Neal v. Cain et al

Filing 178

ORDER AND REASONS DENYING Petitioner Jarrell Neal's 166 Motion for Partial Summary Judgment, as set forth in document. IT IS FURTHER ORDERED that an evidentiary hearing will be held on the issue of whether the forensic reports, the serology report, and the statement of Arthur Darby were disclosed to the defense before trial. Signed by Chief Judge Nannette Jolivette Brown on 3/30/2021. (jls)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
JARRELL NEAL

CIVIL ACTION

VERSUS

CASE NO. 15-5390

DARREL VANNOY, WARDEN

SECTION: “G”(3)

ORDER AND REASONS
In this litigation, Petitioner Jarrell Neal (“Petitioner”), a state prisoner incarcerated in the
Louisiana State Penitentiary in Angola, Louisiana, seeks habeas corpus relief pursuant to 28 U.S.C.
§ 2254 from his conviction for two counts of first degree murder and the sentence of death on each
count.1 At Petitioner’s request, this Court ordered an evidentiary hearing on certain claims raised by
Petitioner.2 Before the Court is Petitioner’s “Motion for Partial Summary Judgment.”3 In the instant
motion, Petitioner argues that the undisputed material facts establish that Petitioner was denied his
Sixth and Fourteenth Amendment rights to a fair trial and due process. 4 Respondent Darrel Vannoy
(“Respondent”) opposes the motion. 5 Considering the motion, the memoranda in support and in
opposition, the record, and the applicable law, the Court denies the motion and orders an evidentiary
hearing.

1

Rec. Doc. 4.

2

See Rec. Docs. 66, 120, 138, 139, 160.

3

Rec. Doc. 166.

4

Id. at 1.

5

Rec. Doc. 169.

1

I. Background
A.

Factual Background
On May 21, 1998, Petitioner was charged by Indictment with two counts of first degree murder

in Jefferson Parish, Louisiana.6 Petitioner was indicted with his older half-brother, Zannie Neal, and
their uncle, Arthur Darby (“Darby”).7 “After Darby turned state’s witness and the court severed the
brothers’ cases,” Petitioner’s case proceeded to trial by jury beginning on February 23, 1999 in the
Twenty-Fourth Judicial District Court for the Parish of Jefferson.8
The charges relate to the murders of Greg Vickers and Fergus Robinson on March 31, 1998
at the home of Claudette Hurst in Metairie, Louisiana. At Petitioner’s trial, Claudette Hurst testified
that she was at home that evening with her boyfriend Fergus Robinson, her three children, her brother
Carl Duncan, and a friend, Keinna Porter. 9 Hurst had fallen asleep on a sofa in the den. 10 At
approximately 11:30 p.m., she was awakened by “some noise” and heard Robinson “telling someone
to take it outside.”11 Hurst looked into an adjoining room and saw a person (later identified as victim
Greg Vickers) with a red hood over his head kneeling on the floor and a tall, thin person dressed in
black clothing aiming a rifle at Vickers. 12 Although Hurst was acquainted with Petitioner, she

6

State v. Neal, 2000-674 (La. 6/29/01); 796 So. 2d 649, 653.

7

Id. at 652.

8

Id.

9

Feb. 25, 1999 Trial Transcript at pp. 80–81.

10

Id. at 82.

11

Id. at 84–85.

12

Id. at 85, 106–07.

2

testified that she never saw him on the night of the shooting.13
Hurst and Robinson ran to a bedroom where Carl Duncan and Keinna Porter were smoking
marijuana.14 Duncan and Robinson held the door shut against the intruder’s repeated attempts to push
his way into the room.15 Unable to enter the room, the intruder fired multiple shots through the door,
hitting both men.16 Robinson suffered a fatal gunshot wound to his right thigh which severed his
femoral artery.17 Duncan was shot in the right arm but survived the injury.18
Greg Vickers’ body was found lying near the threshold of a side door.19 He suffered two
gunshot wounds to his neck which severed his carotid artery.20 Crime scene investigation uncovered
four spent 7.62 caliber casings, four bullet holes in the door to the bedroom, and a bloody footprint
on the tile.21 Investigators did not dust for fingerprints.22 Robinson was found holding twelve rocks
of crack cocaine in his hand, and Vickers had a crack pipe in his back pocket. 23 Both victims tested
positive for cocaine.24 Testimony was also presented to show that Robinson was a drug dealer in the

13

Id. at 90, 110.

14

Id. at 86, 116–18.

15

Id. at 118.

16

Id. at 119–20.

17

Id. at 63.

18

Id. at 120.

19

Feb. 27, 1999 Trial Transcript at pp. 10–11.

20

Feb. 25, 1999 Trial Transcript at p. 40.

21

Feb. 26, 1999 Trial Transcript at p. 144.

22

Id. at 156.

23

Id. at 177–78; Feb. 27, 1999 Trial Transcript at pp. 36–37.

24

Feb. 25, 1999 Trial Transcript at pp. 60, 69.

3

area and Vickers was a frequent customer.25
During this time, Seneca Johnson, a next-door neighbor who was seven-weeks pregnant, and
her boyfriend, Larry Osborne, were returning home from a nearby Shell station.26 While they were
sitting in Osborne’s car, the couple heard numerous gunshots and Osborne saw two men wearing ski
masks running down the sidewalk.27 As the men approached his car, Osborne noticed one of the men
carrying a rifle. 28 Osborne pushed Johnson’s head down and leaned over her but a bullet struck
Johnson in the buttocks.29
At the same time, an off-duty Jefferson Parish Sheriff’s deputy, Derrick McGee, was dropping
his father off at home around the corner from the Hurst residence.30 Deputy McGee testified that he
heard numerous gunshots and saw a black Toyota 4–Runner driving away “at a high rate of speed.”31
Deputy McGee began following the 4–Runner in his marked police cruiser.32 After observing the 4–
Runner run a stop sign and a red light, Deputy McGee activated his lights and siren and radioed for
backup, and a vehicle driven by Deputy Bourgeois joined the pursuit.33
During the chase, the deputies observed a black male (later identified as Petitioner Jarrell

25

Feb. 27, 1999 Trial Transcript at pp. 10–11.

26

Feb. 25, 1999 Trial Transcript at pp. 161–62.

27

Id. at 153, 162.

28

Id. at 153.

29

Id. at 162–63.

30

Feb. 26, 1999 Trial Transcript at pp. 6, 16.

31

Id. at 17.

32

Id. at 19.

33

Id. at 20–23.

4

Neal) lean out of the passenger’s window and begin shooting at them with an AK–47.34 Moments
later, Petitioner fell out of the 4–Runner and began running towards a nearby drainage canal.35 After
a brief chase, deputies arrested Petitioner and recovered the AK–47.36 Ballistics tests later showed
that casings recovered from inside the 4–Runner and bullets recovered from Fergus Robinson’s body
were fired from the same AK–47.37
While deputies were arresting Petitioner, the driver of the 4–Runner (later identified as Arthur
Darby) jumped out of the vehicle and ran to nearby houses, where he hid for about 15 minutes until
a K–9 unit located him.38 Both Darby and Petitioner were arrested and taken to Charity Hospital for
treatment.39 At the time of their arrests, Petitioner was wearing khaki pants and Darby was wearing
a black sweater and jeans.40 Deputies also arrested Zannie Neal who was sitting in the backseat of
the 4–Runner.41 A subsequent search of the 4-Runner yielded a .38 Colt revolver on the driver’s side
floorboard, a maroon ski mask, a Pittsburgh Steelers baseball cap, one live 7.62 round, and four spent
7.62 casings.42
As mentioned above, Darby testified for the State at Petitioner’s trial. In exchange for his

34

Id. at 27, 63–64.

35

Id. at 27.

36

Id. at 29; Feb. 26, 1999 Trial Transcript at p. 69.

37

Feb. 27, 1999 Trial Transcript at pp. 55–58.

38

Feb. 26, 1999 Trial Transcript at pp. 106–09.

39

Id. at 97.

40

Id. at 53; Feb. 26, 1999 Trial Transcript at p. 225.

41

Feb. 26, 1999 Trial Transcript at p. 108.

42

Id. at 165–67.

