Parker v. Cain et al

Filing 28

ORDER ADOPTING REPORT AND RECOMMENDATIONS 19 . ORDERED that Petitioners objections are OVERRULED; FURTHER ORDERED that the Court ADOPTS the Magistrate Judges recommendation and Petitioner Roy Parkers 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 9/12/2017.(caa)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
ROY PARKER

CIVIL ACTION

VERSUS

NO. 15-65

N. BURL CAIN, WARDEN

SECTION: “G”(2)

ORDER AND REASONS
Before the Court are Petitioner Roy Parker’s (“Petitioner”) objections 1 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 for
writ of habeas corpus under 28 U.S.C. § 2254. 3 The Magistrate Judge recommended that the
petition be dismissed on the merits. 4 Petitioner objects to the Magistrate Judge’s recommendation. 5
After reviewing the petition, the State’s response, the Magistrate Judge’s Report and
Recommendation, Petitioner’s 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.

1

Rec. Doc. 22.

2

Rec. Doc. 19.

3

Rec. Doc. 1.

4

Rec. Doc. 19.

5

Rec. Doc. 22.

1

I. Background
A.

Factual Background
On June 18, 2009, Petitioner was charged by Indictment in the Orleans Parish Criminal

District Court with one count of second-degree murder of his wife, Veronica Parker, and one count
of attempted second-degree murder of Brian Davis. 6 Petitioner initially entered a not guilty plea,
but on February 5, 2010, he changed his plea to both not guilty and not guilty by reason of
insanity. 7 On April 6, 2010, Petitioner changed his plea again to not guilty, withdrawing the plea
of not guilty by reason of insanity. 8
On April 8, 2010, following a jury trial, Petitioner was found guilty as charged. 9 On May
28, 2010, Petitioner was sentenced to life imprisonment on the second-degree murder conviction
and 50 years imprisonment on the attempted second-degree murder conviction, with both
sentences to run concurrently and without possibility of probation, parole, or suspension of
sentence. 10 The same day, the state trial court denied Petitioner’s motions to reconsider the
sentence, for a new trial and for post-verdict judgment of acquittal. 11 The Louisiana Fourth Circuit
Court of Appeal affirmed Petitioner’s convictions and sentences on September 21, 2011. 12 The

6

State Rec., Vol. VI of X, Indictment, June 18, 2009.

7

State Rec., Vol. I of X, Docket Entry, Feb. 5, 2010.

8

State Rec., Vol. VI of X, Docket Entry, Apr. 6, 2010.

9

State Rec., Vol. IX of X, Jury Verdict, Apr. 8, 2010.

10

State Rec., Vol. I of X, Minute Entry Sentencing, May 28, 2010.

11

State Rec., Vol. I of X, Hearing Minutes, May 28, 2010.

12

State v. Parker, 2010-KA-1277 (La. App. 4 Cir. 9/21/11); 76 So. 3d 55.

2

Louisiana Supreme Court denied Petitioner’s application for a writ of certiorari on March 9,
2012. 13
Petitioner, through retained counsel, subsequently filed an application for post-conviction
relief in the state trial court, which was denied on April 18, 2013. 14 Petitioner’s related writ
applications were denied by the Louisiana Fourth Circuit Court of Appeal on September 17,
2013, 15 and by the Louisiana Supreme Court on October 10, 2014. 16
On January 12, 2015, Petitioner filed this habeas petition raising the following grounds for
relief: (1) ineffective assistance of counsel at trial; (2) ineffective assistance of appellate counsel;
(3) a violation of due process by the prosecutor during rebuttal argument; and (4) a violation of
due process when a juror was removed over an objection by the defense. 17 As part of his ineffective
assistance of trial counsel claim, Petitioner argues: (1) counsel allowed the trial court to proceed
without appointment of a sanity commission, failed to pursue the competency defense asserted by
Petitioner’s original appointed trial counsel and convinced Petitioner on the morning of trial to
withdraw the insanity plea because counsel was unprepared for trial; (2) counsel was not prepared
for trial and rested the defense case without calling witnesses and without allowing Petitioner to
testify on his own behalf, because counsel did not have time to prepare Petitioner or any defense
witnesses; (3) counsel did not advise the trial court in the motion to continue trial about their heavy
caseload and insufficient time to prepare; (4) counsel abandoned voir dire because they were too

13

State v. Parker, 2011-K-2339 (La. 3/9/12); 84 So. 3d 551. In the interim, Petitioner also filed a pro se postconviction writ application before the Louisiana Supreme Court, which was denied on July 27, 2012. See State ex rel.
Parker v. State, 2011-KH-2478 (La. 7/27/12); 93 So. 3d 586.
14

State Rec., Vol. II of X, Order Denying Application for Post-Conviction Relief, Apr. 18, 2013.

15

State v. Parker, 2013-K-811 (La. App. 4 Cir. 9/17/13); State Rec., Vol. X of X.

16

State v. Parker, 2013-KP-2458 (La. 10/10/14); 150 So. 3d 891.

17

Rec. Doc. 1.

3

inexperienced to proceed without raising objections by the prosecutor; and (5) counsel learned of
a conflict of interest during trial but continued to represent Petitioner after the trial court denied
counsel’s request to withdraw and for mistrial. 18 As part of his ineffective assistance of appellate
counsel claim, Petitioner argues that his appellate counsel failed to preserve objections to the
following errors on direct appeal: (1) the state trial court did not appoint a sanity commission; (2)
the state trial court denied the motion to continue trial; (3) trial counsel improperly withdrew the
insanity plea; (4) the trial court denied the motion to withdraw and for mistrial after counsel
announced his conflict of interest; (5) the trial court refused to grant a mistrial after Petitioner
announced he had a problem with counsel’s conflict; (6) there were Sixth Amendment
Confrontation Clause violations at trial; (7) there was a Sixth Amendment Confrontation Clause
violation when 911 tapes were played and admitted at trial; (8) the trial court failed to administer
the trial in accordance with law; (9) the trial court unlawfully removed a seated juror; (10) the
prosecutor made improper and inflammatory closing arguments; (11) Petitioner’s sentences were
illegal; (12) there was insufficient evidence to support the conviction; (13) cumulative errors
rendered the verdicts a Due Process violation; and (14) Louisiana’s non-unanimous verdict rule
was unconstitutional. 19 The State filed a response, arguing that the petition should be dismissed as
Petitioner failed to exhaust state court remedies as to each argument and is now procedurally
prohibited under state law from returning to the state courts for further review. 20 Therefore, the

18

Rec. Doc. 1-2 at 5–13, 16–17. See also Rec. Doc. 19 at 9–10. The Magistrate Judge discerned these claims
from the petition, and Petitioner does not object to this categorization of the claims.
19

Rec. Doc. 1-2 at 22–23.

