, because any suggestion that petitioner was mislead as to the nature of the charge
against him beggars belief. He clearly had fair notice of the charge and an adequate opportunity to
mount a defense to that charge.
For these reasons, this Court has no basis for finding that the bill of information was
so fatally defective as to deprive the trial court of jurisdiction. Accordingly, federal habeas corpus
relief clearly is not warranted with respect to these claims.
F. Ineffective Assistance of Counsel
In his seventh, eighth, and ninth claims, petitioner argues that he received ineffective
assistance of counsel. In the post-conviction proceedings, the state district judge rejected those
claims, holding:
[Petitioner] contends that he was denied effective assistance of
counsel as guaranteed by the Sixth Amendment to the United States
Constitution. Petitioner argues that counsel was ineffective because:
(1) counsel failed to investigate and question known eyewitnesses to
the incident; (2) counsel failed to object to the State's admittance the
911 tape recording and incident report; and (3) counsel failed to
object to the admittance of "other crimes evidence" presented by the
State. In Strickland v. Washington, 466 U.S. 668 (1984), the United
States Supreme Court held that the "benchmark for judging any claim
of ineffectiveness must be whether counsel's conduct so undermined
the proper functioning of the adversarial process that the trial cannot
be relied on as having produced a just result". Id. at 699. In
particular, the defendant must show that his representation fell below
an objective standard of reasonableness and that but for counsel's
errors, the result(s) of the trial would have been different. Id.
Further, it is unnecessary to address the issues of both counsel's
performance and prejudice to the defendant if the defendant makes
an inadequate showing on one of the components. State v. Serigny,
610 So.2d 857, 859-60 (La. App. 1st Cir. 1992), writ denied, 614
So.2d 1263 (La. 1993).
In petitioner's first argument, he claims that his trial counsel
was ineffective because he failed to investigate and question known
- 29 -

eyewitnesses to the incident.
Petitioner contends that an
investigation of known eyewitnesses, specifically the McDonald's
manager, would have aided the defense in rebutting the victim's
testimony at trial. However, the petitioner offers no proof that his
trial counsel failed to adequately investigate and question this
witness. Additionally, Petitioner fails to show that counsel's
representation fell below an objective standard of reasonableness or
but for counsel's errors, the end result would have been different.
Furthermore, defense counsel's decision to call or not call a witness
is a matter of trial strategy and is not per se evidence of ineffective
assistance. State v. Washington, 00-1312 (La.App. 5 Cir. 5/16/01),
788 So.2d 596, 607, writ denied, 01-1718 (La. 5/3/02), 815 So.2d 94.
Accordingly, this claim lacks merit.
Second, Petitioner asserts that trial counsel failed to object to
the State's admittance of the 911 tape recording and incident report.
Specifically, Petitioner contends that the 911 recording and incident
report that was introduced as evidence during the testimony of
Sergeant Briscoe was illegal hearsay evidence. A review of the
record shows that the 911 tape and incident report was properly
authenticated by Sergeant Briscoe from the Communications
Division of the New Orleans Police Department, the custodian of
record. Further, at trial, Sergeant Briscoe only testified as to the
tape's existence and departmental procedures and not to the contents
of the tape. Thus, Sergeant Briscoe's statements were not illegal
hearsay. Moreover, petitioner fails to show that had his trial counsel
objected and had the actual 911 operator who received the call
testified the outcome would have been any different. Accordingly,
Petitioner's claim is without merit.
Third, Petitioner asserts that trial counsel failed to object to
the admittance of "other crimes evidence" presented by the State.
Specifically, the petitioner asserts that defense counsel failed to
object to the victims' testimonies that petitioner made threatening-like
gestures and oral threats to shoot them. Petitioner contends that an
objection should have been lodged on the grounds that the
testimonies of the threats were not legally relevant to the charged
offense of purse snatching.
Generally, evidence of other crimes are inadmissible at trial
because of the danger that the trier of fact will convict the defendant
of the offense for which he is being tried based on prior criminal or
bad acts. State v. Davis, 97-0817, p. 6 (La. App. 4 Cir. 3/24/99), 735
So.2d 708, 711, writ denied, 99-1422 (La. 11/12/99), 749 So.2d 651.
However, the Louisiana Supreme Court have approved the admission
- 30 -