5

testimony, Darby pled guilty to two counts of manslaughter and was sentenced to twenty years’
imprisonment.43 At Petitioner’s trial, the State posited that the shootings had been motivated by a
drug debt owed by Franklin McQueen to Zannie Neal.44 McQueen was the stepfather of Claudette
Hurst and had stayed at Hurst’s home in the past but was not there on the night of the offense.45
At Petitioner’s trial, Darby testified that Jarrell and Zannie Neal came to his house between
9:30 and 10:00 p.m. on the night of the murders.46 According to Darby, Zannie told him that “he had
a little drama” and “might need a driver.”47 Zannie also told Darby that someone owed him money
for drugs.48 Darby testified that Zannie was driving, he was in the front seat, and Petitioner was in
the back seat.49 After they had gone about a block, Zannie asked Darby if he had his .38 pistol, which
he did not.50 Zannie told Darby he might need it so they returned to Darby’s house to retrieve the
pistol.51
When they arrived at the Hurst residence, Darby testified that Zannie told him to get in the
driver’s seat.52 According to Darby, Petitioner Jarrell Neal exited the vehicle with the AK–47 and

43

Id. at 207.

44

Feb. 25, 1999 Trial Transcript at p. 24.

45

Id. at 91.

46

Feb. 26, 1999 Trial Transcript at p. 208.

47

Id. at 209.

48

Id.

49

Id. at 212.

50

Id.

51

Id.

52

Id. at 213.

6

went inside the house with Zannie.53 Moments later, Darby heard numerous gunshots and Petitioner
and Zannie Neal came running back to the 4–Runner.54 Darby also stated that when the men returned,
Petitioner was holding the AK–47 and Zannie had a pistol.55 Darby testified that Zannie was wearing
a red ski mask and Petitioner was wearing a Steelers cap. 56 According to Darby’s testimony,
Petitioner indicated that he had shot someone in the house, and Zannie told him that his gun jammed.57
Darby further testified that as they fled from the scene Petitioner said “the ni**er was down bad for
trying to play him, but now he crying like a little b**ch.”58 Darby also testified that it was Petitioner
who shot at the police during the getaway chase.59
On February 27, 1999, Petitioner was convicted of two counts of first degree murder. 60 The
penalty phase began on March 1, 1999. 61 At the sentencing hearing, the State called Fergus
Robinson’s mother and brother and Greg Vicker’s mother and co-worker to provide victim impact
statements. 62 The defense called seven witnesses, including Petitioner’s parents and maternal
grandparents, to describe his childhood and relationship with his 3-year-old son. 63 After the

53

Id. at 213–14.

54

Id. at 215.

55

Id.

56

Id. at 215, 224.

57

Id. at 216.

58

Id.

59

Id. at 218.

60

Feb. 27, 1999 Trial Transcript at p. 162.

61

Mar. 1, 1999 Sentencing Transcript.

62

Id.

63

Id.

7

sentencing hearing, the jury unanimously recommended a sentence of death.64 With respect to each
count, the jury found that the following aggravating circumstances warranted a death sentence: (1)
Petitioner was engaged in the perpetration or attempted perpetration of an aggravated burglary; (2)
Petitioner was engaged in the attempted distribution, exchange, sale, or purchase of a controlled
dangerous substance; and (3) Petitioner knowingly created a risk of death or serious bodily harm to
more than one person.65 On June 4, 1999, the state trial court imposed the death sentences.66
B.

Procedural Background
On June 29, 2001, the Louisiana Supreme Court affirmed Petitioner’s conviction and

sentence.67 Petitioner filed a petition for writ of certiorari before the United States Supreme Court,
which was denied on March 18, 2002.68 On May 13, 2002, Petitioner’s request for rehearing was also
denied by the United States Supreme Court.69
On May 23, 2002, Petitioner filed a pro se application for post-conviction relief with the state
trial court.70 On May 31, 2002, the state trial court dismissed the application because it found that
Petitioner had not established entitlement to appointed counsel.71 On October 3, 2003, the Louisiana

64

Id. at 129–32.

65

Id. (citing La. Code Crim. Pro. 905.4(a)(1), (4), (11)).

66

Jun. 4, 1999 Sentencing Transcript.

Neal, 796 So. 2d at 653. On September 21, 2001, the Louisiana Supreme Court granted, in part, Petitioner’s
request for rehearing to clarify its opinion relative to an assignment of error regarding a jury instruction. Id. at 663–64.
67

68

Neal v. Louisiana, 535 U.S. 940 (2002).

69

Neal v. Louisiana, 535 U.S. 1075 (2002).

70

State Rec., Vol. XXI of XXXIII, Pro Se Application for Post-Conviction Relief (May 23, 2002).

71

State Rec., Vol. XXI of XXXIII, Trial Court Order (May 31, 2002).

8

Supreme Court vacated the trial court’s order.72 The Louisiana Supreme Court found that Petitioner
was entitled to post-conviction counsel and directed the trial court to give Petitioner’s counsel a
reasonable opportunity to prepare and litigate expeditiously an application for post-conviction relief.73
In 2011, post-conviction counsel supplemented the post-conviction relief application before
the state trial court.74 On October 9, 2013, the state trial court dismissed Petitioner’s claims.75 On
April 17, 2015, the Louisiana Supreme Court denied Petitioner’s related writ application without
written reasons.76 Petitioner filed a petition for writ of certiorari before the United States Supreme
Court, which was denied on January 11, 2016.77
Petitioner filed this federal habeas petition on February 10, 2016.78 Petitioner raises twentyone grounds for relief: (1) Petitioner’s due process rights were violated by the State’s suppression of
material favorable evidence and impeachment information under Brady v. Maryland; (2) the State
violated Napue v. Illinois by failing to correct false and misleading testimony of state witnesses; (3)
trial counsel was ineffective for failing to object to the prosecution’s repeated statements to the jury
that Arthur Darby’s testimony was “the truth;” (4) trial counsel performed ineffectively by failing to
impeach Arthur Darby with available impeachment evidence; (5) trial counsel was ineffective for

72

State ex rel. Neal v. Cain, 2002-2258 (La. 10/3/03); 871 So. 2d 1071.

73

Id.

74

State Rec., Vol. X of XXXIII, Supplemental Petition for Post-Conviction Relief and Motion for Evidentiary

75

State Rec., Vol. XX of XXXIII, Order Denying Application for Post-Conviction Relief, Oct. 9, 2013.

76

State v. Neal, 14-KP-0259 (La. 4/17/2015), 168 So. 3d 391.

77

Neal v. Louisiana, 577 U.S. 1069, 136 S.Ct. 793 (2016).

78

Rec. Doc. 4.

Hearing.

9

failing to challenge the State’s forensic evidence; (6) prosecutorial misconduct violated Petitioner’s
right to a fair trial; (7) Petitioner’s due process rights were violated by the State’s improper
introduction of other crimes evidence; (8) the State struck multiple qualified African-American jurors
under the guise of discriminatory pretext in violation of the Equal Protection Clause; (9) extrajudicial
information violated Petitioner’s right to a fair trial and to confront the witnesses against him due to
counsel’s ineffective assistance at voir dire; (10) the trial court impermissibly granted multiple
challenges for cause, ensuring that the jury was unconstitutionally biased toward imposing the death
penalty; (11) trial counsel was ineffective for failing to investigate and prepare for the guilt phase of
trial; (12) Petitioner’s right to confrontation was violated by the admission of hearsay evidence at his
trial and trial counsel was ineffective for failing to challenge the hearsay evidence; (13) trial counsel
was ineffective for failing to investigate and present powerful and readily-available mitigation
evidence; (14) Petitioner’s Eighth and Fourteenth Amendment rights were violated when the jury was
impermissibly told and instructed multiple times that their verdict was not the final determination of
Petitioner’s sentence; (15) Petitioner’s conviction, obtained through improper jury instructions, is a
violation of due process and trial counsel was ineffective for failing to object to the jury instructions;
(16) Petitioner’s death sentence rests on insufficient evidence of the aggravating circumstances; (17)
trial counsel was ineffective for failing to challenge and explain the State’s evidence of Petitioner’s
prior criminal history; (18) Petitioner’s execution would violate the Eighth Amendment to the United
States Constitution; (19) Petitioner’s execution is constitutionally excessive; (20) cumulative error
caused by ineffective assistance of counsel requires reversal; and (21) cumulative error caused by the
State’s withholding of favorable material evidence requires reversal.79 Respondent filed a response

79

Id.