20

Rec. Doc. 15.

4

State contends that Petitioner’s claims are procedurally defaulted and should be dismissed with
prejudice. 21 Alternatively, the State argues that the claims should be dismissed on the merits. 22
B.

Report and Recommendation Findings
In the Report and Recommendation, the Magistrate Judge noted that the State could be

correct in its assertion that Petitioner did not exhaust state court remedies as to each aspect of his
ineffective assistance of trial and appellate counsel claims, but the Magistrate Judge determined
that “any such conclusion cannot be made with confidence, given the confusing morass presented
by the state court pleadings submitted by defense counsel.” 23 Therefore, because the claims could
be dismissed on the merits, the Magistrate Judge concluded that it was unnecessary to address the
issue of exhaustion.24 Accordingly, the Magistrate Judge proceeded to address the merits of
Petitioner’s claims, and recommended that the petition be dismissed on the merits. 25
1.

Ineffective Assistance of Trial Counsel Claims

First, the Magistrate Judge examined Petitioner’s claim that his trial counsel was
ineffective when he allowed the trial court to proceed with the case without appointment of a sanity
commission, failed to pursue the insanity defense raised by Petitioner’s prior counsel, and advised
Petitioner to withdraw the insanity plea on the morning of trial. 26 The Magistrate Judge noted that
Petitioner had not identified any basis upon which his attorneys could have pursued an insanity

21

Id.

22

Id.

23

Rec. Doc. 19 at 12.

24

Id. (citing 28 U.S.C. § 2254(b)(2)).

25

Id. at 12–50.

26

Id. at 20–24.

5

defense. 27 Moreover, the Magistrate Judge noted that in his statement to the police, which was
played at trial, Petitioner admitted to the following: (1) he was “on a mission” when he grabbed a
gun and made a plan to go to the bar to seek out his wife; (2) he formed a plan to take his aunt’s
car and drive to the bar to confront his wife; (3) he knew he should not have grabbed his gun or
shot his wife; and (4) he shot his wife because he was provoked by her presence at the bar and her
prior actions. 28 The Magistrate Judge determined that this statement showed that Petitioner was
capable of appreciating the nature and wrongfulness of his conduct, and so Petitioner had not
established a reasonable basis on which his trial counsel might have pursued an insanity defense
or appointment of a sanity commission. 29 Therefore, the Magistrate Judge determined that the state
courts’ rejection of this claim was neither contrary to, nor an unreasonable application, of federal
law. 30
Second, the Magistrate Judge addressed Petitioner’s claim that his counsel was not
prepared for trial and failed to call defense witnesses. 31 The Magistrate Judge noted that Petitioner
had offered no proof to support his assertion that because his attorneys were indigent defenders
they had insufficient time and resources to defend the case. 32 Moreover, the Magistrate Judge noted
that Plaintiff had not identified any potential witnesses who could have provided relevant
testimony to support any defense. 33 Regarding Petitioner’s assertion that he should have been

27

Id. at 21.

28

Id. at 22.

29

Id. at 23.

30

Id. at 23–24.

31

Id. at 24–30.

32

Id. at 24.

33

Id. at 26.

6

allowed to testify on his own behalf, the Magistrate Judge determined that Petitioner’s assertion
that his counsel advised against testifying was insufficient to show that counsel actually prevented
him from testifying at trial. 34 Furthermore, the Magistrate Judge found Petitioner had not
established that counsel performed unreasonably by advising Petitioner not to testify. 35 Therefore,
the Magistrate Judge determined that the state courts’ rejection of this claim was neither contrary
to, nor an unreasonable application of, federal law. 36
Third, the Magistrate Judge addressed Petitioner’s claim that his counsel performed
deficiently by failing to advise the state trial court in the motion to continue trial due to counsel’s
heavy caseload and insufficient time to prepare for trial. 37 The Magistrate Judge found this
argument unavailing because Petitioner had not shown that his attorneys had insufficient time to
defend the case. 38 Furthermore, the Magistrate Judge noted that counsel’s choice of arguments in
support of a motion to continue falls squarely within the ambit of trial strategy. 39 Therefore, the
Magistrate Judge determined that the state courts’ denial of relief on this claim was neither contrary
to, nor an unreasonable application of, federal law. 40
Fourth, the Magistrate Judge addressed Petitioner’s claim that his counsel was forced to
abandon questioning during voir dire because they were “too inexperienced” to continue the

34

Id. at 29.

35

Id.

36

Id. at 30.

37

Id. at 30–31.

38

Id. at 30.

39

Id. at 31.

40

Id.

7

questioning without provoking objections from the prosecutor. 41 The Magistrate Judge noted that
the state trial court granted two objections made by the prosecutor to questions posed by his
counsel during voir dire, but determined that the fact that the state trial court granted the objections
did not mean that defense counsel was inexperienced or ineffective. 42 Moreover, the Magistrate
Judge found that a review of the trial transcript indicated that Petitioner’s counsel conducted full
and relevant voir dire. 43 Furthermore, the Magistrate Judge noted that “counsel’s choice of voir
dire questions and the scope and length of voir dire examination was well within the ambit of
reasonable trial strategy for which counsel is entitled to deference.” 44 Therefore, the Magistrate
Judge determined that the state courts’ denial of relief on this claim was neither contrary to, nor
an unreasonable application of, federal law. 45
Fifth, the Magistrate Judge addressed Petitioner’s claim that his lead defense counsel had
a conflict of interest during trial but continued to represent Petitioner after the trial court denied
counsel’s request to withdraw and for a mistrial based on the conflict. 46 Specifically, Petitioner
alleged that his counsel received information via text message that his best friend was acquainted
with the victim and several of the State’s witnesses, but the state trial court denied counsel’s
request to withdraw. 47 The Magistrate Judge found that Petitioner had “failed to identify any act
adverse to the defense by his counsel related to the tenuous and tangential relationship, if any,

41

Id. at 31–34.

42

Id. at 31.

43

Id. 32–34.

44

Id. at 33–34.

45

Id. at 34.

46

Id. at 34–36.

47

Id. at 34.

8

between his counsel, the friend and the victims and witnesses.” 48 Moreover, even if a conflict
might have existed under the circumstances, the Magistrate Judge determined that Petitioner had
not established that counsel’s performance “so undermined the proper functioning of the
adversarial process that the trial cannot be relied on as having a just result.” 49 Accordingly, the
Magistrate Judge determined that the state courts’ determination that neither deficient performance
nor prejudice were established was not an unreasonable application of federal law. 50
2.