of other crimes evidence when it is related and intertwined with the
charged offense to such an extent that the state could not have
accurately presented its case without reference to it. State v. Boyd,
359 So.2d 931, 942 (La. 1978). The res gestae doctrine includes not
only spontaneous utterances and declarations made before or after the
commission of the crime, but also the testimony of witnesses and
police officers pertaining to what they heard or observed before,
during or after the commission of the crime, provided a continuous
chain of events is evident under the circumstances. State v. Milton,
764 So.2d 1134, 99-2092 (La.App. 4 Cir. 5/17/00); State v. Parker,
536 So.2d 459, 461-462 (La.App. 1 Cir. 1998), writ denied, 584
So.2d 670 (La. 1991).
In the present case, both victim's narrative testimony
established that all of the events leading up to the defendant's arrest
– taking of the wallet, chasing the defendant, threatening gestures and
oral threats – occurred within a short period of time. Thus, the
victims' testimonies were as much an integral part of the events
leading up to the petitioner's arrest. Moreover, trial counsel could
have made a strategic decision not to object to the evidence to avoid
emphasizing it to the jury. Such trial strategy decisions do not
establish ineffective assistance of counsel. Accordingly, this claim
is without merit.28
His related writ applications were then likewise denied by the Louisiana Fourth Circuit Court of
Appeal29 and by the Louisiana Supreme Court.30
Because an ineffective assistance of counsel claim presents a mixed question of law
and fact, this Court must defer to the state court decision rejecting petitioner's claims unless that
decision was "contrary to, or involved an unreasonable application of, clearly established Federal

28

State Rec., Vol. IV of IV, Judgment dated December 11, 2012.

29

State v. Phillips, No. 2013-K-0072 (La. App. 4th Cir. Jan. 30, 2013); State Rec., Vol. IV of

IV.
30

State ex rel. Phillips v. State, 118 So.3d 1119 (La. 2013) (No. 2013-KH-0458); State Rec.,
Vol. IV of IV.
- 31 -

law, as determined by the Supreme Court of the United States." 28 U.S.C. § 2254(d)(1); Moore v.
Cockrell, 313 F.3d 880, 881 (5th Cir. 2002). Moreover, the United States Supreme Court has
explained that, under the AEDPA, federal habeas corpus review of ineffective assistance of counsel
claims is in fact doubly deferential:
The pivotal question is whether the state court's application
of the Strickland standard was unreasonable. This is different from
asking whether defense counsel's performance fell below Strickland's
standard. Were that the inquiry, the analysis would be no different
than if, for example, this Court were adjudicating a Strickland claim
on direct review of a criminal conviction in a United States district
court. Under AEDPA, though, it is a necessary premise that the two
questions are different. For purposes of § 2254(d)(1), an
unreasonable application of federal law is different from an incorrect
application of federal law. A state court must be granted a deference
and latitude that are not in operation when the case involves review
under the Strickland standard itself.
A state court's determination that a claim lacks merit
precludes federal habeas relief so long as fairminded jurists could
disagree on the correctness of the state court's decision. Yarborough
v. Alvarado, 541 U.S. 652, 664, 124 S.Ct. 2140, 158 L.Ed.2d 938
(2004). And as this Court has explained, "[E]valuating whether a
rule application was unreasonable requires considering the rule's
specificity. The more general the rule, the more leeway courts have
in reaching outcomes in case-by-case determinations." Ibid. "[I]t is
not an unreasonable application of clearly established Federal law for
a state court to decline to apply a specific legal rule that has not been
squarely established by this Court." Knowles v. Mirzayance, 556
U.S. ____, ____, 129 S.Ct. 1411, 1413-14, 173 L.Ed.2d 251 (2009)
(internal quotation marks omitted).
Harrington v. Richter, 131 S. Ct. 770, 785-86 (2011) (citation omitted). The Supreme Court then
explained:
Surmounting Strickland's high bar is never an easy task. An
ineffective-assistance claim can function as a way to escape rules of
waiver and forfeiture and raise issues not presented at trial, and so the
Strickland standard must be applied with scrupulous care, lest
intrusive post-trial inquiry threaten the integrity of the very adversary
- 32 -