10

to the habeas corpus petition on July 15, 2016.80
On November 18, 2016, Petitioner filed a motion requesting leave to file an amendment to the
petition for writ of habeas corpus to add a claim that both his trial and post-conviction counsel were
ineffective for failing to investigate a key witness, Emmett Taylor (“Taylor”), who could have
testified that Arthur Darby admitted that his testimony was not the truth. 81 Respondent opposed the
motion.82 On May 2, 2017, the Court granted the motion to amend.83 On July 1, 2017, Respondent
filed a response to the amended petition.84
On January 12, 2017, Petitioner filed a “Motion for Evidentiary Hearing.”85 Petitioner noticed
the motion for submission on June 7, 2017.86 On April 19, 2017, Respondent filed an opposition to
the motion.87 On July 19, 2017, with leave of Court, Petitioner filed a reply brief in further support
of the motion for an evidentiary hearing.88 On August 28, 2017, the Court granted Petitioner’s motion
to the extent it requested a hearing on Petitioner’s procedurally defaulted claims raised under Martinez
v. Ryan.89

80

Rec. Doc. 12.

81

Rec. Doc. 27.

82

Rec. Doc. 45-1 at 1.

83

Rec. Doc. 53.

84

Rec. Doc. 60.

85

Rec. Doc. 35.

86

Rec. Doc. 35-2.

87

Rec. Doc. 51.

88

Rec. Doc. 61.

89

Rec. Doc. 66.

11

On January 29, 2019, the Court called a status conference to discuss the status of the case. 90
Considering Petitioner’s counsel’s representation that additional time was needed to investigate the
case, the Court issued an Order staying the case.91
On February 25, 2019, Petitioner filed a “Motion for Leave to File Amendment to Petition for
Habeas Corpus.” 92 Petitioner sought leave of Court to amend the habeas petition to raise four
additional claims.93
In the motion to amend, Petitioner noted that he received leave of Court to conduct DNA
testing of evidence retained by the Jefferson Parish Sheriff’s Office Crime Lab.94 Petitioner asserted
that his counsel had received preliminary findings showing that there is a reasonable likelihood that
the blood found on the left Nike brand tennis shoe Darby was wearing on the night of the murders
came from one of the victims, Greg Vickers.95 In light of this additional evidence, Petitioner sought
leave of Court to amend the habeas petition to raise the following claims: (23) Petitioner is actually
innocent of the murders of Gregory Vickers and Fergus Robinson; (24) both trial and post-conviction
counsel were ineffective for failing to conduct DNA testing on the thread created by the JPSO Crime
lab to preserve blood evidence recovered from Darby’s left shoe; (25) the cumulative effects of the
Brady evidence requires reversal; and (26) the cumulative error caused by ineffective assistance of

90

Rec. Doc. 90.

91

Rec. Doc. 93.

92

Rec. Doc. 94.

93

Rec. Doc. 94-4.

94

Id. at 1.

95

Id. at 2.

12

counsel requires reversal.96 Respondent opposed the motion.97 On April 29, 2019, the Court granted
the motion to amend.98 On July 1, 2019, Respondent filed a response to the amended petition.99
On August 13, 2019, the Court called a status conference to discuss the status of the case.100
During the status conference, the Court set the evidentiary hearing for January 21, 2020.101 The Court
also ordered that the evidentiary hearing would include claims involving new evidence asserted in the
amended petition for habeas relief.102
On September 4, 2019, the Court granted a motion to substitute counsel filed by
Respondent.103 On October 29, 2019, the Court called another status conference for the parties to
provide the Court with an update on the status of the case.104 At that time, counsel for Respondent
indicated that Respondent intended to file a motion to continue the evidentiary hearing. 105 On
December 23, 2019, the Court granted a motion to continue filed by Respondent, 106 and set the
evidentiary hearing for April 21, 2020.107 On April 14, 2020, the Court continued the evidentiary

96

Id. at 7–12, 14.

97

Rec. Doc. 98.

98

Rec. Doc. 104.

99

Rec. Doc. 112.

100

Rec. Doc. 119.

101

Id.

102

Id.

103

Rec. Doc. 123.

104

Rec. Doc. 126.

105

Id.

106

Rec. Doc. 138.

107

Rec. Doc. 139.

13

hearing due to the COVID-19 pandemic.108 On April 21, 2020, the Court held a status conference for
the parties to provide the Court with an update on the status of the case. 109 The Court set the
evidentiary hearing for June 30, 2020.110
On May 5, 2020, Petitioner filed the instant Motion for Partial Summary Judgment.111 On
May 18, 2020, Respondent filed an opposition to the motion.112 On June 2, 2020, Petitioner, with
leave of Court, filed a reply brief in further support of the motion.113 On June 11, 2020, Petitioner
filed a motion to continue the evidentiary hearing due to the COVID-19 pandemic.114 On June 12,
2020, the Court granted the motion and continued the evidentiary hearing.115
II. Parties’ Arguments
A.

Petitioner’s Arguments in Support of the Motion for Partial Summary Judgment
In the instant motion, Petitioner argues that the undisputed material facts establish that he was

denied his Sixth and Fourteenth Amendment rights to a fair trial and due process.116 Petitioner asserts
that the prosecution failed to disclose material impeachment evidence and other favorable evidence
contradicting the testimony of the prosecution’s key witness, Arthur Darby.117 Petitioner contends

108

Rec. Doc. 156.

109

Rec. Doc. 159.

110

Rec. Doc. 160.

111

Rec. Doc. 166.

112

Rec. Doc. 169.

113

Rec. Doc. 173.

114

Rec. Doc. 175.

115

Rec. Doc. 176.

116

Rec. Doc. 166 at 1.

117

Id.

14

that the value of this evidence—viewed cumulatively—undermines confidence in the jury’s verdicts
in light of the State’s evidence at trial.118 Therefore, Petitioner moves for partial summary judgment
on the Brady claims.119 “Because this claim provides clear-cut grounds for relief, [Petitioner asserts
that] it would be in the interest of judicial economy if this Court would issue partial summary
judgment without the need to rule on the other legally and factually complex claims in [the] Petition
and Amended Petitions.”120
Specifically, Petitioner submits that there is no genuine issue of material fact in dispute and
there is a reasonable probability that the result of the proceeding would have been different had the
undisclosed evidence been before the jury, in light of the following undisputed facts:
(1) Arthur Darby testified at Mr. Neal’s 1999 trial that Mr. Neal and his brother
committed this murder while Darby remained in the vehicle;
(2) A shoe collected by the State as evidence and identified as being seized from Darby
tested positive for the presence of blood, and samples of the blood taken from his shoe
were saved for DNA testing;
(3) affidavits submitted by Mr. Neal establish that trial counsel never received a copy
of the serology report;
(4) DNA testing establishes that the blood of the victim, Greg Vickers, was found on
the Nike shoe attributed by the JPSO Chain of Custody and numerous additional law
enforcement documents to Darby;
(5) Arthur Darby gave a conflicting version of the events in a statement taken by
members of the Jefferson Parish District Attorney’s Office just days before the start of
trial, including a statement that Jarrell Neal did not have a weapon when he left the
vehicle; and
(6) Forensic shoeprint analysis conducted by the State found that Zannie Neal’s Nike
shoe could not be excluded as the source of a bloody shoeprint found near Gregory
Vickers’ body at the scene.121

118

Id.

119

Id. at 2.

120

Id.

121

Rec. Doc. 166-1 at 3.

15

According to Petitioner, if the serology and DNA test results connecting Darby to the scene of the
crime and Darby’s prior inconsistent statements had been presented to the jury, there is a reasonable
probability that the verdict or sentence would have been more favorable to Petitioner. 122 When
viewed in the light most favorable to the Respondent, Petitioner contends that there is no genuine
issue of material fact in dispute and Petitioner is entitled to summary judgment and the issuance of
the writ of habeas corpus as a matter of law.123
To the extent that the Brady claims were adjudicated on the merits in state court, Petitioner
argues that the state court’s decision was based on an unreasonable determination of the facts in light
of the evidence or an unreasonable application of clearly established federal law. 124 Further,
Petitioner asserts that the Brady claims have “been fundamentally changed and strengthened by the
DNA analysis of the blood on Darby’s shoe and results matching the victim—which was not before
the state court due to the ineffectiveness of post-conviction counsel.”125 Because Brady claims must
be considered cumulatively, Petitioner contends that the ultimate ruling of the state court denying
relief is unworthy of deference.126
According to Petitioner, the parties are in agreement that Darby’s February 22, 1999 police
statement was not turned over to the defense at trial.127 Moreover, Petitioner notes that the state trial

122

Id.

