Williams v. Cain et al

Filing 20

ORDER ADOPTING REPORT AND RECOMMENDATIONS 18 , 12 . IT IS HEREBY ORDERED that Petitioners objections are OVERRULED. IT IS FURTHER ORDERED that the Court ADOPTS the Magistrate Judge's recommendation and Petitioner Kevin Williams's petition for issuance for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 is DENIED and DISMISSED WITH PREJUDICE. Signed by Judge Nannette Jolivette Brown on 8/10/2017.(cms)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA

KEVIN WILLIAMS

CIVIL ACTION

VERSUS

NO. 14-2288

N. BURL CAIN, WARDEN

SECTION “G”(4)

ORDER AND REASONS
Before the Court are Petitioner Kevin Williams’s (“Petitioner”) objections1 to the Report
and Recommendation of the United States Magistrate Judge assigned to the case.2 Petitioner, a
state prisoner incarcerated at the Louisiana State Penitentiary in Angola, Louisiana, filed a petition
pursuant to 28 U.S.C. § 2254 alleging several grounds of relief based on purported errors in the
trial court’s evidentiary rulings and ineffective assistance of counsel claims.3 On March 30, 2015,
the Magistrate Judge recommended that Petitioner’s claims be dismissed as time-barred.4
Petitioner objected, arguing that his petition was timely filed because the Louisiana Supreme Court
granted him an extension to file his writ application on direct appeal.5 On November 13, 2015, this
Court issued an Order sustaining Petitioner’s objections and finding that the petition was timely.6
Accordingly, the Court referred the matter to the Magistrate Judge to prepare another Report and

1

Rec. Doc. 19.

2

Rec. Doc. 18.

3

Rec. Doc. 1.

4

Rec. Doc. 12 at 8.

5

Rec. Doc. 13 at 2.

6

Rec. Doc. 15.

Recommendation.7 The Magistrate Judge subsequently recommended that the petition be
dismissed on the merits.8 Petitioner objects to that recommendation, arguing that he has pointed to
enough record evidence to show that he is entitled to habeas relief.9 After reviewing the petition,
the Magistrate Judge’s Report and Recommendation, the objections, the record, and the applicable
law, the Court will overrule Petitioner’s objections, adopt the Magistrate Judge’s recommendation
and dismiss this action with prejudice.
I. Background
A.

Factual Background
On October 23, 2008, the Grand Jury indicted Petitioner on one count of second degree

murder.10 On January 27, 2010, a jury in the Twenty-Second Judicial District Court for the Parish
of St. Tammany found Petitioner guilty of second degree murder.11 On March 1, 2010, the trial
court sentenced Petitioner to life in prison at hard labor without the benefit of parole, probation,
or suspension of sentence.12
The Louisiana First Circuit Court of Appeal affirmed Petitioner’s conviction and sentence
on February 11, 2011.13 Petitioner submitted a pro se request for rehearing on February 23, 2011,14
which was denied on March 28, 2011.15 Petitioner filed a writ application with the Louisiana
7

Id.

8

Rec. Doc. 18.

9

Rec. Doc. 15.

10

State Rec., Vol. I of VI, Bill of Indictment.

11

State Rec., Vol. I of VI, Jury Verdict.

12

State Rec., Vol. I of VI, Sentencing Minutes, March 1, 2010.

13

State v. Williams, No. 10-1392 (La. App. 1 Cir. 02/11/11); State Rec., Vol. IV of VI.

14

State Rec., Vol. IV of VI, Request for Rehearing, filed February 23, 2011.

15

State v. Williams, No. 2010-KA-1392 (La. App. 1 Cir. 03/28/11); State Rec., Vol. VI of VI.

2

Supreme Court on July 13, 2011.16 On March 9, 2012, the Louisiana Supreme Court denied
Petitioner’s application, without written reasons.17
Petitioner filed his application for post-conviction relief with the state trial court on March
21, 2013.18 On June 10, 2013, the state trial court denied Petitioner’s application on the merits.19
Petitioner sought supervisory writs before the Louisiana First Circuit, which were denied without
written reasons on November 4, 2013.20 On December 3, 2013, Petitioner filed a writ application
with the Louisiana Supreme Court.21 The Louisiana Supreme Court denied Petitioner’s writ
application on July 31, 2014.22
Petitioner filed this federal habeas petition on October 3, 2014.23 Petitioner raises the
following grounds for relief: (1) the state trial court erred when it allowed the State to play an
enhanced recording of the confession to the jury without a hearing pursuant to Daubert v. Merill
Dow Pharmaceuticals, Inc., and the appellate court erred in denying relief on the issue; (2) the
state courts erred in denying the motion to suppress the confession because Petitioner was not
advised he was being questioned about the murder; (3) his trial counsel was ineffective when he
presented hearsay testimony from Detective Robert Blount and erroneously mentioned a crowbar
during his questioning of the deputy coroner; (4) his trial counsel was ineffective when he failed

16

State Rec., Vol. V of VI, Petition for Writ of Certiorari, dated July 13, 2011.