Ineffective Assistance of Appellate Counsel Claims

Next, the Magistrate Judge addressed Petitioner’s ineffective assistance of appellate
counsel claims. 51 The Magistrate Judge noted that the petition lists without discussion or
explanation fourteen alleged trial errors that Petitioner asserted should have been raised on direct
appeal. 52 The Magistrate Judge noted that the record did not demonstrate any reason for
Petitioner’s counsel or the state trial court should pursue the sanity defense based on the facts of
this case, and Petitioner had not shown that the state trial court to have replaced trial counsel based
on the tenuous conflict disclosed by counsel. 53 With respect to the sufficiency of the evidence
claim, the Magistrate Judge noted that although counsel did not raise such a claim on direct appeal,
it was raised by Petitioner himself and found to be meritless. 54 The Magistrate Judge found that
the remaining arguments listed by Petitioner were “too conclusory to assess any merit that could

48

Id. at 35.

49

Id. at 36 (quoting Strickland v. Washington, 466 U.S. 668, 686 (1984)).

50

Id.

51

Id. at 37–42.

52

Id. at 38–39.

53

Id. at 39.

54

Id.

9

have been argued to the state appellate court.” 55 Specifically, the Magistrate Judge noted that
Petitioner did not address any particular Confrontation Clause issue that would have been
meritorious, as the only reference made by Petitioner was the introduction of 911 telephone calls
at trial, which the Magistrate Judge determined were nontestimonial statements that do not
implicate the Confrontation Clause. 56 The Magistrate Judge also found that, even assuming the
testimony constituted hearsay, deciding whether to raise objections is a matter of trial strategy. 57
Furthermore, the Magistrate Judge determined that Petitioner had not established any legal basis
for Petitioner’s appellate counsel to have challenged Louisiana’s non-unanimous verdict rule,
which is a well-established law previously upheld by the United States Supreme Court.58
Accordingly, the Magistrate Judge concluded that the state courts’ denial of relief on Petitioner’s
ineffective assistance of appellate counsel claim was neither contrary to, nor an unreasonable
application of, federal law. 59
3.

Prosecutorial Misconduct Claim

Next, the Magistrate Judge addressed Petitioner’s claim that the prosecutor violated his due
process rights during rebuttal argument. 60 Specifically, Petitioner argued that the prosecutor
attempted to garner sympathy for abused women by improperly “highlighting the plight of abused
women” and describing the victim as “a young woman who had fought for years now to get out

55

Id. at 40.

56

Id. (citing Davis v. Washington, 547 U.S. 813, 822 (2006)).

57

Id.

58

Id. at 41 (citing Apodaca v. Oregon, 406 U.S. 404 (1972); Johnson v. Louisiana, 406 U.S. 356 (1972)).

59

Id. at 42.

60

Id. at 42–47.

10

from underneath his control.” 61 However, the Magistrate Judge noted that Petitioner’s trial
counsel’s objections to these statements were sustained by the state trial court. 62 The Magistrate
Judge found that a review of the transcript of the closing and rebuttal arguments reflected that the
prosecutor relied on Petitioner’s statement to the police and actions tending to show that he planned
the shooting to support the argument that a second-degree murder, rather than manslaughter,
conviction was warranted. 63 Therefore, the Magistrate Judge concluded that the prosecutor’s
improper references to domestic violence did not “so infect[] the trial as a whole that it was
rendered fundamentally unfair.” 64 Accordingly, the Magistrate Judge determined that Petitioner
had not established that the State’s rebuttal argument denied him due process, and so the state
courts’ rejection of this claim was not contrary to, nor an unreasonable application of, federal
law. 65
4.

Due Process Claim

Finally, the Magistrate Judge addressed Petitioner’s claim that his due process rights were
violated when the state trial court removed a seated juror over defense counsel’s objection.66
Specifically, Petitioner argued that a juror advised the state trial court that he remembered
Petitioner from high school, and after an inquiry in chambers regarding the juror’s ability to be
fair and impartial, the court dismissed him from the jury. 67 The Magistrate Judge determined that

61

Id. at 44.

62

Id.

63

Id.

64

Id. at 45.

65

Id. at 46–47.

66

Id. at 47–49.

67

Id. at 47.

11

Petitioner had not established that “the jury which actually presided over his case was other than
impartial or that the release of a single juror after the start of trial in any way affected the remaining
jurors’ fairness and impartiality.” 68 Thus, the Magistrate Judge determined that the state courts’
rejection of the claim was neither contrary to, nor an unreasonable application of, federal law. 69
II. Objections
A.

Petitioner’s Objections
Petitioner objects to the Magistrate Judge’s Report and Recommendation. 70 Petitioner

contends that “[t]he Orleans Public Defender’s Office is and has been in crisis for decades,” but
despite the extensive motion to continue trial “filed by the recently appointed members of that
office” the Magistrate Judge determined that Petitioner alleged without detail that his attorneys
were not prepared for trial. 71 Petitioner asserts that he adequately pled his ineffective assistance of
counsel claims in state court, particularly his ineffective assistance of appellate counsel claim. 72
Moreover, Petitioner argues that “when it is demonstrated that appellate counsel abandoned issues
that were clearly stronger than the issues counsel pursued on direct appeal, the ineffectiveness of
appellate counsel is established.” 73 Petitioner contends that his claim that Louisiana’s nonunanimous verdict rule is unconstitutional must be addressed because “[i]f advocates hued to the
circular reasoning advanced in the Magistrate report, the law would never make any progress,

68

Id. at 49.

69

Id.

70

Rec. Doc. 22.

71

Id. at 2.

72

Id.

73

Id. at 2–3 (citing Smith v. Robbins, 528 U.S. 259, 288 (2000)).

12

segregation would have remained the law of the land, absent legislative action, because ‘the issue
has been settled.’” 74
Next, Petitioner asserts that “[w]hen a citizen pleads ineffective assistance of counsel, in a
case in which their newly appointed lawyers filed pleadings which stated they were not competent
to provide adequate counsel, due to insufficient time to prepare, the law requires that the State be
ordered to answer and in due course an evidentiary hearing conducted.” 75 Petitioner contends that
he does not have evidence to support his claim that his counsel was not prepared for trial because
the state trial court did not conduct an evidentiary hearing. 76 Petitioner argues that “if the door
were opened and members of the Orleans Public Defender’s Office were allowed to make the
record regarding their constitutional ineffectiveness, virtually every conviction would be subject
to challenge.” 77
Finally, Petitioner argues that the prosecutor “repeatedly interjected facts that were not in
evidence and a call to be the voice of the victim” in her closing arguments. 78 Petitioner asserts that
the prosecutor’s statement that he had time for his “blood to cool” is contradicted by the evidence
which established “an unbroken chain of events.” 79 Specifically, Petitioner contends that “[h]e
found the semen stained underwear, got his gun, got his car and drove to the bar where his wife
drank til dawn every night and shot her.” 80 Petitioner notes that he turned himself in to the police

74

Id. at 4.

75

Id. at 4–5.

76

Id. at 5.

77

Id.