123

Id.

124

Id. at 20.

125

Id.

126

Id.

127

Id. (citing Rec. Doc. 12 at 15).

16

court affirmatively found that there were two Brady statements contained on the audiotape. 128
However, the state trial court in post-conviction found that the prior statement was actually disclosed
to defense counsel at trial.129 Petitioner contends that this was an unreasonable determination of the
facts in light of the evidence before the state trial court.130
Petitioner also argues that the state trial court unreasonably found that the shoeprint analysis
report did not exclude Petitioner as the source of a bloody shoeprint.131 Petitioner asserts that the
JPSO crime lab found that evidence item #78, described as Petitioner’s black work boots, was “not
like the pattern of the partial print” on the tile, and that the pattern of Zannie Neal’s black Nikes
“cannot be excluded as the possible origin of the partial print.”132 Therefore, Petitioner argues that
the only reasonable reading of the report is that his boots were excluded as the source of the bloody
shoeprint.133
Next, Petitioner notes that the state court’s only finding with respect to the serology report,
which indicated “possible blood” on Darby’s shoe and noted that a sample of the possible blood was
saved for DNA testing, was that the report “[did] not necessarily exculpate the defendant.” 134
Petitioner asserts that this finding was an unreasonable application of clearly established federal

128

Id.

129

Id.

130

Id.

131

Id.

132

Id. at 20–21.

133

Id. at 21.

134

Id.

17

law.135 Petitioner contends that in order to be favorable, evidence does not have to “exculpate” the
defendant—it can also inculpate an alternate suspect.136 Petitioner asserts that the state trial court
unreasonably applied the Brady standard by requiring him to show that the withheld evidence
“necessarily exculpate[d]” him rather than showing a reasonable probability of a different result.137
To the extent that the state trial court found that the forensic reports were disclosed to the
defense before trial, Petitioner asserts that this factual finding was unreasonable in light of the
evidence before the court.138 Specifically, Petitioner asserts that the evidence before the state trial
court was: (1) an unsigned letter dated January 19, 1999; (2) a return receipt dated February 3, 1999,
signed by defense attorney Ralph Barnett, which did not describe the contents of the mailing; and (3)
a sworn declaration of Ralph Barnett stating that he did not recall receiving the reports but that if he
had, he would have used them at trial.139 Therefore, Petitioner argues that the state court’s factual
finding was unreasonable in light of the evidence before it.140
Finally, Petitioner claims that the prosecution suppressed the rap sheet of Keinna Porter
(“Porter”), a witness against Petitioner at trial.141 Petitioner contends that Porter’s rap sheet shows a
an arrest prior to Petitioner’s trial.142 Petitioner notes that the state court’s ruling makes no mention

135

Id. at 21.

136

Id. (citing Kyles v. Whitley, 514 U.S. 419, 447 (1995)).

137

Id. at 22.

138

Id. at 23.

139

Id.

140

Id.

141

Id. at 22.

142

Id.

18

of the fact that the arrest was withheld.143 Instead, the state court found that “[s]he pled as charged
and did not receive a reduced sentence.” 144 Petitioner asserts that this ruling is an unreasonable
determination of facts in light of the evidence before the court, as the claim is based on the
withholding of her arrest and pending charges and not the post-trial plea.145
In the alternative, Petitioner contends that he is entitled to habeas relief because even if the
reports were provided, defense counsel was ineffective for failing to use the reports at trial. 146
Petitioner argues that his trial counsel had a duty to consult with independent forensic experts, both
to potentially present in the defense’s case and to properly cross-examine the State’s experts. 147
Petitioner asserts that this Court need not resolve the question of whether the prosecution disclosed
the reports because Brady’s “materiality” standard “is identical to” the prejudice standard for
ineffective assistance of counsel claims. 148 According to Petitioner, “[w]hether the reports were
disclosed or withheld, the outcome is the same: Mr. Neal’s conviction and death sentence are
unworthy of confidence.”149
Accordingly, because Petitioner was convicted and sentenced to death by a jury who never
heard critical forensic evidence pointing to an alternate suspect, in addition to other impeachment
information, Petitioner asserts that the resulting conviction and sentence is unconscionable and

143

Id.

144

Id.

145

Id.

146

Id. at 25.

147

Id.

148

Id. at 26 (quoting Johnson v. Scott, 68 F.3d 106, 109–10 (5th Cir. 1995)).

149

Id.

19

unconstitutional.150
B.

Respondent’s Arguments in Opposition to the Motion for Partial Summary Judgment
In opposition, Respondent asserts that the claims upon which Petitioner seeks summary

judgment were adjudicated on the merits by the state trial court.151 With regard to Petitioner’s claims
that the prosecution suppressed forensic testing reports, Respondent notes that the trial court found:
Upon review, the forensic reports do not necessarily exculpate the defendant or
exclude him as the source of a bloody shoe print. Furthermore, the reports were
provided to defense counsel in a letter sent via certified mail January 19, 1999 for
which defense counsel signed acknowledging receipt. In addition, defense counsel’s
sworn affidavit confirms that it is his signature on the postal return receipt card.152
With regard to Petitioner’s claims that the prosecution suppressed Arthur Darby’s second
audio recorded statement, the Respondent notes that the trial court found:
This claim is without merit. The defendant has not demonstrated how disclosure was
untimely or prejudicial to his case. The record indicates that defense counsel had each
of the statements to which the defendant refers.153
With regard to Petitioner’s claims that the prosecution failed to disclose a prior arrest record
of witness Keinna Porter, Respondent notes that the trial court found:
Defendant’s claims regarding Keinna Porter are also without merit. She pled as
charged and did not receive a reduced sentence. There is nothing in the record to
suggest that there was a deal with Porter in exchange for her testimony or that she
benefited from testifying at trial.154
Respondent argues that the record in this case reveals many material facts which contradict

150

Id. at 27.

151

Rec. Doc. 169 at 2.

152

Id. at 5.

153

Id.

154

Id. at 6.

20

those in Petitioner’s Statement of Facts and which preclude summary judgment in this case. 155
Considering the facts in the light most favorable to Respondent and drawing every inference in
Respondent’s favor, Respondent asserts that Petitioner has failed to carry his heavy burden of
producing clear and convincing evidence sufficient to overcome the presumption in favor of the state
court’s resolution of the claims.156
C.

Petitioner’s Arguments in Further Support of the Motion for Partial Summary Judgment
In reply, Petitioner argues that summary judgment must be granted because “there can be no

dispute [] that the evidence the jury never heard at trial would have fundamentally changed the State’s
case against [Petitioner], and the verdict is unworthy of confidence.”157 Petitioner submits that “what
has become clear in the course of this litigation is that regardless of whether the evidence was withheld
by the prosecution, or overlooked by unprepared defense counsel, the evidence was material to the
issue of guilt and/or sentence, was never presented to the jury who convicted Mr. Neal and sentenced
him to death, and as such, Mr. Neal is entitled to habeas relief.”158
Petitioner asserts that this Court must examine the evidence the State presented at trial and
determine whether the withheld evidence that has been disclosed since then would have changed the
result, whether as to guilt or penalty.159 Furthermore, even “[i]f this Court is not convinced that the
evidence was in fact withheld,” Petitioner contends that Brady “materiality” standard “is identical to”

155

Id.

156

Id.

157

Rec. Doc. 173 at 1.

158

Id. at 2.

159

Id. at 17.

21

the prejudice standard for ineffective assistance of counsel claims. 160 Petitioner argues that “[t]here
is no material dispute as to the core facts needed to resolve this issue.”161 Petitioner asserts that
holding “a full-fledged evidentiary hearing delving into the matters argued by the Respondent would
waste judicial resources with irrelevant matters. . . .”162 Therefore, Petitioner requests that this Court
issue partial summary judgment, finding that Petitioner “is incarcerated based on a conviction and
sentence obtained in violation of his Sixth and Fourteenth Amendment rights, whether due to the
State’s Brady violation or his attorney’s ineffective assistance.”163
III. Legal Standard
A.