process the right to counsel is meant to serve. Even under de novo
review, the standard for judging counsel's representation is a most
deferential one. Unlike a later reviewing court, the attorney observed
the relevant proceedings, knew of materials outside the record, and
interacted with the client, with opposing counsel, and with the judge.
It is all too tempting to second-guess counsel's assistance after
conviction or adverse sentence. The question is whether an attorney's
representation amounted to incompetence under prevailing
professional norms, not whether it deviated from best practices or
most common custom.
Establishing that a state court's application of Strickland was
unreasonable under § 2254(d) is all the more difficult. The standards
created by Strickland and § 2254(d) are both highly deferential, and
when the two apply in tandem, review is doubly so. The Strickland
standard is a general one, so the range of reasonable applications is
substantial. Federal habeas courts must guard against the danger of
equating unreasonableness under Strickland with unreasonableness
under § 2254(d). When § 2254(d) applies, the question is not
whether counsel's actions were reasonable. The question is whether
there is any reasonable argument that counsel satisfied Strickland's
deferential standard.
Id. at 788 (citations omitted; emphasis added). For the following reasons, the Court finds that, under
these stringently deferential standards, it simply cannot be said that relief is warranted in the instant
case with respect to petitioner's ineffective assistance of counsel claims.
As correctly noted by the state district court, ineffective assistance of counsel claims
must be analyzed under the two-prong test set forth by the United States Supreme Court in
Strickland v. Washington, 466 U.S. 668 (1984). Specifically, a petitioner seeking relief must
demonstrate that counsel's performance was deficient and that the deficient performance prejudiced
his defense. Id. at 697. A petitioner bears the burden of proof on such a claim and "must
demonstrate, by a preponderance of the evidence, that his counsel was ineffective." Jernigan v.
Collins, 980 F.2d 292, 296 (5th Cir. 1993); see also Clark v. Johnson, 227 F.3d 273, 284 (5th Cir.
2000). If a court finds that a petitioner has made an insufficient showing as to either of the two
- 33 -

prongs of inquiry, i.e. deficient performance or actual prejudice, it may dispose of the ineffective
assistance claim without addressing the other prong. Strickland, 466 U.S. at 697.
To prevail on the deficiency prong of the Strickland test, a petitioner must
demonstrate that counsel's conduct fails to meet the constitutional minimum guaranteed by the Sixth
Amendment. See Styron v. Johnson, 262 F.3d 438, 450 (5th Cir. 2001). "Counsel's performance
is deficient if it falls below an objective standard of reasonableness." Little v. Johnson, 162 F.3d
855, 860 (5th Cir. 1998).

Analysis of counsel's performance must take into account the

reasonableness of counsel's actions in light of all the circumstances. See Strickland, 466 U.S. at 689.
"[I]t is necessary to 'judge ... counsel's challenged conduct on the facts of the particular case, viewed
as of the time of counsel's conduct.'" Lockhart v. Fretwell, 506 U.S. 364, 371 (1993) (quoting
Strickland, 466 U.S. at 690). A petitioner must overcome a strong presumption that the conduct of
his counsel falls within a wide range of reasonable representation. See Crockett v. McCotter, 796
F.2d 787, 791 (5th Cir. 1986); Mattheson v. King, 751 F.2d 1432, 1441 (5th Cir. 1985).
In order to prove prejudice with respect to trial counsel, a 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. In this context, a reasonable
probability is "a probability sufficient to undermine confidence in the outcome." Id. In making a
determination as to whether prejudice occurred, courts must review the record to determine "the
relative role that the alleged trial errors played in the total context of [the] trial." Crockett, 796 F.2d
at 793.
As to the claim that trial counsel was ineffective for failing to investigate and
question known eyewitnesses to the incident, petitioner has established neither deficient
- 34 -