17

State ex rel. Williams v. State, No. 2011-KH-1028 (La. 03/09/12). State Rec., Vol. V of VI.

18

State Rec., Vol. IV of VI, Application for Post-Conviction Relief, filed March 21, 2013.

19

State Rec., Vol. IV of VI, Order and Reasons for Judgment of the Twenty-Second Judicial District Court,
June 10, 2013.
20

State v. Williams, No. 2013-KW-1232 (La. App. 1 Cir. 11/04/13). State Rec., Vol. V of VI.

21

State Rec., Vol. V of VI, Writ Application, filed December 3, 2013.

22

State ex rel. Williams v. State, No. 2013-KH-2851 (La. 07/31/14). State Rec., Vol. V of VI.

23

Rec. Doc. 1.

3

to object to the prosecutor’s indirect reference to Petitioner’s failure to testify during closing
arguments; (5) his trial counsel was ineffective when he failed to challenge the sufficiency of the
evidence to support a guilty verdict; and (6) his trial counsel was ineffective when he did not
prepare for trial where he failed to articulate the reasonable doubt theory to the jury, never
advanced a theory of innocence or new exculpatory evidence, failed to object to perjured testimony
from state witnesses, and did not complete discovery.24
In its response to the petition, the State asserted that Petitioner’s habeas petition is
untimely.25 Alternatively, the State argued that Petitioner’s first claim was in procedural default
because it was rejected by the state courts as procedurally barred under Louisiana Code of Criminal
Procedure article 841.26 The State contended that Petitioner’s second claim was not properly
exhausted because Petitioner did not raise the same issue in state court.27 The State also contended
that claims three through six were in procedural default having been procedurally barred as
untimely on state post-conviction review under Louisiana Code Criminal Procedure article 930.8.28

Id. The Court notes that the order in which Petitioner’s claims are addressed herein differs from the order
in which the claims were laid out in its November 13, 2015 Order. See Rec. Doc. 15 at 3–4 (“Petitioner argues that
his counsel’s performance was ineffective because: (1) his counsel elicited hearsay testimony during crossexamination; (2) his counsel failed to object to certain closing arguments presented by the State; (3) his counsel failed
to challenge the sufficiency of the evidence; and (4) his counsel failed to adequately prepare for trial. Petitioner also
contends the trial court erred in allowing the jury to hear purportedly unreliable scientific evidence and in denying his
motion to suppress certain statements.”). However, for ease of reference, the Court addresses each of Petitioner’s
claims herein in the same order that they were addressed in the Magistrate Judge’s second Report and
Recommendation.
24

25

Rec. Doc. 11 at 2–3.

26

Id. at 6.

27

Id. at 4.

28

Id. at 7.

4

On March 30, 2015, the Magistrate Judge recommended that Petitioner’s claims be
dismissed as time-barred.29 Petitioner objected, arguing that his petition is timely filed because the
Louisiana Supreme Court granted him an extension to file his writ application on direct appeal.30
On November 13, 2015, the Court issued an Order sustaining Petitioner’s objections and finding
that the petition was timely.31 Accordingly, the Court referred the matter to the Magistrate Judge
to prepare another Report and Recommendation.32
B.

Report and Recommendation Findings
The Magistrate Judge recommends that the Court dismiss Petitioner’s claims with

prejudice.33 The Magistrate Judge noted that Petitioner’s first claim, challenging the introduction
or playing of the video of his confession at trial without a Daubert hearing, was barred from review
on appeal by the Louisiana First Circuit for lack of contemporaneous objection as required under
Louisiana Code of Criminal Procedure article 841.34 The Magistrate Judge stated that generally a
federal court will not review a question of federal law decided by a state court if the decision of
that state court rests on a state law ground that is both independent of the merits of the federal
claim and adequate to support that judgment.35 Here, the Magistrate Judge found that a
“contemporaneous objection” rule is an “independent and adequate” state procedural ground

29

Rec. Doc. 12 at 8.