78

Id. at 6.

79

Id.

80

Id.

13

and admitted his crime. 81 Petitioner contends that he is not asserting that but for the prosecutor’s
“improper, inflammatory rebuttal closing argument” he would not have been convicted. 82 Instead
he contends that “given the overall context of the manner in which this case was forced to trial
with attorneys that were not prepared, that the improper argument resulted in a conviction for
Second Degree Murder and not for Manslaughter.” 83
In support of his objections to the Report and Recommendation, Petitioner presents the
motion to continue trial that was filed in his case, 84 the transcript of his counsel’s request to
withdraw from the case, 85 an article regarding budget shortfalls at the Orleans Public Defender’s
Office, 86 and an article titled “The New Standard.” 87 Petitioner also presents an affidavit of one of
his trial attorneys, Andrew Duffy, dated December 8, 2015. 88 In the affidavit, Duffy states that he
was a full-time staff attorney at the Orleans Public Defenders Office from May 2006 until July
2010. 89 Duffy attests that “[a]t the time he was assigned to represent Mr. Parker, he carried a
burdensome caseload of more than 40 cases, all of which carried a mandatory life sentence or its
equivalent in years . . . [and] supervised five other felony level attorneys.” 90 Duffy further attests
that in February 2010 he was assigned to represent Petitioner when Petitioner’s originally assigned

81

Id.

82

Id.

83

Id.

84

Rec. Doc. 23-1.

85

Rec. Doc. 23-2.

86

Rec. Doc. 23-3.

87

Rec. Doc. 23-4.

88

Rec. Doc. 25-1.

89

Id. at 1.

90

Id.

14

attorney left the Orleans Public Defenders Office on maternity leave. 91 Duffy states that upon his
receipt of the case file, “there were no psychiatric records, medical records or funds to secure an
expert,” and an expert had not been engaged to examine Petitioner and report on a potential
insanity defense. 92 Moreover, Duffy attests that in the days leading up to trial Elizabeth Coe,
another attorney who was assigned to sit as second chair on the case, discovered a box of files in
Petitioner’s former attorney’s office, which contained documents relevant to the defense. 93 Duffy
states that approximately one week before trial he filed a motion to continue because “he had only
met [Petitioner] approximately two months prior and there was insufficient time to prepare the
case given his other assigned cases.” 94 Finally, Duffy attests that during the trial he received a text
message from his close personal friend, Jason Sedawie, which indicated that Sedawie worked with
many of the prosecution witnesses and knew the victims in the case. 95
B.

State’s Response
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.

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

91

Id.

92

Id.

93

Id. at 2.

94

Id.

95

Id.

15

recommended disposition” of a Magistrate Judge on a dispositive matter. 96 The District Judge must
“determine de novo any part of the [Report and Recommendation] that has been properly objected
to.” 97 The District Court’s review is limited to plain error for parts of the report which are not
properly objected to. 98
B.

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

(“AEDPA”), the standard of review used to evaluate issues presented in habeas corpus petitions
was revised “to ensure that state-court convictions are given effect to the extent possible under
law.” 99 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.” 100 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.” 101
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
96

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

97

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

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).
98

99

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

100

28 U.S.C. § 2254(d)(2).

101

28 U.S.C. § 2254(d)(1).

16

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. 102
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.’” 103 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.” 104
However, the AEDPA’s deferential standards of review apply only to claims adjudicated
on the merits by the state courts. 105 Instead, claims that were not adjudicated on the merits by the
state courts are reviewed “de novo without applying AEDPA-mandated deference.” 106
IV. Law and Analysis
A.

Ineffective Assistance of Trial Counsel Claims
Petitioner claims that he was denied effective assistance of trial counsel when: (1) counsel

allowed the trial court to proceed without appointment of a sanity commission, failed to pursue the
competency defense asserted by Petitioner’s original appointed trial counsel and convinced
Petitioner on the morning of trial to withdraw the insanity plea because counsel was unprepared
for trial; (2) counsel was not prepared for trial and rested the defense case without calling witnesses
and without allowing Petitioner to testify on his own behalf, because they did not have time to

102

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

103

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

104

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

105

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

106

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

17

prepare Petitioner or any defense witnesses; (3) counsel did not advise the trial court in the motion
to continue trial about their heavy caseload and insufficient time to prepare; (4) counsel abandoned
voir dire because they were too inexperienced to proceed without raising objections by the
prosecutor; and (5) counsel learned of a conflict of interest during trial but continued to represent
Petitioner after the trial court denied counsel’s request to withdraw and for mistrial. 107 The
Magistrate Judge found each of these arguments unavailing, concluding that Petitioner’s claims of
ineffective assistance of counsel are meritless and that the state courts’ denial of relief on these
claims is not contrary to, or an unreasonable application of, federal law. 108 Petitioner objects to
this determination, arguing “[t]he Orleans Public Defender’s Office is and has been in crisis for
decades,” but despite the extensive motion to continue trial “filed by the recently appointed
members of that office” the Magistrate Judge determined that Petitioner alleged without detail that
his attorneys were not prepared for trial. 109 Accordingly, the Court reviews these issues de novo.110
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. 111 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. 112 To satisfy the deficient
performance prong, a petitioner must overcome a strong presumption that the counsel’s conduct

107

Rec. Doc. 1-2 at 5–13, 16–17. See also Rec. Doc. 19 at 9–10. The Magistrate Judge discerned these claims
from the petition, and Petitioner does not object to this categorization of the claims.
108

Rec. Doc. 19 at 20–37.

109

Rec. Doc. 22 at 2.

110

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

111

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

112

Id. at 697.

18

falls within a wide range of reasonable representation. 113 Petitioner must show that the conduct
was so egregious that it failed to meet the constitutional minimum guaranteed by the Sixth
Amendment. 114 Courts addressing this prong of the test for ineffective counsel must consider the
reasonableness of counsel’s actions in light of all the circumstances. 115 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.” 116 A
reasonable probability is “a probability sufficient to undermine confidence in the outcome.” 117
In considering Petitioner’s claims on federal habeas corpus review that are repetitive of
claims already made to a state court, the central question “is not whether a federal court believes
the state court’s determination under Strickland was incorrect but whether [it] was unreasonable—
a substantially higher threshold.” 118 In addition, “because the Strickland standard is a general
standard, a state court has even more latitude to reasonably determine that a defendant has not
satisfied that standard.” 119 Thus, this standard is considered “doubly deferential” on habeas corpus
review. 120

113

See Crockett v. McCotter, 796 F.2d 787, 791 (5th Cir. 1986); Mattheson v. King, 751 F.2d 1432, 1441
(5th Cir. 1985).
114

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

115

See Strickland, 466 U.S. at 689.

116

Id. at 694.

117

Id.