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.”164
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.”165 Pursuant to 28 U.S.C. § 2254(e)(1), “a determination of a factual issue made by a
State court [is] presumed to be correct,” and the petitioner has “the burden of rebutting the

160

Id. (citing Johnson, 68 F.3d at 109–10).

161

Id.

162

Id.

163

Id.

164

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

165

28 U.S.C. § 2254(d)(2).

22

presumption of correctness by clear and convincing evidence.”166
“[A] state-court factual determination is not unreasonable merely because the federal habeas
court would have reached a different conclusion in the first instance.”167 “[E]ven if ‘[r]easonable
minds reviewing the record might disagree’ about the finding in question, ‘on habeas review that does
not suffice to supersede the trial court’s . . . determination.’”168 However, “[e]ven in the context of
federal habeas, deference does not imply abandonment or abdication of judicial review, and does not
by definition preclude relief.”169
A state court’s determinations on mixed questions of law and fact or pure issues of law 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.”170 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.171

166

28 U.S.C. § 2254(e)(1).

167

Wood v. Allen, 558 U.S. 290, 301 (2010).

168

Id. (quoting Williams v. Taylor, 529 U.S. 362, 410 (2000)).

169

Brumfield v. Cain, 576 U.S. 305, 314 (2015) (quoting Miller–El v. Cockrell, 537 U.S. 322, 340 (2003)
(internal quotation marks omitted)).
170

28 U.S.C. § 2254(d)(1).

171

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

23

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.’”172 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.”173
AEDPA requires “a state prisoner [to] show that the state court’s ruling on the claim being
presented in federal court was so lacking in justification that there was an error . . . beyond any
possibility for fairminded disagreement.”174 However, the AEDPA’s deferential standards of review
apply only to claims adjudicated on the merits by the state courts.175 Claims that were not adjudicated
on the merits by the state courts are reviewed “de novo without applying AEDPA-mandated
deference.”176
B.

Legal Standard on a Motion for Summary Judgment
Summary judgment is appropriate when the pleadings, discovery, and affidavits demonstrate

“no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of
law.”177 To decide whether a genuine dispute as to any material fact exists, the court considers “all
of the evidence in the record but refrains from making credibility determinations or weighing the

172

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

173

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

174

Burt v. Titlow, 571 U.S. 12, 20 (2013) (quoting Harrington v. Richter, 562 U.S. 86, 103 (2011)).

175

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

176

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

177

Fed. R. Civ. P. 56(a); see also Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994).

24

evidence.”178 All reasonable inferences are drawn in favor of the nonmoving party.179
When ruling on a motion for summary judgment in a federal habeas case, courts “apply the
ordinary summary judgment standards, except when they conflict with the habeas rules.”180 When
Section 2254(e)(1)’s presumption of correctness attaches to a particular state court finding of fact, it
“overrides the ordinary rule that, in a summary judgment proceeding, all disputed facts must be
construed in the light most favorable to the nonmoving party.”181 Unless the petitioner “can rebut the
presumption of correctness by clear and convincing evidence as to the state court’s findings of fact,
they must be accepted as correct.”182
IV. Analysis
In the instant motion, Petitioner argues that the undisputed material facts establish that he was
denied his Sixth and Fourteenth Amendment rights to a fair trial and due process.183 First, Petitioner
moves for partial summary judgment on the Brady claims.184 Petitioner asserts that the prosecution
failed to disclose material impeachment evidence and other favorable evidence contradicting the
testimony of the prosecution’s key witness, Arthur Darby.185 Petitioner contends that the value of this

178

Delta & Pine Land Co. v. Nationwide Agribusiness Ins. Co., 530 F.3d 395, 398–99 (5th Cir. 2008).

179

Galindo v. Precision Am. Corp., 754 F.2d 1212, 1216 (5th Cir. 1985); Little, 37 F.3d at 1075.

180

Austin v. Davis, 647 F. App’x 477, 483 (5th Cir. 2016) (citing Smith v. Cockrell, 311 F.3d 661, 668 (5th Cir.
2002), abrogated on other grounds by Tennard v. Dretke, 542 U.S. 274 (2004)).
181

Id.

182

Smith, 311 F.3d at 668 (internal citations and quotation marks omitted).

183

Rec. Doc. 166 at 1.

184

Id. at 2.

185

Id.

25

evidence—viewed cumulatively—undermines confidence in the jury’s verdict.186 In the alternative,
Petitioner contends that he is entitled to habeas relief because even if the forensic and serology reports
were provided, defense counsel was ineffective for failing to use the reports at trial.187 The Court
addresses each of these issues in turn.
A.

Suppression of Evidence Claims
Petitioner argues that the State withheld the following six pieces of material evidence from

the defense: (1) forensic reports showing that Zannie Neal’s shoes could not be excluded as the source
of the bloody shoeprint found at the scene;188 (2) a serology report indicating that there was blood on
Darby’s shoe; 189 (3) an inconsistent prior statement of Darby; 190 (4) letters from Zannie Neal to
Darby;191 (5) evidence regarding pending charges against witness Keinna Porter and an apparent plea
deal;192 and (6) all of the initial and supplemental reports of the police officers that were prepared
before trial. 193 Petitioner also asserts that the cumulative effects of the Brady evidence requires
reversal.194 Petitioner now moves for summary judgment on these claims.195

186

Id.

187

Rec. Doc. 166-1 at 25.

188

Rec. Doc. 4 at 24–27.

189

Id. at 27–29.

190

Id. at 29–39.

191

Id. at 39–41.

192

Id. at 41–42.

193

Id. at 42–44.

194

Rec. Doc. 105 at 13–14. It is unclear whether this is a separate claim, as Supreme Court precedent requires
that the Court must consider the cumulative effect of Brady evidence. Kyles, 514 U.S. at 421–22.
195

Rec. Doc. 166.

26

1.

The Brady Standard

In Brady v. Maryland, the Supreme Court held that “suppression by the prosecution of
evidence favorable to an accused [] violates due process where the evidence is material either to guilt
or to punishment, irrespective of the good faith or bad faith of the prosecution.”196 The prosecutor’s
duty to provide favorable evidence includes impeachment evidence and exculpatory evidence.197 The
prosecutor’s duty to disclose evidence includes both evidence in its own possession and any other
“favorable evidence known to the others acting on the government’s behalf in the case, including the
police.”198 “[T]he duty to disclose such evidence is applicable even though there has been no request
by the accused.”199
To prevail on a Brady claim, Petitioner must show: (1) the prosecutor suppressed evidence;
(2) the evidence is favorable to the defense; and (3) the evidence is material to guilt or punishment.200
“[E]vidence is material only if there is a reasonable probability that, had the evidence been disclosed
to the defense, the result of the proceeding would have been different. A ‘reasonable probability’ is a
probability sufficient to undermine confidence in the outcome.”201 The materiality analysis “is not a
sufficiency of evidence test.”202 ‘“The question is not whether the defendant would more likely than
not have received a different verdict with the evidence,’ or whether, ‘after discounting the inculpatory

196

373 U.S. 83, 87 (1963).

197

United States v. Bagley, 473 U.S. 667, 676 (1985).

198

Kyles, 514 U.S. at 437.

199

Strickler v. Greene, 527 U.S. 263, 279 (1999).

200

Brady, 405 U.S. at 154.

201

Bagley, 473 U.S. at 682.

202

Kyles, 514 U.S. at 434.

27

evidence in light of the undisclosed evidence, there would not have been enough left to convict.’”203
To succeed on a Brady claim, a defendant must “show[] that the favorable evidence could reasonably
be taken to put the whole case in such a different light as to undermine confidence in the verdict.”204
“A Brady violation is more likely to occur when the impeaching evidence ‘would seriously undermine
the testimony of a key witness on an essential issue or there is no strong corroboration.’”205 “When
there are a number of Brady violations, a court must analyze whether the cumulative effect of all such
evidence suppressed by the government raises a reasonable probability that its disclosure would have
produced a different result.”206
“[A] Brady determination is inevitably a contextual inquiry, involving questions of both law
and fact.”207 A Brady inquiry “is intimately intertwined with the trial proceedings: because the court
must judge the effect of the evidence on the jury’s verdict, the Brady decision can never be divorced
from the narrative of the trial. In addition, the court must consider not simply the withheld evidence
in isolation, but also the quantity and quality of other evidence in the record.” 208 “[W]hen the
undisclosed evidence is merely cumulative of other evidence [in the record], no Brady violation
occurs.”209 “Similarly, when the testimony of the witness who might have been impeached by the

203

Mahler v. Kaylo, 537 F.3d 494, 500 (5th Cir. 2008) (quoting Kyles, 514 U.S. at 434–35).