30

Rec. Doc. 13 at 2.

31

Rec. Doc. 15.

32

Id.

33

Rec. Doc. 18 at 37.

34

Id. at 8.

35

Id. at 9 (citing Coleman v. Thompson, 501 U.S. 722, 731–32 (1991)).

5

which bars federal habeas review.36 Moreover, the Magistrate Judge determined that Petitioner had
not established one of the exceptions to his procedural default.37 Specifically, the Magistrate Judge
found Petitioner had not shown that some external factor to the defense impeded his efforts to
comply with the state’s procedural rule.38 The Magistrate Judge also found that Petitioner had not
shown that a fundamental miscarriage of justice would occur if the merits of his claim were not
reviewed because Petitioner did not present any claim to suggest his actual innocence.39
Accordingly, the Magistrate Judge found that Petitioner’s first claim was procedurally barred.40
The Magistrate Judge addressed Petitioner’s remaining claims on the merits.41 The
Magistrate Judge noted that AEDPA’s deferential standards of review do not apply where the
claims were not adjudicated on the merits by the state courts.42 Here, the state courts dismissed
Petitioner’s claims as time-barred and did not reach the merits.43 Accordingly, the Magistrate
Judge applied a de novo standard of review.44
The Magistrate Judge first addressed the merits of Petitioner’s claim that the state courts
erred in denying the motion to suppress his confession.45 Petitioner argued that he only thought he
was being questioned about the stolen checks, not the murder, and that the inculpatory statement

36

Id. at 11 (citing Wainwright v. Sykes, 433 U.S. 72, 87-88 (1977)).

37

Id. at 12.

38

Id. at 13 (citing Murray v. Carrier, 477 U.S. 478, 488 (1986)).

39

Id. at 14–15 (citing Hogue v. Johnson, 131 F.3d 466, 497 (5th Cir. 1997)).

40

Id. at 15.

41

Id. at 15–36.

42

Id. at 17 (citing 28 U.S.C. § 2254(d); Henderson v. Cockrell, 333 F.3d 592, 597 (5th Cir. 2003)).

43

Id. at 8.

44

Id. at 17 (citing Henderson, 333 F.3d at 598).

45

Id. at 18.

6

was used in violation of his right to privacy because he thought he was alone when he made the
statement.46 The Magistrate Judge noted that Petitioner only raised the issue of his right to privacy
before the state courts, and the Louisiana First Circuit found that Petitioner had no reasonable
expectation of privacy because he had been advised of his constitutional rights, waived his rights,
and was being interrogated in a police station with the recording device on the table in front of
him.47 The Magistrate Judge noted that on federal habeas review the Court must presume that the
factual determinations made by the state courts were correct, and Petitioner had not pointed to
anything in the record to support his assertion that he was misinformed when he waived his
rights.48 The Magistrate Judge determined that it was not reasonable for Petitioner to expect a right
to privacy in his statement made while in a police interrogation room where he knew he was being
questioned, and recorded, about his criminal activity.49 Accordingly, the Magistrate Judge found
that Petitioner had not established that the denial of relief on the privacy issue was contrary to, or
an unreasonable application of, Supreme Court law.50 Similarly, the Magistrate Judge determined
that Petitioner had not established that he was unaware when he waived his rights that he could be
questioned about the murder.51
Next, the Magistrate Judge addressed Petitioner’s ineffective assistance of counsel
claims.52 The Magistrate Judge found Petitioner’s argument that his counsel failed to object to the

46

Id.

47

Id. at 18, 22.

48

Id. at 22.

49

Id. at 23 (citing United States v. Swift, 623 F.3d 618, 623 (8th Cir. 2010)).

50

Id.

51

Id.

52

Id. at 23–37.