118

Knowles v. Mirzayance, 556 U.S. 111, 112 (2009) (quoting Schriro v. Landrigan, 550 U.S. 465, 478

119

Id.

120

Id.

(2007)).

19

As an initial matter, the Court notes Petitioner presents an affidavit of one of his trial
attorneys, Andrew Duffy, dated December 8, 2015, for the first time in his objections to the
Magistrate Judge’s Report and Recommendation, in support of his ineffective assistance of counsel
claim. 121 In Cullen v. Pinholster, the Supreme Court explained that, because Section 2254(d)(1)
“refers, in the past tense, to a state-court adjudication that ‘resulted in’ a decision that was contrary
to, or ‘involved’ an unreasonable application of, established law[,] [t]his backward-looking
language requires an examination of the state-court decision at the time it was made.” 122 Thus,
“the record under review is limited to the record in existence at that same time, i.e., the record
before the state court.” 123 Moreover, the Fifth Circuit has recognized that “[t]he same rule
necessarily applies to a federal court’s review of purely factual determinations under
§ 2254(d)(2).” 124 Therefore, “Pinholster prohibits a federal court from using evidence that is
introduced for the first time [on federal habeas review] as the basis for concluding that a state
court’s adjudication is not entitled to deference under § 2254(d).” 125 Accordingly, the Court may
not consider the affidavit in determining whether the state courts’ denial of relief on Petitioner’s
ineffective assistance of trial counsel claims was contrary to, or an unreasonable application of,
federal law. 126

121

Rec. Doc. 25-1.

122

Cullen v. Pinholster, 563 U.S. 170, 181 (2011) (quoting 28 U.S.C. § 2254(d)(1)).

123

Id.

124

See Blue v. Thaler, 665 F.3d 647, 656 (5th Cir. 2011).

125

Id.

126

As the Magistrate Judge noted in the Report and Recommendation, it is difficult to discern for the state
court pleadings whether Petitioner did in fact exhaust state court remedies as to each aspect of his ineffective assistance
of trial counsel claims, but “any such conclusion cannot be made with confidence, given the confusing morass
presented by the state court pleadings submitted by defense counsel.” Rec. Doc. 19 at 12. To the extent that any of
these claims were not exhausted before the state courts, Petitioner would be procedurally barred from raising these
claims. “[P]rocedural default . . . occurs when a prisoner fails to exhaust available state remedies and the court to
which the petitioner would be required to present his claims in order to meet the exhaustion requirement would now

20

1.

Failure to Pursue Insanity Defense

Petitioner claims that his trial counsel was ineffective when he allowed the trial court to
proceed with the case without appointment of a sanity commission, failed to pursue the insanity
defense raised by Petitioner’s prior counsel, and advised Petitioner to withdraw the insanity plea
on the morning of trial. 127 The Fifth Circuit considered a similar claim in Johnson v. Cain.128
There, the Fifth Circuit found “no evidence in the record that counsel was on notice that Johnson
suffered from a physical or psychological condition that would have made the insanity defense
viable.” 129 The court noted that under Louisiana law “[a] defendant who raises the insanity defense
‘must persuade the jury that he had a mental disease or defect which rendered him incapable of
distinguishing right from wrong with reference to the conduct which forms the basis for the
criminal charge against him.’” 130 The Fifth Circuit determined that the petitioner’s confession
overwhelmingly established that he was not incapable of distinguishing right from wrong with
regard to the murder, because he admitted to positioning the body so that it would not be seen,
discarding evidence, and lying to family as to his whereabouts. 131 Therefore, the Fifth Circuit

find the claims procedurally barred.” Bagwell v. Dretke, 372 F.3d 748, 755 (5th Cir. 2004) (quoting Nobles v. Johnson,
127 F.3d 409, 420 (5th Cir. 1997); Elizalde v. Dretke, 362 F.3d 323, 328–29 (5th Cir. 2004)). A federal habeas court
“may resurrect a defaulted claim, and consider its merits, if the prisoner can demonstrate cause for the default and
actual prejudice as a result of the alleged violation of federal law, or demonstrate that failure to consider the claims
will result in a fundamental miscarriage of justice.” Id. (quoting Coleman v. Thompson, 501 U.S. 722, 750 (1991)
(quotation marks omitted)). Here, Petitioner has presented no argument regarding cause for the default. Moreover, he
has not alleged that the failure to consider the claims would result in a fundamental miscarriage of justice. Therefore,
Petitioner would be procedurally barred from raising any ineffective assistance of trial counsel claims that were not
properly exhausted before the state courts.
127

Rec. Doc. 1-2 at 5–6, 9–10.

128

548 F. App’x 260, 261 (5th Cir. 2013).

129

Id.

130

Id. (citing State v. Allen, 2011-CA-1995, 2012 WL 2061472, at *6 (La. Ct. App. 2012)).

131

Id. at 261–62.

21

concluded that the petitioner had not established prejudice, because he “failed to show that an
investigation by counsel into the mere possibility that he suffered from PTSD or TBI would have
caused him to forgo the plea offer and insist upon a capital trial.” 132
Here, even if the Court could consider Duffy’s affidavit, which states that at the time Duffy
was appointed to the case there were no psychiatric records, medical records or funds to secure an
expert, and an expert had not been engaged to examine Petitioner and report on a potential insanity
defense, 133 Petitioner would not be entitled to relief on this claim. Petitioner has not identified any
basis upon which his attorneys could have pursued an insanity defense. Moreover, in his statement
to the police, which was played at trial, Petitioner admitted that he was “on a mission” when he
grabbed a gun and made a plan to go to the bar to seek out his wife. 134 Petitioner also admitted to
forming a plan to take his aunt’s car and drive to the bar to confront his wife, and that he knew he
should not have grabbed his gun or shot his wife. 135 Petitioner also stated that he was ‘provoked
by many things, including what he termed [his wife] playing with his head, smiling with men, and
coming home late.” 136 Petitioner’s statement to the police indicates that Petitioner was capable of
distinguishing right from wrong with reference to the murder. Therefore, Petitioner has not shown
a reasonable basis on which his trial counsel might have pursued an insanity defense or
appointment of a sanity commission. Accordingly, the state courts’ rejection of this claim was
neither contrary to, nor an unreasonable application of, federal law.

132

Id.

133

Rec. Doc. 25-1 at 1.

134

Parker, 76 So. 3d at 61.

135

Id.

136

Id. (quotation marks omitted).

22

2.