performance nor prejudice. For example, petitioner has failed to offer any evidence, such affidavits
from his counsel or the eyewitnesses, proving that the eyewitnesses were not in fact interviewed (or,
alternatively, not questioned adequately if they were interviewed). Without such evidence, he has
not shown that counsel performed deficiently. Further, even if he had made that showing, he would
additionally have to prove that prejudice resulted. To make that showing, he must point to evidence
in the record demonstrating that further investigation or more vigorous questioning of the
eyewitnesses would actually have revealed additional information beneficial to the defense. See
Moawad v. Johnson, 143 F.3d 942, 948 (5th Cir. 1998); see also Brown v. Dretke, 419 F.3d 365, 375
(5th Cir. 2005); Wilson v. Cain, Civ. Action No. 06-890, 2009 WL 2163124, at *22 (E.D. La. July
16, 2009), aff'd, 641 F.3d 96 (5th Cir. 2011); Davis v. Cain, Civ. Action No. 07-6389, 2008 WL
5191912, at *10 (E.D. La. Dec. 11, 2008). Here, he has not shown that any such beneficial
information would have been revealed; rather, his assertions are entirely speculative and
unsupported by even a scintilla of evidence. Such bare speculation is insufficient to prove that
prejudice resulted from an allegedly inadequate investigation. See Thomas v. Cain, Civ. Action No.
09-4425, 2009 WL 4799203, at *9 (E.D. La. Dec. 9, 2009).
In a related claim, petitioner argues that his counsel was ineffective for failing to
subpoena the eyewitnesses who allegedly could have supported his version of the events. However,
as the United States Fifth Circuit Court of Appeals has explained:
Claims that counsel failed to call witnesses are not favored on federal
habeas review because the presentation of witnesses is generally a
matter of trial strategy and speculation about what witnesses would
have said on the stand is too uncertain. For this reason, we require
petitioners making claims of ineffective assistance based on counsel's
failure to call a witness to demonstrate prejudice by naming the
witness, demonstrating that the witness was available to testify and
- 35 -

would have done so, setting out the content of the witness's proposed
testimony, and showing that the testimony would have been favorable
to a particular defense. This requirement applies to both uncalled lay
and expert witnesses.
Woodfox v. Cain, 609 F.3d 774, 808 (5th Cir. 2010) (citations, quotation marks, and brackets
omitted; emphasis added); accord Day v. Quarterman, 566 F.3d 527, 538 (5th Cir. 2009) ("[T]o
prevail on an ineffective assistance claim based on counsel's failure to call a witness, the petitioner
must name the witness, demonstrate that the witness was available to testify and would have done
so, set out the content of the witness's proposed testimony, and show that the testimony would have
been favorable to a particular defense."). Here, petitioner presented no evidence in the state postconviction proceedings, such as affidavits from uncalled eyewitnesses, demonstrating that they
would have testified in a manner beneficial to the defense. Therefore, he clearly failed met his
burden with respect to this claim. See, e.g., United States v. Cockrell, 720 F.2d 1423, 1427 (5th Cir.
1983) (courts view "with great caution claims of ineffective assistance of counsel when the only
evidence of a missing witness's testimony is from the defendant"); Buniff v. Cain, Civ. Action No.
07-1779, 2011 WL 2669277, at *3 (E.D. La. July 7, 2011); Anthony v. Cain, Civ. Action No.
07-3223, 2009 WL 3564827, at *8 (E.D. La. Oct. 29, 2009) ("This Court may not speculate as to
how such witnesses would have testified; rather, a petitioner must come forward with evidence, such
as affidavits from the uncalled witnesses, on that issue."); Combs v. United States, Nos.
3:08-CV-0032 and 3:03-CR-0188, 2009 WL 2151844, at *10 (N.D. Tex. July 10, 2009) ("Unless
the movant provides the court with affidavits, or similar matter, from the alleged favorable witnesses
suggesting what they would have testified to, claims of ineffective assistance of counsel fail for lack
of prejudice."); Harris v. Director, TDCJ-CID, No. 6:06cv490, 2009 WL 1421171, at *7 (E.D. Tex.

- 36 -

May 20, 2009) ("Failure to produce an affidavit (or similar evidentiary support) from the uncalled
witness is fatal to the claim of ineffective assistance.").
Petitioner likewise did not prove his claims that counsel was ineffective for failing
to object to (1) the State's admittance of the 911 recording and related incident sheet and (2) the
"other crimes" testimony. It has been noted:
Generally speaking, a failure to object, standing alone, does
not rise to the level of constitutionally deficient performance. In
cases where an accused complains that counsel was ineffective
because he did not object to something ..., the courts grant significant
deference, as such actions fall squarely within the ambit of trial
strategy.
Rios-Delgado v. United States, 117 F. Supp. 2d 581, 589 (W.D. Tex. 2000) (quotation marks
omitted); accord Burnett v. Collins, 982 F.2d 922, 930 (5th Cir. 1993); Forman v. Cain, Civ. Action
No. 07-4200, 2008 WL 1746710, at *7 (E.D. La. Apr. 14, 2008). Moreover, the United States
Supreme Court has clearly held:
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 evaluate the conduct from counsel's perspective at the
time. Because of the difficulties inherent in making the evaluation,
a court must indulge a strong presumption that counsel's conduct
falls within the wide range of reasonable professional assistance;
that is, the defendant must overcome the presumption that, under the
circumstances, the challenged action might be considered sound trial
strategy.