7

hearsay testimony of Detective Robert Blount unavailing.53 Petitioner argued that his counsel
should have objected to Detective Blount’s testimony that during an interview with an inmate,
Andrew Wetzel, Detective Blount learned that Petitioner told Wetzel that he used a crowbar to kill
the victim.54 The Magistrate Judge found that Detective Blount did not repeat the statement to
establish its veracity, but instead Detective Blount repeated the statement to demonstrate why he
investigated the notion that a crowbar was used to kill the victim.55 Therefore, the Magistrate Judge
found that there was arguably no reason to object to this testimony on hearsay grounds.56
Moreover, the Magistrate Judge noted that defense counsel used that testimony to support his
argument that the State’s witnesses were not credible because Wetzel had 15 felony convictions.57
Accordingly, the Magistrate Judge found that the decision not to object was not deficient
performance as it constituted a reasonable strategy.58
The Magistrate Judge also found Petitioner’s claim, that his counsel erroneously mentioned
a crowbar during his questioning of the deputy coroner, unavailing.59 The Magistrate Judge noted
that the prosecutor, not defense counsel, first mentioned the crowbar to the deputy coroner.60
Therefore, the Magistrate Judge found that defense counsel’s decision to ask questions about the
crowbar on cross examination was not deficient performance.61
53

Id. at 26.

54

Id.

55

Id. at 27.

56

Id.

57

Id. at 28.

58

Id. at 28–29.

59

Id. at 29.

60

Id.

61

Id. at 29–30.

8

Next, the Magistrate Judge addressed Petitioner’s argument that his counsel performed
ineffectively in failing to object to the prosecutor’s indirect reference to Petitioner’s failure to
testify at trial.62 During his closing argument, the prosecutor stated that no one had contradicted
the State’s evidence.63 The Magistrate Judge noted that comments by a prosecutor on a defendant’s
exercising his Fifth Amendment right not to testify are constitutionally impermissible.64 Here, the
Magistrate Judge determined that the prosecutor’s closing argument did not violate due process or
Petitioner’s Fifth Amendment rights because there was no clear showing that the prosecutor
intended to comment on Petitioner’s failure to testify or that the jury took the comments by the
prosecutor to have such a meaning.65 Therefore, the Magistrate Judge reasoned that defense
counsel’s failure to object to this statement was not deficient and that Petitioner was not prejudiced
by the failure to object.66
Finally, the Magistrate Judge addressed Petitioner’s claims that his counsel did not
investigate and prepare for trial and that counsel failed to challenge the sufficiency of the evidence
to support the guilty verdict.67 The Magistrate Judge noted that reading of the record and trial
transcript negated Petitioner’s conclusory assertions that counsel failed to prepare or put the State’s
case to a legitimate challenge.68 The Magistrate Judge found that Petitioner failed to point to any
inculpatory or beneficial information which further investigation could have revealed, and

62

Id. at 30.

63

Id.

64

Id. (citing Griffin v. California, 380 U.S. 609, 615 (1965)).

65

Id.

66

Id. at 32.

67

Id.

68

Id. at 33.

9

Petitioner had not identified any particular witnesses that could have testified.69 Further, Petitioner
failed to establish a need for counsel to call expert witnesses at trial or that experts could be found
whose testimony would have contradicted the State’s evidence.70 The Magistrate Judge found that
the defense’s cross-examination demonstrated that counsel was well prepared.71 Therefore, the
Magistrate Judge reasoned that defense counsel’s performance was not deficient and that Petitioner
was not prejudiced by his counsel’s performance.72
II. Objections
A.

Petitioner’s Objections
Petitioner filed timely objections to the Magistrate Judge’s Report and Recommendation.73

Petitioner argues that the Magistrate Judge erred in recommending that his petition be dismissed
with prejudice.74 Petitioner contends that he is acting pro se and should not be held to the standards
of a professional attorney.75 Petitioner argues that he has stated viable claims and pointed to enough
record evidence to show that he is entitled to federal habeas relief.76
Petitioner argues that the Magistrate Judge erred in finding that his first claim is
procedurally defaulted.77 Petitioner asserts that ineffective assistance of counsel is adequate to
establish cause for his procedural default because “[a] procedural default by trial counsel [is] not
69

Id. at 33–34.

70

Id. at 34–35.

71

Id. at 36.

72

Id. at 32.

73

Rec. Doc. 19.

74

Id. at 1.

75

Id. at 2.

76

Id.

77

Id.

10

imputable to a Petitioner.”78 Petitioner contends that the Sixth and Fourteenth Amendments to the
United States Constitution guarantee the criminally accused a meaningful opportunity to present a
complete defense.79 Accordingly, Petitioner requests that the Court grant him habeas relief.80
B.

State’s Opposition
The State of Louisiana did not file a brief in opposition to Petitioner’s objections despite

receiving electronic notice of the filing.
III. Standard of Review
A.