Failure to Adequately Prepare for Trial and Call Witnesses

Petitioner claims that his counsel performed ineffectively by failing to adequately prepare
for trial, failing to call defense witnesses, and failing to allow Petitioner to testify on his own
behalf. 137 For the first time in his objections to the Report and Recommendation, Petitioner
presents Duffy’s affidavit, which states that he had “insufficient time to prepare the case given his
other assigned cases.” 138 Even if the Court could consider this affidavit, which was not presented
to the state courts, it does not establish that Petitioner is entitled to relief on this claim. “A
defendant who alleges a failure to investigate on the part of his counsel must allege with specificity
what the investigation would have revealed and how it would have altered the outcome of the
trial.” 139 The Fifth Circuit has recognized that “[a] petitioner cannot show prejudice with respect
to a claim that counsel failed to investigate and present mitigating evidence without adducing what
the investigation would have shown.” 140 Petitioner presents no evidence of what an investigation
would have revealed or how it would have affected the outcome of his trial. Therefore, Petitioner
has not demonstrated that he is entitled to relief on this claim.
Petitioner’s claim that his counsel failed to call defense witnesses fails for this same reason.
As the Fifth Circuit has recognized, “[c]laims 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.” 141 To prevail
on such a claim, a petitioner must show prejudice “by naming the witness, demonstrating that the
137

Rec. Doc. 1-2 at 16–217.

138

Rec. Doc. 25-1 at 2.

139

Moawad v. Anderson, 143 F.3d 942, 948 (5th Cir. 1998).

140

Diaz v. Quarterman, 239 F. App’x 886, 890 (5th Cir. 2007) (citing Strickland, 466 U.S. at 696).

141

Woodfox v. Cain, 609 F.3d 774, 808 (5th Cir. 2010).

23

witness was available to testify and 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.” 142 Petitioner has failed to name any potential witnesses, demonstrate that the witnesses
were available and would have testified, or set out the content of their proposed testimony.
Therefore, Petitioner has not demonstrated that he was prejudiced by his attorneys’ failure to call
witnesses.
Petitioner also asserts that he should have been allowed to testify on his own behalf at trial.
A defendant has a fundamental constitutional right to testify at trial. 143 “A waiver of this right must
be knowing and voluntary, and it must be made by the defendant rather than his counsel.” 144 The
Fifth Circuit has held that “when a defendant contends that trial counsel interfered with his right
to testify, ‘the appropriate vehicle for such claims is a claim of ineffective assistance of
counsel.’” 145 However, “a violation of this right only occurred if the ‘final decision that [defendant]
would not testify was made against his will.’” 146 Petitioner claims that he told his counsel he
wanted to testify, but his counsel advised against it because there was insufficient time to prepare.
Petitioner’s assertion that his counsel advised against his testimony is insufficient to show that
counsel actually prevented him from testifying at trial. Furthermore, Petitioner has not established
that counsel’s advice that Petitioner not testify was unreasonable. Therefore, Petitioner has not

142

Id. (quoting Day v. Quarterman, 566 F.3d 527, 538 (5th Cir. 2009).

143

Roddy v. Vannoy, 671 F. App’x 295, 296 (5th Cir. 2016) (citing Rock v. Arkansas, 483 U.S. at 44, 49–52

144

Id. (citing Emery v. Johnson, 139 F.3d 191, 198 (5th Cir. 1998)).

145

Id. (quoting United States v. Mullins, 315 F.3d 449, 452 (5th Cir. 2002)).

(1987)).

146

Jordan v. Hargett, 34 F.3d 310, 312 (5th Cir. 1994) (quoting United States v. Teague, 908 F.2d 752, 759
(11th Cir.1990)).

24

demonstrated that he is entitled to relief on this claim, as the state courts’ rejection of this claim
was neither contrary to, nor an unreasonable application of, federal law.
3.

Failure to Advise the Trial Court of Counsel’s Insufficient Time to Prepare in
the Motion to Continue Trial

Petitioner claims that his counsel performed deficiently by failing to advise the state trial
court in the motion to continue trial about their heavy caseload and insufficient time to prepare for
trial. 147 As the Fifth Circuit has recognized, the decision on whether or not to seek a continuance
is a matter of trial strategy, and federal courts “will not question a counsel’s reasonable strategic
decisions.” 148 Furthermore, “the failure to present a particular line of argument or evidence is
presumed to have been the result of strategic choice.” 149 Petitioner has not demonstrated that his
counsel’s strategic choice regarding the arguments presented in the motion to continue constituted
deficient performance. Accordingly, the state courts’ denial of relief on this claim was neither
contrary to, nor an unreasonable application of, federal law.
4.

Failure to Pursue Questions During Voir Dire

Petitioner claims that his counsel was forced to abandon questioning during voir dire
because they were too inexperienced to continue the questioning without provoking objections
from the prosecutor. 150 In support of this claim, Petitioner references two instances where the state
trial court sustained objections by the prosecutor to questions posed by defense counsel during
voir dire concerning whether the jurors automatically would consider a shooting to be murder. 151

147

Rec. Doc. 1-2 at 8.

148

Bower v. Quarterman, 497 F.3d 459, 470 (5th Cir. 2007).

149

Taylor v. Maggio, 727 F.2d 341, 347–48 (5th Cir. 1984).

150

Rec. Doc. 1-2 at 11–12.

151

Id.

25

As the Fifth Circuit has recognized, an “attorney’s actions during voir dire are considered
to be a matter of trial strategy.” 152 “A decision regarding trial tactics cannot be the basis for a claim
of ineffective assistance of counsel unless counsel’s tactics are shown to be ‘so ill chosen that it
permeates the entire trial with obvious unfairness.’” 153 Petitioner has not demonstrated that his
counsel performed deficiently during voir dire. A review of the trial transcript indicates that
Petitioner’s counsel conducted full and relevant voir dire. The fact that the state trial court
sustained the prosecutor’s objections does not show that counsel’s performance was deficient.
Moreover, Petitioner has not demonstrated that he was prejudiced by his counsel’s performance
during voir dire. As the Louisiana Fourth Circuit noted on direct appeal, “[a] full reading of the
voir dire transcript shows that although the trial court sustained the State’s objections, defense
counsel was able to question the prospective jurors earlier concerning their ability to consider the
shooting to be a manslaughter.” 154 Therefore, Petitioner has not established that his counsel
performed deficiently during voir dire or that his counsel’s performance prejudiced his defense.
Accordingly, the state courts’ denial of relief on this claim was neither contrary to, nor an
unreasonable application of, federal law.
5.

Conflict of Interest

Finally, Petitioner claims that his lead defense counsel had a conflict of interest during trial
but continued to represent Petitioner after the trial court denied counsel’s request to withdraw and
for a mistrial based on the conflict. 155 For the first time in his objections to the Report and

152

Seigfried v. Greer, 372 F. App’x 536, 540 (5th Cir. 2010) (quoting Teague v. Scott, 60 F.3d 1167, 1172
(5th Cir.1995)).
153

Teague, 60 F.3d at 1172 (quoting Garland v. Maggio, 717 F.2d 199, 206 (5th Cir. 1983)).

154

Parker, 76 So. 3d at 63.