204

Kyles, 514 U.S. at 435.

205

LaCaze v. Warden Louisiana Corr. Inst. for Women, 645 F.3d 728, 736 (5th Cir. 2011) (quoting Rocha v.
Thaler, 619 F.3d 387, 396 (5th Cir. 2010)).
206
United States v. Sipe, 388 F.3d 471, 478 (5th Cir. 2004) (citing Kyles, 514 U.S. at 421–22; United States v.
Freeman, 164 F.3d 243, 248 (5th Cir. 1999)).
207

Id. at 479.

208

Id.

209

Id. (quoting Spence v. Johnson, 80 F.3d 989, 995 (5th Cir. 1996)).

28

undisclosed evidence is strongly corroborated by additional evidence supporting a guilty verdict, the
undisclosed evidence generally is not found to be material.” 210 Conversely, if the impeaching
evidence “would seriously undermine the testimony of a key witness on an essential issue or there is
no strong corroboration, the withheld evidence has been found to be material.”211
The state trial court found that Petitioner’s Brady claims were meritless,212 and the Louisiana
Supreme Court denied relief without providing additional reasons. 213 When a Brady claim has been
adjudicated on the merits by the state courts, a federal habeas court does not decide de novo whether
a state prisoner has sufficiently proven a Brady violation. 214 Instead, the Court must determine
“whether the state court’s Brady determination resulted in a decision that is contrary to, or involved
an unreasonable application of, clearly established federal law.” 215 Therefore, on federal habeas
review, a petitioner “must show that the prosecution’s failure to disclose requested impeachment
evidence constituted a violation of due process pursuant to Brady, and that the state court’s application
of Brady was unreasonable.”216
2.

Alleged Brady Violations

In the order denying post-conviction relief, the state trial court found that there was no Brady

210

Id. (citing Wilson v. Whitley, 28 F.3d 433, 439 (5th Cir. 1994)).

211

Id. (quoting United States v. Weintraub, 871 F.2d 1257, 1262 (5th Cir. 1989)).

212

State Rec., Vol. XX of XXXIII, Order Denying Application for Post-Conviction Relief at p.1, Oct. 9, 2013.

213

State v. Neal, 14-KP-0259 (La. 4-17-15), 168 So. 3d 391.

214

Dickson v. Quarterman, 462 F.3d 470, 474 (5th Cir. 2006) (quoting Yarborough v. Alvarado, 541 U.S. 652,
665 (2004)).
215

Id. (quoting Busby v. Dretke, 359 F.3d 708, 717 (5th Cir. 2004)).

216

LaCaze v. Warden La. Corr. Inst. for Women, 645 F.3d 728, 735 (5th Cir. 2011) (citing Mahler, 537 F.3d at

499).

29

violation with respect to the forensic and serology reports and the prior statement of Darby because
each was disclosed to the defense before trial.217 With respect to the letter from Zannie Neal, the
charges pending against Keinna Porter, and the police reports, the state trial court found that although
the evidence was not disclosed to the defense, no Brady violation occurred.218 Each of these findings
is addressed in turn.
For clarity due to the detailed facts surrounding each sub-issue, each alleged piece of Brady
material is addressed individually below. However, the effect of Brady violations must be viewed
cumulatively. “When there are a number of Brady violations, a court must analyze whether the
cumulative effect of all such evidence suppressed by the government raises a reasonable probability
that its disclosure would have produced a different result.”219 Therefore, the Court concludes by
addressing the cumulative effects of the evidence.
a.

Forensic and Serology Reports

Petitioner contends that the State withheld forensic reports, which indicated that Petitioner’s
shoes were excluded as the source of the bloody shoeprint found at the scene of the crime and that
Zannie Neal’s shoes could not be excluded as the source.220 Petitioner also contends that the State
withheld a serology report indicating that there was “the possible presence of blood” on Darby’s
shoe.221 With respect to these claims the state trial court found as follows:
Upon review, the forensic reports do not necessarily exculpate the defendant or
217

State Rec., Vol. XX of XXXIII, Order Denying Application for Post-Conviction Relief at pp. 1–2, Oct. 9,

218

Id. at 2.

219

Sipe, 388 F.3d at 478.

220

Rec. Doc. 4 at 24.

221

Id. at 27–28.

2013.

30

exclude him as the source of a bloody shoe print. Furthermore, the reports were
provided to defense counsel in a letter sent via certified mail January 19, 1999 for
which defense counsel signed acknowledging receipt. In addition, defense
counsel’s sworn affidavit confirms that it is his signature on the postal return receipt
card.222
“Brady claims are properly considered under § 2254(d)(1) rather than § 2254(d)(2) because
they ‘involve mixed questions of law and fact.’”223 Under Section 2254(d)(1), this Court does “not
decide de novo whether a state prisoner has sufficiently proven a Brady violation.”224 Instead, the
Court decides whether the state court’s Brady determination resulted in a decision that is contrary to,
or involved an unreasonable application of, clearly established federal law.”225 A state-court decision
is contrary to clearly established federal law “if the state court arrives at a conclusion opposite to that
reached by [the Supreme Court] on a question of law or if the state court decides a case differently
than [the] Court has on a set of materially indistinguishable facts.”226 A state-court decision is an
unreasonable application of federal law “if the state court identifies the correct governing legal
principle from [the Supreme Court’s] decisions but unreasonably applies that principle to the facts of
the prisoner’s case.”227
In this case, the state trial court found that the forensic and serology reports were disclosed to
the defense before trial. Of course, to succeed on a Brady claim, Petitioner must make the threshold

222

State Rec., Vol. XX of XXXIII, Order Denying Application for Post-Conviction Relief at pp. 1–2, Oct. 9,

223

Reeder v. Vannoy, 978 F.3d 272, 280 (5th Cir. 2020) (quoting Floyd v. Vannoy, 894 F.3d 143, 161 (5th Cir.

224

Dickson, 462 F.3d at 477 (citing Yarborough, 541 U.S. at 665).

225

Id. at 477–78 (citing Busby, 359 F.3d at 717).

226

Megas v. Quarterman, 281 F. App’x 330, 333 (5th Cir. 2008) (quoting Williams, 529 U.S. at 413).

227

Id.

2013.
2018)).

31

showing that the State suppressed the evidence. 228 Because the state trial court found that this
evidence was not suppressed, this Court must determine whether that factual finding was objectively
unreasonable before reaching the legal issue of whether the evidence was material.229
i.

Whether the factual finding that the evidence was disclosed was
objectively unreasonable

Petitioner asserts that the state court’s factual finding that the serology and forensic reports
were disclosed before trial was unreasonable in light of the evidence before the state trial court.230
Petitioner notes that the evidence before the state trial court was: (1) an unsigned letter dated January
19, 1999; (2) a return receipt dated February 3, 1999, signed by defense attorney Ralph Barnett, which
did not describe the contents of the mailing; and (3) a sworn declaration of Ralph Barnett stating that
he did not recall receiving the reports but that if he had, he would have used them at trial. 231 In
opposition, Respondent argues that these reports were disclosed to the defense before trial.232
The January 19, 1999 letter (pictured below) is addressed to Mr. Barnett and indicates that the
forensic and serology reports were enclosed.233 The letter includes a signature block for an assistant
district attorney who was assigned to the case but is not actually signed.234

228

Brady, 405 U.S. at 154; Megas, 281 F. App’x at 334.

See Megas, 281 F. App’x at 334 (finding that the Texas Court of Appeals’ holding that a letter was not
suppressed because it was available to the defense was not objectively unreasonable).
229

230

Rec. Doc. 166-1 at 20, 23.

231

Id. at 23.

232

Rec. Doc. 12 at 14.

233

Rec. Doc. 112-8 at 1.

234

Id.