Standard of Review of the Magistrate Judge’s Report and Recommendation
In accordance with Local Rule 73.2, this case was referred to the Magistrate Judge to

provide a Report and Recommendation. The District Judge “may accept, reject, or modify the
recommended disposition” of a Magistrate Judge on a dispositive matter.81 The District Judge must
“determine de novo any part of the [Report and Recommendation] that has been properly objected
to.”82 The District Court’s review is limited to plain error for parts of the report which are not
properly objected to.83
B.

Standard of Review Under the AEDPA
Following the enactment of Antiterrorism and Effective Death Penalty Act of 1996

(“AEDPA”), the standard of review used to evaluate issues presented in habeas corpus petitions

78

Id. (citing Edwards v. Carpenter, 120 S.Ct. 1587 (2000)).

79

Id. (citing State v. Dressner, 08-1366 (La. 7/6/10); 45 So.3d 127, 137).

80

Id. at 3.

81

Fed. R. Civ. P. 72(b)(3); see also 28 U.S.C. § 636(b)(1).

82

Fed. R. Civ. P. 72(b)(3).

83
See Douglass v. United Servs. Auto. Ass’n, 79 F.3d 1415, 1428–29 (5th Cir. 1996) (en banc), superseded
by statute on other grounds, 28 U.S.C. § 636(b)(1) (extending time to file objections from ten to fourteen days).

11

was revised “to ensure that state-court convictions are given effect to the extent possible under
law.”84 For questions of fact, federal courts must defer to a state court’s findings unless they are
“based on an unreasonable determination of the facts in light of the evidence presented in the State
court proceeding.”85 A state court’s determinations on mixed questions of law and fact or pure
issues of law, on the other hand, are to be upheld unless they are “contrary to, or involve[ ] an
unreasonable application of, clearly established Federal law, as determined by the Supreme Court
of the United States.”86
Regarding this standard, the U.S. Court of Appeals for the Fifth Circuit further explains:
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 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 Supreme Court and nevertheless arrives at a result different from
Supreme Court precedent. A state-court decision involves an unreasonable
application of Supreme Court precedent if the state court identifies the correct
governing legal rule from the Court’s cases but unreasonably applies it to the facts
of the particular state prisoner’s case.87
If Supreme Court case law “give[s] 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.’”88 Additionally, “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.”89

84

Bell v. Cone, 535 U.S. 685, 693 (2002).

85

28 U.S.C. § 2254(d)(2).

86

28 U.S.C. § 2254(d)(1).

87

Wooten v. Thaler, 598 F.3d 215, 218 (5th Cir. 2010) (citations and quotation marks omitted).

88

Wright v. Van Patten, 552 U.S. 120, 126 (2008) (quoting Carey v. Musladin, 549 U.S. 70, 77 (2006)).

89

Puckett v. Epps, 641 F.3d 657, 663 (5th Cir. 2011) (quotation marks omitted).

12

However, the AEDPA’s deferential standards of review apply only to claims adjudicated
on the merits by the state courts.90 Instead, claims that were not adjudicated on the merits by the
state courts are reviewed “de novo without applying AEDPA-mandated deference.”91
IV. Law and Analysis
A.

Procedural Default
Petitioner objects to the Magistrate Judge’s determination that his first claim, challenging

the introduction of an enhanced recording of his confession at trial without a Daubert hearing, is
procedurally defaulted.92 Accordingly, the Court reviews this issue de novo.93
A habeas corpus claim may not be reviewed in 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.”94 Where a state
court rejects 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.”95
In the instant case, on direct appeal, the Louisiana First Circuit concluded that Petitioner’s
Daubert claim was not preserved for appellate review because he failed to lodge a
contemporaneous objection as required by Louisiana Code of Criminal Procedure article 841(A).96

90

Henderson v. Cockrell, 333 F.3d 592, 597 (5th Cir. 2003).

91

Carty v. Thaler, 583 F.3d 244, 253 (5th Cir. 2009) (citing Henderson, 333 F.3d at 597).

92

Rec. Doc. 19 at 2.

93

Fed. R. Civ. P. 72(b)(3).

94

Finley v. Johnson, 243 F.3d 215, 218 (5th Cir. 2001).

95

Hughes v. Johnson, 191 F.3d 607, 614 (5th Cir. 1999).

96

State v. Williams, No. 10-1392 (La. App. 1 Cir. 02/11/11); State Rec. Vol. IV of VI.