155

Rec. Doc. 1-2 at 12–13.

26

Recommendation, Petitioner presents Duffy’s affidavit, which states that during the trial Duffy
received a text message from his close personal friend, Jason Sedawie, which indicated that
Sedawie worked with many of the prosecution witnesses and knew the victims in the case. 156 Even
if the Court could consider this affidavit, which was not presented to the state courts, it does not
establish that Petitioner is entitled to relief on this claim.
In Cuyler v. Sullivan, the Supreme Court held that prejudice is presumed when counsel is
burdened with an actual conflict of interest “if the defendant demonstrates that counsel ‘actively
represented conflicting interests’ and that ‘an actual conflict of interest adversely affected his
lawyer’s performance.’” 157 In Beets v. Scott, the Fifth Circuit determined that the Supreme Court’s
holding in Cuyler is “limited [] to actual conflicts resulting from a lawyer’s representation of
multiple criminal defendants.” 158 The Fifth Circuit explained that “Strickland offers a superior
framework for addressing attorney conflicts outside the multiple or serial client context.”159
“Strickland more appropriately gauges an attorney’s conflict of interest that springs not from
multiple client representation but from a conflict between the attorney’s personal interest and that
of his client.” 160

156

Rec. Doc. 25-1 at 2.

157

Strickland, 466 U.S. at 692 (quoting Cuyler v. Sullivan, 446 U.S. 335, 350, 348 (1980)).

158

Hernandez v. Johnson, 108 F.3d 554, 559 (5th Cir. 1997) (citing Beets v. Scott, 65 F.3d 1258, 1266 (5th
Cir. 1995) (en banc)).
159

Beets, 65 F.3d at 1265.

160

Id. at 1260.

27

When a personal conflict of interest is alleged, the pertinent inquiry is whether Petitioner
has demonstrated that his “attorney’s performance fell below an objective standard of
reasonableness and that it prejudiced the defense, undermining the reliability of the proceeding.” 161
Here, Petitioner alleges a personal conflict existed because Duffy’s friend knew the victims.
However, Petitioner has not demonstrated that he was prejudiced by his attorney’s conduct or that
the alleged conflict compromised the quality of defense counsel’s representation.
Petitioner claims that his counsel’s performance after the conflict was announced was
“spotty and lackluster at best.” 162 To support this assertion, Petitioner lists instances in which his
counsel’s objections were sustained by the trial court but counsel did not move for a mistrial.163
However, Petitioner does not explain why a motion for a mistrial would have been warranted.
Petitioner also points to instances when he contends that his counsel should have objected to
hearsay testimony, 164 but he does not explain what specific testimony counsel should have objected
to. Therefore, Petitioner has not established that counsel’s performance “so undermined the proper
functioning of the adversarial process that the trial cannot be relied on as having a just result.”165
Accordingly, the state courts’ determination that neither deficient performance nor prejudice were
established was not contrary to, or an unreasonable application of, federal law.

161

Id. at 1272-73. The “presumed prejudice standard” does not extend beyond cases involving multiple
representation, and thus, is inapplicable in this case. Id. at 1265.
162

Rec. Doc. 1-2 at 13.

163

Id.

164

Id. at 13–14.

165

Strickland, 466 U.S. at 686.

28

B.

Ineffective Assistance of Appellate Counsel Claim
As part of his ineffective assistance of appellate counsel claim, Petitioner argues that his

appellate counsel failed to preserve objections to the following errors on direct appeal: (1) the state
trial court did not appoint a sanity commission; (2) the state trial court denied the motion to
continue trial; (3) trial counsel improperly withdrew the insanity plea; (4) the trial court denied the
motion to withdraw and for mistrial after counsel announced his conflict of interest; (5) the trial
court refused to grant a mistrial after Petitioner announced he had a problem with counsel’s
conflict; (6) there were Sixth Amendment Confrontation Clause violations at trial; (7) there was a
Sixth Amendment Confrontation Clause violation when 911 tapes were played and admitted at
trial; (8) the trial court failed to administer the trial in accordance with law; (9) the trial court
unlawfully removed a seated juror; (10) the prosecutor made improper and inflammatory closing
arguments; (11) Petitioner’s sentences were illegal; (12) there was insufficient evidence to support
the conviction; (13) cumulative errors rendered the verdicts a Due Process violation; and (14)
Louisiana’s non-unanimous verdict rule was unconstitutional. 166
The Magistrate Judge found Petitioner’s ineffective assistance of appellate counsel claims
unavailing. 167 Petitioner objects to the Magistrate Judge’s recommendation, asserting that he
adequately pled his ineffective assistance of appellate counsel claims. 168 Petitioner argues that
“when it is demonstrated that appellate counsel abandoned issues that were clearly stronger than
the issues counsel pursued on direct appeal, the ineffectiveness of appellate counsel is

166

Rec. Doc. 1-2 at 22–23.

167

Rec. Doc. 19 at 37–42.

168

Rec. Doc. 22 at 2.

29

established.” 169 Petitioner contends that his claim that Louisiana’s non-unanimous verdict rule is
unconstitutional must be addressed because “[i]f advocates hued to the circular reasoning
advanced in the Magistrate report, the law would never make any progress, segregation would
have remained the law of the land, absent legislative action, because ‘the issue has been
settled.’” 170
To prevail on a claim that appellate counsel was ineffective, a petitioner must show that
appellate counsel unreasonably failed to discover and assert a non-frivolous issue and establish a
reasonable probability that he would have prevailed on this issue but for his counsel’s deficient
representation. 171 However, appellate counsel are not required to assert every non-frivolous issue
to be found effective. 172 Rather, appellate counsel is entitled to legitimately select among nonfrivolous claims based on his or her professional judgement as a means by which to increase the
client’s likelihood of success. 173 Furthermore, appellate counsel even has the discretion to exclude
non-frivolous issues if they reasonably determine that the issue is unlikely to prevail. 174
The only specific objection that Petitioner raises regarding his ineffective assistance of
appellate counsel claim is that his claim that Louisiana’s non-unanimous verdict rule is
unconstitutional must be addressed. Moreover, Petitioner contends that he has established
ineffective assistance of counsel because the claims raised on direct appeal were weaker than the
claims he contends his counsel should have pursued. In support of this assertion, Petitioner cites

169

Id. at 2–3 (citing Smith v. Robbins, 528 U.S. 259, 288 (2000)).

170

Id. at 4.

171

Briseno v. Cockrell, 274 F.3d 204, 207 (2001); Smith v. Robbins, 528 U.S. 259, 285–86 (2000).

172

Green v. Johnson, 160 F.3d 1029, 1043 (5th Cir. 1998).

173

Jones v. Barnes, 463 U.S. 745, 751–52 (1983).