32

The U.S. Postal Service return receipt dated February 3, 1999 is signed by defense attorney
Ralph Barnett but does not describe the contents of the mailing.235 In an affidavit dated May 2, 2011,
Mr. Barnett attests that the signature on the return receipt was his.236 In an affidavit dated August 16,
2011, Mr. Barnett attests that he did “not recall whether or not [he] received those reports from the
District Attorney’s Office. [He] would, however, expect that exculpatory reports of this kind would

235

Rec. Doc. 112-9 at 1.

236

Rec. Doc. 112-10 at 1.

33

be disclosed in open court and not by mail. [He] also believe[d] that, if [he] had received these reports,
[he] would have used them at trial to undermine the prosecution’s case against Jarrell.”237
Petitioner first raised the claim that the prosecution suppressed the forensic and serology
reports on direct appeal. 238 The State contested Petitioner’s assertion that the reports were not
disclosed and submitted the January 19, 1999 letter and the return receipt from the postal service to
the Louisiana Supreme Court to support the State’s assertion that the materials were in fact disclosed
to the defense before trial. 239 The Louisiana Supreme Court found that “[t]here is insufficient
evidence in this record for this Court to determine (1) whether the defendant’s trial counsel received
the reports prior to trial, and (2) if he did not, whether these report contained exculpatory material
under Brady.”240 Accordingly, the Louisiana Supreme Court determined that the “claim is relegated
to post-conviction relief, where an evidentiary hearing may be conducted to develop a sufficient
record on the issues raised.”241
However, on post-conviction relief, the state trial court did not conduct an evidentiary hearing.
Instead, the state trial court made a factual finding that “the reports were provided to defense counsel
in a letter sent via certified mail January 19, 1999 for which defense counsel signed acknowledging
receipt.”242 The only additional pieces of evidence submitted on post-conviction relief were the May

237
Rec. Doc. 4-1 at 68. In a third affidavit dated February 26, 2018, Mr. Barnett confirmed this prior statement.
Rec. Doc. 105-3 (“As I have stated in a previous affidavit, I do not recall if I received any scientific reports in discovery
in this case.”).
238

Neal, 796 So. 2d at 659.

239

Id. at 660.

240

Id.

241

Id.

242

State Rec., Vol. XX of XXXIII, Order Denying Application for Post-Conviction Relief at pp. 1–2, Oct. 9,

34

2, 2011 affidavit and the August 16, 2011 affidavit of defense counsel, Ralph Barnett. As discussed
above, in the May 2, 2011 affidavit, Mr. Barnett acknowledged that the signature on the return receipt
was his.243 In the August 16, 2011 affidavit, Mr. Barnett attests that he did “not recall whether or not
[he] received those reports from the District Attorney’s Office. [He] would, however, expect that
exculpatory reports of this kind would be disclosed in open court and not by mail. [He] also believe[d]
that, if [he] had received these reports, [he] would have used them at trial to undermine the
prosecution’s case against Jarrell.”244
It does not appear that the Fifth Circuit has addressed this issue, but other federal circuit courts
have held that “when a state court denies a request for an evidentiary hearing and then makes factual
determinations, the failure to hold a hearing can, in limited circumstances, render the court’s
subsequent factual findings unreasonable.”245 The Ninth Circuit, for example, has repeatedly held
that a state court’s failure to conduct an evidentiary hearing can render the state court’s factual
findings deficient and not entitled to deference under the AEDPA.246 As the Tenth Circuit recently

2013.
243

Rec. Doc. 112-10 at 1.

244

Rec. Doc. 4-1 at 68. See supra text accompanying note 236.

245
Smith v. Aldridge, 904 F.3d 874, 882–83 (10th Cir. 2018) (“We agree that when a state court denies a request
for an evidentiary hearing and then makes factual determinations, the failure to hold a hearing can, in limited
circumstances, render the court’s subsequent factual findings unreasonable.”).
246
Velasquez v. Ndoh, 824 F. App’x 498, 499 (9th Cir. 2020); Hurles v. Ryan, 752 F.3d 768, 790–91 (9th Cir.
2014) (“We have held repeatedly that where a state court makes factual findings without an evidentiary hearing or other
opportunity for the petitioner to present evidence, the fact-finding process itself is deficient, and not entitled to
deference.”) (internal citations and quotation marks omitted); Taylor v. Maddox, 366 F.3d 992, 1001 (9th Cir. 2004),
overruled on other grounds by Murray v. Schriro, 745 F.3d 984, 999–1000 (9th Cir. 2014) (“If … a state court makes
evidentiary findings without holding a hearing and giving petitioner an opportunity to present evidence, such findings
clearly result in an ‘unreasonable determination’ of the facts.”); Nunes v. Mueller, 350 F.3d 1045, 1055 (9th Cir. 2003)
(state court’s factual findings must be deemed unreasonable under section 2254(d)(2) because “state court … refused
Nunes an evidentiary hearing” and findings consequently “were made without … a hearing.”).

35

explained, “failing to hold such a hearing only overcomes AEDPA’s bar on relief if ‘any appellate
court to whom the defect [was] pointed out would be unreasonable in holding that the state court’s
fact-finding process was adequate.’”247
The facts of this case demonstrate that the state court’s failure to hold a hearing rendered the
state court’s fact-finding process inadequate. The state court’s factual finding that defense counsel
“acknowledged receipt” of the January 19, 1999 letter is unreasonable in light of the evidence
presented to the state court. Defense attorney Ralph Barnett acknowledged that he signed a certified
mail return receipt on February 3, 1999, but the return receipt does not describe the contents of the
mailing. Moreover, in an affidavit submitted to the state court, Ralph Barnett attested that he did not
recall receiving the reports. On direct appeal, the Louisiana Supreme Court recognized that a hearing
may be necessary on this issue “to develop a sufficient record on the issues raised.”248 Nevertheless,
the state trial court did not afford an opportunity for a hearing. Because the state court’s factual finding
was based on this limited, conflicting evidence and the state court did not provide an opportunity for
an evidentiary hearing, the Court concludes that the state trial court’s fact-finding process was
deficient and is not entitled to deference.249 The state court’s factual finding that the forensic and
serology reports were disclosed was objectively unreasonably in light of the evidence presented in
the state court proceeding.250

247

Smith v. Aldridge, 904 F.3d at 883 (citing Taylor, 366 F.3d at 1000).

248

Id.

249

See Hurles, 752 F.3d at 791.

250

28 U.S.C. § 2254(d)(1); Megas, 281 F. App’x at 335.

36

ii.

Whether the state court’s ruling was contrary to, or an unreasonable
application of, clearly established federal law

Assuming that the forensic and serology reports were not disclosed to the defense before trial,
the state court alternatively found that “the forensic reports do not necessarily exculpate the defendant
or exclude him as the source of a bloody shoe print.”251 This Court must determine whether the state
court’s alternative ruling that the reports are not material was contrary to, or an unreasonable
application of, federal law.
The prosecutor’s duty to provide favorable evidence includes impeachment evidence and
exculpatory evidence. 252 To prevail on a Brady claim, Petitioner must show: (1) the prosecutor
suppressed evidence; (2) the evidence is favorable to the defense; and (3) the evidence is material to
guilt or punishment.253 “[E]vidence is material only if there is a reasonable probability that, had the
evidence been disclosed to the defense, the result of the proceeding would have been different. A
‘reasonable probability’ is a probability sufficient to undermine confidence in the outcome.”254
Respondent argues that the forensic reports—showing that Zannie Neal could not be excluded
as the source of the bloody shoeprint—are not material because the evidence fits within the State’s
theory of the case.255 Specifically, Respondent argues that the evidence showed that two intruders

251

State Rec., Vol. XX of XXXIII, Order Denying Application for Post-Conviction Relief at pp. 1–2, Oct. 9,

252

Bagley, 473 U.S. at 676.

253

Brady, 405 U.S. at 154.

254

Bagley, 473 U.S. at 682.

255

Rec. Doc. 12 at 12–13.

2013.