13

Article 841(A) provides that “[a]n irregularity or error cannot be availed of after verdict unless it
was objected to at the time of the occurrence.”97 The Supreme Court has recognized that a
“contemporaneous-objection rule” is an “independent and adequate” state procedural ground
which bars federal habeas corpus review.98 The Fifth Circuit has also recognized that Louisiana
Code of Criminal Procedure article 841(A) is an independent and adequate state procedural rule.99
Accordingly, “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.”100
1.

Cause and Prejudice

“To establish cause for a procedural default, there must be something external to the
petitioner, something that cannot fairly be attributed to him.”101 A showing of ineffective assistance
of counsel may be one such external factor.102 “Attorney error short of ineffective assistance of
counsel, however, does not constitute cause and will not excuse a procedural default.”103
Here, Petitioner asserts that ineffective assistance of counsel is adequate to establish cause
for his procedural default because “[a] procedural default by trial counsel [is] not imputable to a
Petitioner.”104 To the extent that Petitioner’s objections could be construed to suggest that his trial

97

La. Code Crim. P. art. 841(A).

98

Wainwright v. Sykes, 433 U.S. 72, 87–88 (1977).

99

Procter v. Butler, 831 F.2d 1251, 1253 (5th Cir. 1987).

100

Hughes, 191 F.3d at 614.

101

Johnson v. Puckett, 176 F.3d 809, 816 (5th Cir. 1999) (quotation marks omitted).

102

Romero v. Collins, 961 F.2d 1181, 1183 (5th Cir. 1992).

103

Id. (quoting McCleskey v. Zant, 499 U.S. 467, 494 (1991)).

104

Rec. Doc. 19 at 2.

14

counsel was ineffective in failing to make the necessary objections to preserve his procedurally
defaulted claim, Petitioner did not raise any such claim before the state courts. As the United States
Supreme Court has recognized, a claim of ineffective assistance generally must “be presented to
the state courts as an independent claim before it may be used to establish cause for a procedural
default.”105 Therefore, Petitioner has not established cause for his procedural default.
“The failure to show ‘cause’ is fatal to the invocation of the ‘cause and prejudice’
exception, without regard to whether ‘prejudice’ is shown.”106 Because Petitioner has failed to
show an objective cause for his default, the Court need not determine whether prejudice existed.107
Moreover, Petitioner has not alleged any actual prejudice.108 Accordingly, federal habeas review
is barred unless Petitioner demonstrates that a failure to address the claim will result in a
fundamental miscarriage of justice.109
2.

Fundamental Miscarriage of Justice

To establish a fundamental miscarriage of justice, a petitioner must provide the court with
evidence that would support a “colorable showing of factual innocence.”110 When the petitioner

105

Edwards v. Carpenter, 529 U.S. 446, 452 (2000) (quoting Murray v. Carrier, 477 U.S. 478, 489 (1986)).
Moreover, to the extent that Petitioner may argue that his failure to exhaust any potential ineffective assistance of
counsel claim should be excused under the Supreme Court’s holding in Martinez v. Ryan, Petitioner has not shown
that any underlying claims of ineffective assistance of trial counsel are “substantial” because he has not demonstrated
that “any such claim has some merit.” 566 U.S. 1, 14 (2012) (“To overcome the default, a prisoner must also
demonstrate that the underlying ineffective-assistance-of-trial-counsel claim is a substantial one, which is to say that
the prisoner must demonstrate that the claim has some merit.”).
106

Hogue v. Johnson, 131 F.3d 466, 497 (5th Cir. 1997) (internal citation omitted).

107

Ratcliff v. Estelle, 597 F.2d 474, 477–78 (5th Cir. 1979) (citing Lumpkin v. Ricketts, 551 F.2d 680, 681–
82 (5th Cir. 1977)).
108

Id.

109

Hughes, 191 F.3d at 614.

110

Kuhlmann v. Wilson, 477 U.S. 436, 454 (1986). See also Murray v. Carrier, 477 U.S. 478, 496 (1986)
(“[I]n an extraordinary case, where a constitutional violation has probably resulted in the conviction of one who is
actually innocent, a federal habeas court may grant the writ even in the absence of a showing of cause for the
procedural default.”).