- 37 -

Strickland, 466 U.S. at 689 (citation and quotation marks omitted; emphasis added). In the instant
case, petitioner essentially argues that the failure to object to the evidence in question was so
wrongheaded that the state court's decision deferring to counsel's strategic choice on this issue was
necessarily unreasonable. For the following reasons, the undersigned simply cannot agree.
As to counsel's failure to object to the 911 recording and related incident sheet, the
state courts found that those items did not in fact constitute hearsay evidence under state law. As
already noted, state courts are the final authority on the correct interpretations of state law, and this
federal court is not permitted to second-guess their conclusions on such matters. Moreover, to the
extent that petitioner is separately arguing that the admission of the evidence violated his rights
under the federal Confrontation Claus, that contention also fails. For the reasons discussed later in
this opinion, there was no Confrontation Clause violation.
Because the evidence was not hearsay and did not violate the federal Confrontation
Clause, counsel was not ineffective for failing to object to it on those bases. Clark v. Collins, 19
F.3d 959, 966 (5th Cir. 1994) ("Failure to raise meritless objections is not ineffective lawyering; it
is the very opposite."); see also United States v. Kimler, 167 F.3d 889, 893 (5th Cir. 1999) ("An
attorney's failure to raise a meritless argument ... cannot form the basis of a successful ineffective
assistance of counsel claim because the result of the proceeding would not have been different had
the attorney raised the issue.").
Additionally, in any event, the Court notes that petitioner alleges that the recording
was largely unintelligible when played for the jury and that the incident sheet did not contain any
information indicating that a crime had actually been reported or committed. If those allegations
are true, that would seem to harm rather than aid petitioner's claim. If, as petitioner suggests, the
- 38 -

evidence was not in fact inculpatory, he does not explain, and this Court cannot surmise, how its
admission prejudiced the defense.
Lastly, as to the contention that counsel was ineffective for failing to object to the
testimony that petitioner threatened the victims (which petitioner refers to as "other crimes"
evidence), that claim fares no better. As noted, the state courts found that the testimony was proper
res gestae evidence under state law, and, again, it is not proper for a federal court to second-guess
the state courts' interpretation of state law.31 Because petitioner has not established that the

31

Even if such review were allowed, this Court would agree that the testimony at issue was
properly admitted under state law. The Louisiana Supreme Court has explained the admissibility
of such evidence in the state courts, noting:
This Court has long approved of the introduction of other
crimes evidence, both under the provisions of former R.S. 15:448
relating to res gestae evidence and as a matter of integral act
evidence under La.C.E. art. 404(B), "when it is related and
intertwined with the charged offense to such an extent that the state
could not have accurately presented its case without reference to it."
State v. Brewington, 601 So.2d 656, 657 (La. 1992). This doctrine
encompasses "not only spontaneous utterances and declarations made
before and after commission of the crime but also testimony of
witnesses and police officers pertaining to what they heard or
observed before, during, or after the commission of the crime if the
continuous chain of events is evident under the circumstances." State
v. Molinario, 383 So.2d 345, 350 (La. 1980). We have required a
close connexity between the charged and uncharged conduct to insure
that "the purpose served by admission of other crimes evidence is not
to depict the defendant as a bad man, but rather to complete the story
of the crime on trial by proving its immediate context of happenings
near in time and place." State v. Haarala, 398 So.2d 1093, 1098 (La.
1981) (emphasis added); see also 1 McCormick on Evidence, § 190,
p. 799 (4th ed., John William Strong, ed., 1992) (other crimes
evidence may be admissible "[t]o complete the story of the crime on
trial by placing it in the context of nearby and nearly
contemporaneous happenings.") (footnote omitted). The res geaste
[sic] or integral act doctrine thus "reflects the fact that making a case
- 39 -