174

Anderson v. Quarterman, 204 F. App’x 402, 410 (5th Cir. 2006).

30

Smith v. Robbins, where the Supreme Court recognized that “[g]enerally, only when ignored issues
are clearly stronger than those presented, will the presumption of effective assistance of counsel
be overcome.” 175 However, Petitioner presents no argument as to how the claims he contends
appellate counsel should have raised were meritorious. Therefore, Petitioner has not demonstrated
that his appellate counsel’s decision not to raise these issues on appeal was objectively
unreasonable or that, but for the failure to raise the issue, the result of the proceeding would have
been different. Accordingly, the state courts’ denial of relief on Petitioner’s ineffective assistance
of appellate counsel claim was not contrary to, or an unreasonable application of, Supreme Court
law.
C.

Prosecutorial Misconduct Claim
The Magistrate Judge found that Petitioner was not entitled to relief on his claim that the

prosecutor violated his due process rights during rebuttal argument. 176 Petitioner objects to this
determination, arguing that the prosecutor “repeatedly interjected facts that were not in evidence
and a call to be the voice of the victim” in her closing arguments. 177 Petitioner also asserts that the
prosecutor’s statement that he had time for his “blood to cool” is contradicted by the evidence
which established “an unbroken chain of events.” 178 Specifically, Petitioner contends that “[h]e
found the semen stained underwear, got his gun, got his car and drove to the bar where his wife
drank til dawn every night and shot her.” 179 Petitioner argues that he is not asserting that but for
the prosecutor’s “improper, inflammatory rebuttal closing argument” he would not have been
175

528 U.S. 259, 288 (2000) (quoting Gray v. Greer, 800 F.2d 644, 646 (7th Cir. 1986)).

176

Rec. Doc. 19 at 42–47.

177

Rec. Doc. 22 at 6.

178

Id.

179

Id.

31

convicted, but instead that the closing argument resulted in a conviction for second degree murder
rather than manslaughter. 180 Accordingly, the Court reviews this claim de novo. 181
In Jones v. Butler, the Fifth Circuit explained that “improper jury argument by the state
does not present a claim of constitutional magnitude in a federal habeas action unless it is so
prejudicial that the state court trial was rendered fundamentally unfair within the meaning of the
Due Process Clause of the Fourteenth Amendment.” 182 “[I]t is not enough that the prosecutors’
remarks were undesirable or even universally condemned. The relevant question is whether the
prosecutors’ comments so infected the trial with unfairness as to make the resulting conviction a
denial of due process.” 183 The Fifth Circuit instructs that courts should apply a two-step analysis
when reviewing claims of prosecutorial misconduct. 184 First, the Court must determine whether
the prosecutor made an improper remark. 185 “If an improper remark was made, the second step is
to evaluate whether the remark affected the substantial rights of the defendant.” 186 To satisfy the
second step, “the petitioner must demonstrate that the misconduct is persistent and pronounced or
that the evidence of guilt was so insubstantial that the conviction would not have occurred but for
the improper remarks.” 187

180

Id.

181

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

182

864 F.2d 348, 356 (5th Cir. 1988).

183

Darden v. Wainwright, 477 U.S. 168, 181 (1986).

184

United States v. Wise, 221 F.3d 140, 152 (5th Cir. 2000).

185

Id.

186

Id.

187

Jones, 864 F.2d at 356.

32

Petitioner argues that the prosecutor improperly attempted to garner sympathy for abused
women by improperly “highlighting the plight of abused women” and describing the victim as “a
young woman who had fought for years now to get out from underneath his control.”188
Petitioner’s defense counsel objected to these statements, and the state trial court sustained the
objection. 189 Therefore, Petitioner has demonstrated that these remarks were improper. A review
of the transcript of the closing and rebuttal arguments reflected that the prosecutor relied on
Petitioner’s statement to the police and actions tending to show that he planned the shooting to
support the State’s argument that a second-degree murder, rather than manslaughter, conviction
was warranted. Therefore, Petitioner has failed to show that the misconduct was persistent and
pronounced or that the evidence of guilt was so insubstantial that the conviction would not have
occurred but for the improper remarks. 190
Petitioner also contends that the prosecutor’s statement that he had time for his “blood to
cool” is contradicted by the evidence which established “an unbroken chain of events,” which he
asserts supports his argument that the jury should have convicted him of manslaughter rather than
murder. 191 However, Petitioner has not shown that this statement was improper or conflicted with
the evidence. As discussed supra, in his statement to the police, which was played at trial,
Petitioner admitted that he was “on a mission” when he grabbed a gun and made a plan to go to
the bar to seek out his wife. 192 Petitioner also admitted to forming a plan to take his aunt’s car and
drive to the bar to confront his wife, and that he knew he should not have grabbed his gun or shot
188

Rec. Doc. 1-2 at 19.

189

State Rec., Vol VIII of X, Trial Transcript at 160, Apr. 8, 2010.

190

Jones, 864 F.2d at 356.

191

Rec. Doc. 22 at 8.

192

Parker, 76 So. 3d at 61.

33

his wife. 193 These statements indicate that Petitioner had time to form a plan to murder his wife,
supporting the prosecutor’s argument that a second-degree murder conviction was warranted.
Accordingly, Petitioner had not established that the prosecutor’s closing arguments denied him
due process. Therefore, the state courts’ rejection of this claim was not contrary to, nor an
unreasonable application of, federal law. 194

D.

Due Process Claim
The Magistrate Judge found that Petitioner is not entitled to relief on the claim that his due

process rights were violated when the state trial court removed a seated juror over defense
counsel’s objection. 195 Specifically, Petitioner argued that a juror advised the state trial court that
he remembered Petitioner from high school, and after an inquiry in chambers regarding the juror’s
ability to be fair and impartial, the court dismissed him from the jury. 196 The Magistrate Judge
determined that Petitioner had not established that “the jury which actually presided over his case
was other than impartial or that the release of a single juror after the start of trial in any way
affected the remaining jurors’ fairness and impartiality.” 197 Petitioner does not object to this
determination. Therefore, reviewing for plain error, 198 and finding none, the Court adopts the
Magistrate Judge’s determination that the state courts’ rejection of the claim was neither contrary
to, nor an unreasonable application of, federal law.

193

Id.

194

Id. at 46–47.

195

Rec. Doc. 19 at 47–49.

196

Id. at 47.

197

Id. at 49.

198

See Douglass, 79 F.3d at 1428–29.

34

V. Conclusion
For the reasons stated above, Petitioner has not shown that the state courts’ denial of relief
on his claims was contrary to, or involved an unreasonable application of, clearly established
Federal law, as determined by the Supreme Court of the United States. 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 Roy Parker’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 12th day of September, 2017.
____

__________________________________
NANNETTE JOLIVETTE BROWN
UNITED STATES DISTRICT JUDGE

35