15

has not adequately asserted his actual innocence, the procedural default cannot be excused under
the “fundamental miscarriage of justice” exception.111 In the instant case, Petitioner does not argue
that he is actually innocent of the crime for which he was convicted. Petitioner’s procedurally
defaulted claim concerns the alleged evidentiary errors of the state trial court. He has presented no
evidence to show his actual innocence. Accordingly, on de novo review the Court concludes that
Petitioner has failed to overcome the procedural bar to his claim, challenging the introduction of
an enhanced recording of his confession at trial without a Daubert hearing.
B.

Portions of the Report and Recommendation Without Objection
Denial of the Motion to Suppress Petitioner’s Confession

1.

The Magistrate Judge recommends that the Court find that Petitioner is not entitled to relief
on his claim that the state courts erred in denying the motion to suppress his confession.112
Petitioner does not object to this determination.113 Accordingly, the Court reviews this issue for
plain error.114
The admissibility of a confession is a mixed question of law and fact.115 On federal habeas
review, the Court must respect the state court’s determination of voluntariness as long as it was
not “contrary to, or involved an unreasonable application of, clearly established Federal law, as
determined by the Supreme Court.”116 The Supreme Court has recognizes that a defendant may
waive his Fifth Amendment privilege against self-incrimination “provided the waiver is made

111

See Golver v. Cain, 128 F.3d 900, 904 (5th Cir. 1997).

112

Rec. Doc. 18 at 18–23.

113

See Rec. Doc. 19.

114

See Douglass, 79 F.3d at 1428–29.

115

Miller v. Fenton, 474 U.S. 104, 112 (1985).

116

Barnes v. Johnson, 160 F.3d 218, 222 (5th Cir. 1998).

16

voluntarily, knowingly and intelligently.”117 This “inquiry has two distinct dimensions.”118 “First,
the relinquishment of the right must have been voluntary in the sense that it was the product of a
free and deliberate choice rather than intimidation, coercion, or deception.”119 “Second, the waiver
must have been made with a full awareness of both the nature of the right being abandoned and
the consequences of the decision to abandon it.”120
In the instant case, Petitioner argued that his confession should be suppressed because he
thought he was only being questioned about the stolen checks, not the murder, and that the
inculpatory statement was used in violation of his right to privacy because he thought he was alone
when he made the statement.121 On direct appeal, the Louisiana First Circuit found that Petitioner
had no reasonable expectation of privacy because he had been advised of his constitutional rights,
waived his rights, and was being interrogated in a police station with the recording device on the
table in front of him.122
The Magistrate Judge noted that on federal habeas review the Court must presume that the
factual determinations made by the state courts were correct, and Petitioner had not pointed to
anything in the record to support his assertion that he was misinformed when he waived his
rights.123 The Magistrate Judge determined that it was not reasonable for Petitioner to expect a
right to privacy in his statement made while in a police interrogation room where he knew he was

117

Moran v. Burbine, 475 U.S. 412, 421 (1986) (quoting Miranda v. Arizona, 384 U.S. 436, 444 (1966)).

118

Id.

119

Id.

120

Id.

121

Rec. Doc. 18 at 18.

122

State v. Williams, No. 10-1392 (La. App. 1 Cir. 02/11/11); State Rec., Vol. IV of VI.

123

Rec. Doc. 18 at 22.

17

being questioned, and recorded, about his criminal activity.124 Accordingly, the Magistrate Judge
found that Petitioner had not established that the denial of relief on the privacy issue was contrary
to, or an unreasonable application of, Supreme Court law.125 Similarly, the Magistrate Judge
determined that Petitioner had not established that he was unaware when he waived his rights that
he could be questioned about the murder.126 Finding no plain error in these determinations, the
Court adopts the Magistrate Judge’s recommendation that Petitioner’s claim that the state courts
erred in denying the motion to suppress his confession be dismissed with prejudice because the
claim is without merit.
2.

Ineffective Assistance of Counsel

The Magistrate Judge also recommended that the Court dismiss each of Petitioner’s
ineffective assistance of counsel claims.127 Petitioner does not object to this determination.128
Accordingly, the Court reviews this issue for plain error.129
To succeed on an ineffective assistance of counsel claim, a petitioner must demonstrate
both that counsel’s performance was deficient and that the deficient performance prejudiced his
defense.130 If a court finds that a petitioner fails on either of these two prongs it may dispose of the
ineffective assistance claim without addressing the other prong.131 To satisfy the deficient

124

Id. at 23 (citing United States v. Swift, 623 F.3d 618, 623 (8th Cir. 2010)).

125

Id.

126

Id.

127

Rec. Doc. 18 at 23–37.