testimony was improper, he cannot show that counsel was ineffective for failing to make a meritless
objection to its admission.
In summary, petitioner has failed to demonstrate that the state court decisions
rejecting his ineffective assistance of counsel claims were contrary to, or involved an unreasonable
application of, clearly established federal law, as determined by the Supreme Court of the United
States. Accordingly, utilizing the AEDPA's "doubly deferential" standards of review applicable to
such claims, this Court should likewise deny relief.
G. Hearsay/Confrontation Clause
Petitioner's tenth claim is the that recording of a 911 call and related incident sheet
were wrongly admitted in violation of state evidence law and the federal Confrontation Clause. In
the post-conviction proceedings, the state district court did not separately rule on this claim; rather,
in ruling on the related ineffective assistance discussed above, the court simply noted that the
recording was not inadmissible hearsay evidence.32
with testimony and tangible things not only satisfies the formal
definition of an offense, but tells a colorful story with descriptive
richness." Old Chief v. United States, 519 U.S. 172, 186, 117 S.Ct.
644, 653, 136 L.Ed.2d 574 (1997). The test of integral act evidence
is therefore not simply whether the state might somehow structure its
case to avoid any mention of the uncharged act or conduct but
whether doing so would deprive its case of narrative momentum and
cohesiveness, "with power not only to support conclusions but to
sustain the willingness of jurors to draw the inferences, whatever
they may be, necessary to reach an honest verdict." Id.
State v. Colomb, 747 So.2d 1074, 1075-76 (La. 1999) (emphasis added). Evidence, such as that at
issue here, which explains the sequence of events to the jury is relevant and admissible under the
res gestae doctrine. See, e.g., State v. Senegal, 19 So.3d 623, 627 (La. App. 3rd Cir. 2009); State
v. Clements, 519 So.2d 236, 238 (La. App. 5th Cir. 1988); State v. Johnson, 440 So.2d 838, 842 (La.
App. 2nd Cir. 1983).
32

State Rec., Vol. IV of IV, Judgment dated December 11, 2012, p. 2.
- 40 -

Again, it is not the role of this Court to second-guess the state court's interpretation
and application of state law regarding hearsay evidence. Simply put, "[i]n habeas actions, [a federal
court] does not sit to review the mere admissibility of evidence under state law." Little v. Johnson,
162 F.3d 855, 862 (5th Cir. 1998). Therefore, to the extent that petitioner is arguing that the state
courts misapplied state law regarding hearsay evidence, his claim is not reviewable in this federal
proceeding.
That, however, does not end the matter, because petitioner additionally argues that
the admission of the evidence also violated federal law, i.e. the federal Confrontation Clause.
"Although the protections of the Confrontation Clause and the hearsay rule overlap, they are not coextensive ...." Gochicoa v. Johnson, 118 F.3d 440, 446 (5th Cir. 1997). The United States Supreme
Court has in recent years examined in great detail the protections afforded by the federal
Confrontation Clause. The Supreme Court explained:
The Confrontation Clause of the Sixth Amendment provides:
"In all criminal prosecutions, the accused shall enjoy the right ... to
be confronted with the witnesses against him." In Crawford v.
Washington, 541 U.S. 36, 53-54, 124 S.Ct. 1354, 158 L.Ed.2d 177
(2004), we held that this provision bars "admission of testimonial
statements of a witness who did not appear at trial unless he was
unavailable to testify, and the defendant had had a prior opportunity
for cross-examination." A critical portion of this holding ... is the
phrase "testimonial statements." Only statements of this sort cause
the declarant to be a "witness" within the meaning of the
Confrontation Clause. See id., at 51, 124 S.Ct. 1354. It is the
testimonial character of the statement that separates it from other
hearsay that, while subject to traditional limitations upon hearsay
evidence, is not subject to the Confrontation Clause.
Davis v. Washington, 547 U.S. 813, 821 (2006). The Supreme Court continued:
Statements are nontestimonial when made in the course of police
interrogation under circumstances objectively indicating that the
primary purpose of the interrogation is to enable police assistance to
- 41 -