128

See Rec. Doc. 19.

129

See Douglass, 79 F.3d at 1428–29.

130

Strickland v. Washington, 466 U.S. 668, 697 (1984).

131

Id. at 697.

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performance prong, a petitioner must overcome a strong presumption that the counsel’s conduct
falls within a wide range of reasonable representation.132 Petitioner must show that the conduct
was so egregious that it failed to meet the constitutional minimum guaranteed by the Sixth
Amendment.133 Courts addressing this prong of the test for ineffective counsel must consider the
reasonableness of counsel’s actions in light of all the circumstances.134 To prevail on the actual
prejudice prong, 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.”135 A
reasonable probability is “a probability sufficient to undermine confidence in the outcome.”136
Petitioner raises four ineffective assistance of trial counsel claims: (1) his trial counsel was
ineffective when he presented hearsay testimony from Detective Robert Blount and erroneously
mentioned a crowbar during his questioning of the deputy coroner; (2) his trial counsel was
ineffective when he failed to object to the prosecutor’s indirect reference to Petitioner’s failure to
testify during closing arguments; (3) his trial counsel was ineffective when he failed to challenge
the sufficiency of the evidence to support a guilty verdict; and (4) his trial counsel was ineffective
when he did not prepare for trial where he failed to articulate the reasonable doubt theory to the
jury, never advanced a theory of innocence or new exculpatory evidence, failed to object to
perjured testimony from state witnesses, and did not complete discovery.137 The Magistrate Judge

132

See Crockett v. McCotter, 796 F.2d 787, 791 (5th Cir. 1986); Mattheson v. King, 751 F.2d 1432, 1441
(5th Cir. 1985).
133

See Styron v. Johnson, 262 F.3d 438, 450 (5th Cir. 2001).

134

See Strickland, 466 U.S. at 689.

135

Id. at 694.

136

Id.

137

Rec. Doc. 1.

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determined that Petitioner had not established that his counsel’s performance was deficient as to
any of these claims.138
Specifically, the Magistrate Judge found that defense counsel’s decision not to object to
the alleged hearsay testimony of Detective Blount was a reasonable strategy.139 The Magistrate
Judge also found Petitioner’s claim that his counsel erroneously mentioned a crowbar during his
questioning of the deputy coroner unavailing because the prosecutor first mentioned the crowbar
to the deputy coroner, and defense counsel merely questioned the deputy coroner about the
crowbar on cross-examination.140 Regarding Petitioner’s argument that his counsel performed
ineffectively in failing to object to the prosecutor’s indirect reference to Petitioner’s failure to
testify at trial, the Magistrate Judge determined that the prosecutor’s closing argument did not
violate due process or Petitioner’s Fifth Amendment rights because there was no clear showing
that the prosecutor intended to comment on Petitioner’s decision not to testify and so defense
counsel’s failure to object was not deficient performance.141 Finally, the Magistrate Judge rejected
Petitioner’s claim that his counsel did not investigate and prepare for trial because reading of the
record and trial transcript negated Petitioner’s conclusory assertions that counsel failed to prepare
or put the State’s case to a legitimate challenge.142 Finding no plain error in these determinations,
the Court adopts the Magistrate Judge’s recommendation that Petitioner’s ineffective assistance of
counsel claims be dismissed with prejudice because the claims are without merit.

138

Rec. Doc. 18 at 23–37.

139

Id. at 28–29.

140

Id. at 29–30.

141

Id. at 30–32.

142

Id. at 32–33.

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V. Conclusion
For the reasons stated above, the Court concludes that Petitioner has failed to overcome
the procedural bar to his claim, challenging the introduction of an enhanced recording of his
confession at trial without a Daubert hearing. Moreover, the Court finds Petitioner’s claim that the
state courts erred in denying the motion to suppress his confession and his ineffective assistance
of counsel claims without merit. Accordingly,
IT IS HEREBY ORDERED that Petitioner’s objections are OVERRULED;
IT IS FURTHER ORDERED that the Court ADOPTS the Magistrate Judge’s
recommendation and Petitioner Kevin Williams’s petition for issuance for a writ of habeas corpus
pursuant to 28 U.S.C. § 2254 is DENIED and DISMISSED WITH PREJUDICE.
NEW ORLEANS, LOUISIANA, this 10th day of August, 2017.
____

__________________________________
NANNETTE JOLIVETTE BROWN
UNITED STATES DISTRICT JUDGE

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