meet an ongoing emergency. They are testimonial when the
circumstances objectively indicate that there is no such ongoing
emergency, and that the primary purpose of the interrogation is to
establish or prove past events potentially relevant to later criminal
prosecution.
Id. at 822.
Interestingly, Davis also involved a Confrontation Clause claim based on the
admission of a recording of 911 call. In considering the claim, the Supreme Court noted: "If 911
operators are not themselves law enforcement officers, they may at least be agents of law
enforcement when they conduct interrogations of 911 callers. For purposes of this opinion (and
without deciding the point), we consider their acts to be acts of the police." Id. at 823. The Supreme
Court then went on to hold that statements made in a 911 call seeking immediate police assistance
generally are not "testimonial" in nature and, therefore, pose no Confrontation Clause problems.
The Supreme Court explained:
[The 911 caller] simply was not acting as a witness; she was not
testifying. What she said was not "a weaker substitute for live
testimony" at trial, United States v. Inadi, 475 U.S. 387, 394, 106
S.Ct. 1121, 89 L.Ed.2d 390 (1986), like Lord Cobham's statements
in Raleigh's Case, 2 How. St. Tr. 1 (1603), or Jane Dingler's ex parte
statements against her husband in King v. Dingler, 2 Leach 561, 168
Eng. Rep. 383 (1791), or Sylvia Crawford's statement in Crawford.
In each of those cases, the ex parte actors and the evidentiary
products of the ex parte communication aligned perfectly with their
courtroom analogues. [The 911 caller's] emergency statement does
not. No "witness" goes into court to proclaim an emergency and
seek help.
Davis, 547 U.S. at 828.
In the instant case, petitioner provides no basis for distinguishing Davis, and,
therefore, he has not established that there was any Confrontation Clause violation. Accordingly,
this claim should be denied.
- 42 -

H. Suggestive Identification
Petitioner's eleventh claim is that the trial court erred by admitting an unduly
suggestive identification. The state argues that this claim is procedurally barred. The state is
correct.
As previously noted, the United States Fifth Circuit Court of Appeals has held:
A claim that a state has withheld a federal right from a person
in its custody may not be reviewed by a federal court if the last state
court to consider that claim expressly relied on a state ground for
denial of relief that is both independent of the merits of the federal
claim and an adequate basis for the court’s decision. To satisfy the
"independent" and "adequate" requirements, the dismissal must
"clearly and expressly" indicate that it rests on state grounds which
bar relief, and the bar must be strictly or regularly followed by state
courts, and applied to the majority of similar claims. This rule
applies to state court judgments on both substantive and procedural
grounds.
Finley v. Johnson, 243 F.3d 215, 218 (5th Cir. 2001) (citations omitted).
Here, the state courts clearly rejected petitioner's claim on procedural grounds. In
the post-conviction proceedings, the state district held: "Petitioner asserts that this Court abused its
discretion by allowing the State to submit 'suggestive identification' of the petitioner during the
proceedings. However, Petitioner's claim is one that should have been raised on appeal. La.C.Cr.P.
Art. 930.4."33 Without additional reasons assigned, his related writ applications were then likewise
denied by the Louisiana Fourth Circuit Court of Appeal34 and by the Louisiana Supreme Court.35

33

State Rec., Vol. IV of IV, Judgment dated December 11, 2012, p. 3.

34

State v. Phillips, No. 2013-K-0072 (La. App. 4th Cir. Jan. 30, 2013); State Rec., Vol. IV of

IV.
35

State ex rel. Phillips v. State, 118 So.3d 1119 (La. 2013) (No. 2013-KH-0458); State Rec.,
Vol. IV of IV.
- 43 -

Federal courts have repeatedly and consistently held that Louisiana's rule that a claim
regarding an appealable issue is waived if not asserted on direct appeal is an independent and
adequate state court rule to support a procedural bar in federal court. See, e.g., Hurd v. Cain, Civ.
Action No. 09-3112, 2009 WL 3063354, at *7 (E.D. La. Sept. 23, 2009); Simms v. Cain, Civ. Action
No. 07-966, 2008 WL 624073, at *27 (E.D. La. Mar. 4, 2008); Dorsey v. Louisiana, Civ. Action No.
07-036, 2007 WL 1747014, at *4 (E.D. La. June 15, 2007); Hill v. Cooper, Civ. Action No. 04-2588,
2007 WL 458207, at *7 (E.D. La. Feb. 8, 2007); Stevenson v. Cain, Civ. Action No. 06-1244, 2006
WL 2850167, at *14 (E.D. La. Oct. 4, 2006).
Again, where, as here, the state courts have rejected a petitioner's claim based on an
independent and adequate state procedural rule, "federal habeas review is barred unless the
petitioner demonstrates either cause and prejudice or that a failure to address the claim will result
in a fundamental miscarriage of justice." Hughes v. Johnson, 191 F.3d 607, 614 (5th Cir. 1999).
In the instant case, petitioner demonstrates neither.
As already explained, "[t]o establish cause for a procedural default, there must be
something external to the petitioner, something that cannot fairly be attributed to him." Johnson v.
Puckett, 176 F.3d 809, 816 (5th Cir. 1999) (quotation marks omitted). Objective factors that can
constitute cause include interference by officials that makes compliance with the state procedural
rule impracticable, a showing that the factual or legal basis for the claim was not reasonably
available to counsel, and ineffective assistance of counsel. Romero v. Collins, 961 F.2d 1181, 1183
(5th Cir. 1992). Here, petitioner has not argued, much less established, cause for this procedural
default. "Absent a showing of cause, it is not necessary for the court to consider whether there is
actual prejudice." Martin v. Maxey, 98 F.3d 844, 849 (5th Cir. 1996).

- 44 -

Because petitioner has not met the "cause and prejudice" test, this Court should
consider his claim only if the application of the procedural bar would result in a "fundamental
miscarriage of justice." In this context, to show that there would be a "fundamental miscarriage of
justice," a petitioner must make "a persuasive showing that he is actually innocent of the charges
against him. Essentially, the petitioner must show that, as a factual matter, he did not commit the
crime for which he was convicted." Finley v. Johnson, 243 F.3d 215, 220 (5th Cir. 2001) (citations
omitted). Petitioner has not made that showing in this case for the following reasons.
As already noted previously in this opinion, the evidence of petitioner's guilt was
constitutionally sufficient to support his conviction. Moreover, for an actual innocence claim to be
credible, "such a claim requires petitioner to support his allegations of constitutional error with new
reliable evidence – whether it be exculpatory scientific evidence, trustworthy eyewitness accounts,
or critical physical evidence – that was not presented at trial. Because such evidence is obviously
unavailable in the vast majority of cases, claims of actual innocence are rarely successful." Schlup
v. Delo, 513 U.S. 298, 324 (1995). Here, petitioner points to no "new" evidence whatsoever.
Rather, he simply argues that the videotape of the crime supports his contention that the stolen
wallet was not in fact in the "immediate control" of victim at the time of the crime as required to
support a purse snatching conviction. However, that videotape is not "new evidence"; it was
introduced at trial.36 Therefore, he clearly has not made the showing required for an actual
innocence claim, i.e. that "no reasonable juror would have found [him] guilty" in light of "new
evidence." Schlup, 513 U.S. at 329.

36

State Rec., Vol. III of IV, transcript of October 19, 2009, pp. 15-16 and 41.
- 45 -

For these reasons, this claim is procedurally barred and should not be considered by
this Court.
RECOMMENDATION
Accordingly, IT IS RECOMMENDED that the petition for federal habeas corpus
relief filed by Henry Phillips be DISMISSED WITH PREJUDICE.
A party’s failure to file written objections to the proposed findings, conclusions, and
recommendation in a magistrate judge's report and recommendation within fourteen (14) days after
being served with a copy shall bar that party, except upon grounds of plain error, from attacking on
appeal the unobjected-to proposed factual findings and legal conclusions accepted by the district
court, provided that the party has been served with notice that such consequences will result from
a failure to object. 28 U.S.C. § 636(b)(1); Douglass v. United Services Auto. Ass'n, 79 F.3d 1415,
1430 (5th Cir. 1996) (en banc).37
New Orleans, Louisiana, this eighth day of September, 2014.

SALLY SHUSHAN
UNITED STATES MAGISTRATE JUDGE

37

Douglass referenced the previously applicable ten-day period for the filing of objections.
Effective December 1, 2009, 28 U.S.C. § 636(b)(1) was amended to extend that period to fourteen
days.
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