37

entered the residence on the night of the murders—Petitioner and Zannie Neal. 256 Similarly,
Respondent asserts that the serology report—finding the “possible presence of blood” on Arthur
Darby’s shoe—is not exculpatory because the same report noted the possible presence of blood on
Petitioner’s shoe.257
The only evidence supporting the State’s theory that both Petitioner and Zannie Neal entered
the house was the testimony of Arthur Darby.258 Arthur Darby’s testimony was also the only evidence
presented to establish that Petitioner was the shooter. 259 The defense’s position was that Darby
murdered the victims and then falsely implicated Petitioner to avoid the death penalty.260
Claudette Hurst—the only eyewitness who testified at Petitioner’s trial—testified that she saw
one perpetrator who she described as tall, thin, and dressed in black clothing.261 As the Louisiana
Supreme Court recognized on direct appeal, the defense pointed to the following testimony to support
Petitioner’s claim that he remained in the car while Zannie Neal and/or Arthur Darby entered the
house and killed the victims: “(1) Claudette Hurst described the shooter as a tall, thin person dressed
in black clothing; (2) a deputy sheriff stated that when arrested [Petitioner] was wearing ‘a light brown
pair of khaki pants’; and (3) Darby admitted wearing a black sweater and blue jeans the night of the

256

Id.

257

Id. at 14–15.

258

Trial Transcript at 1398.

Neal, 796 So. 2d at 657–58 (“[T]he primary evidence that the defendant was the shooter is the trial testimony
of the defendant’s uncle, Arthur Darby.”)
259

260
Id. at 658 (“The defendant alleges that Darby murdered the victims and then falsely implicated the defendant
to avoid the death penalty; in support, the defendant notes that Darby admitted on cross-examination that he would “do
anything and say anything” to avoid the death penalty.”).
261

Trial Transcript at 1102, 1123–24.

38

murder, described himself as ‘rather thin,’ and acknowledged that [Petitioner] was not ‘skinny’ or
‘thin.’” 262 The Louisiana Supreme Court rejected Petitioner’s argument that the evidence was
insufficient to prove his identity as the perpetrator, reasoning that “the jury heard Hurst’s description
of the offender and the witnesses’ testimony regarding the defendant’s and Darby’s clothing and
physique, but, nevertheless, accepted Darby’s testimony implicating the defendant.”263
The Supreme Court’s decision in Smith v. Cain is instructive here.264 There, the defendant
was convicted of killing five people during an armed robbery based on the testimony of a single
witness, Larry Boatner.265 On post-conviction relief, the defendant argued that the State committed a
Brady violation by failing to disclose police files containing statements by Boatner indicating that he
could not provide a description of the perpetrator.266 The Supreme Court “observed that evidence
impeaching an eyewitness may not be material if the State’s other evidence is strong enough to sustain
confidence in the verdict.”267 However, because Boatner’s testimony was the only evidence linking
the defendant to the crime and because the undisclosed statements directly contradicted that
testimony, the Supreme Court found that the undisclosed statements were material under Brady.268
Similarly, evidence that would have impeached Darby’s credibility and called into question
his version of events was clearly material to the defense in this case. The State’s theory that both

262

Id.

263

Id.

264

132 S. Ct. 627 (2012).

265

Id. at 629.

266

Id. at 630.

267

Id.

268

Id.

39

Petitioner and Zannie Neal entered the house was supported only by the testimony of Arthur Darby.
By contrast, Claudette Hurst testified that she only saw one intruder—an individual matching the
physical description of Arthur Darby. Evidence that Zannie Neal left the bloody shoeprint found at
the scene would have been relevant to the defense’s theory that Petitioner remained in the car and did
not shoot the victims.269
Similarly, the importance of the serology report to the defense cannot be overstated. At trial,
Darby stated that he waited in the car while Petitioner and Zannie Neal went inside the house.270
Evidence regarding the possible presence of blood on Darby’s shoe would have reduced his credibility
and strengthened the defense’s argument that Darby was responsible for the shooting. The evidence
that Darby had blood on his shoe was favorable to the defense because it would have contradicted
Darby’s testimony at trial that he remained in the car the entire time. For these reasons, the Court
finds that this evidence was material to the defense. Therefore, assuming this evidence was not
disclosed to the defense before trial, the state trial court’s denial of relief was contrary to, or involved
an unreasonable application of, federal law.
However, this issue cannot be resolved without an evidentiary hearing. The state court’s
decision denying relief rested on the factual finding that the serology and forensic reports were
disclosed to the defense. As discussed above, the state court’s factual finding was objectively
unreasonable and not entitled to deference under the AEDPA. “A district court may refuse an
evidentiary hearing where there is not a factual dispute which, if resolved in the prisoner’s favor,

269

See Neal, 796 So. 2d at 658.

270

Trial Transcript at 1398.

40

would entitle him to relief.”271 Here, the factual dispute, if resolved in Petitioner’s favor, would entitle
him to relief. Therefore, a hearing on this issue is necessary.
b.

Arthur Darby’s Statement to Police

Next, Petitioner argues that a Brady violation occurred when the State withheld a recorded
statement Arthur Darby made to the police.272 The state trial court rejected this claim.273 The trial
court reasoned that “[t]he defendant has not demonstrated how disclosure was untimely or prejudicial
to his case. The record indicates that defense counsel had each of the statements to which the
defendant refers.” 274 Petitioner argues that this factual finding was unreasonable in light of the
evidence presented to the state court.275 In the initial response filed in this case, Respondent conceded
that “the court’s statement that ‘defense counsel had each of the statements to which the defendant
refers’ appears to be error.”276 However, in the statement of material facts submitted in opposition to
the instant motion, Respondent changes course and argues that “the record suggests at least portions
of Mr. Darby’s second statement were, in fact, disclosed.”277 Respondent argues that “Petitioner’s
trial counsel specifically referenced that second audio recorded statement given by Mr. Darby and,
using the contents of that statement, impeached Mr. Darby with a prior inconsistency from that

271

Coleman v. Vannoy, 963 F.3d 429, 435–36 (5th Cir. 2020) (internal citations omitted).

272

Rec. Doc. 4 at 29.

273

State Rec., Vol. XX of XXXIII, Order Denying Application for Post-Conviction Relief at p. 2, Oct. 9, 2013.

274

Id.

275

Rec. Doc. 166-1 at 20.

276

Rec. Doc. 12 at 18.

277

Rec. Doc. 269-1 at 7.

41

statement.”278
As discussed above, “Brady claims are properly considered under § 2254(d)(1) rather than
§ 2254(d)(2) because they ‘involve mixed questions of law and fact.’”279 In this case, the state trial
court found that Darby’s statement was disclosed to the defense before trial. Of course, to succeed on
a Brady claim, Petitioner must make the threshold showing that the State suppressed the evidence.280
Because the state trial court found that this evidence was not suppressed, this Court must determine
whether that factually finding was objectively unreasonable before reaching the legal issue of whether
the evidence was material.281
i.

Whether the factual finding that the evidence was disclosed was
objectively unreasonable

At trial, the State represented that it had a taped copy of a February 22, 1999 interview that
Arthur Darby gave to police.282 When the trial court asked the prosecutor if the State was willing to
give a copy of the tape to the defense, the prosecutor said “No, Your Honor,” and represented to the
trial court that the taped interview of Darby was “totally consistent” with an April 1, 1998 statement
the defense had and therefore, the defense was not entitled to it.283 The trial judge asked for a copy
of the statement to be put into the record for appellate review.284 The prosecutor promised that “if we

278

Id.

279

Reeder, 978 F.3d at 280 (quoting Floyd, 894 F.3d at 161).

280

Brady, 405 U.S. at 154; Megas, 281 F. App’x at 334.

281
See Megas, 281 F. App’x at 334 (finding that the Texas Court of Appeals’ holding that a letter was not
suppressed because it was available to the defense was not objectively unreasonable).
282

Feb. 26, 1999 Trial Transcript at p. 194.

283

Id. at 197.

284

Id.

42

can find the tape, we’ll provide it to the court.”285
Subsequently, during a bench conference, the prosecutor gave the trial judge a copy of the
taped statement for in camera inspection.286 The tape is not mentioned again in the trial transcript.
However, a minute entry of the state trial court stated that the court reviewed the tape in chambers
and ruled that there were two Brady statements on the tape.287 Nevertheless, the record does not
indicate that the taped statements were ever provided to defense counsel and there was no evidence
before the state court to support its factual finding that the taped statement was ever provided to
defense counsel. Based on the trial record and Respondent’s original concession that the state court’s
factual finding was erroneous, the Court finds the factual finding that the statement was disclosed to
the defense before trial to be objectively unreasonable in light of the evidence presented in the state
court proceeding.288
ii.

Whether the state court’s ruling was contrary to, or an unreasonable
application of, clearly established federal law

Petitioner asserts that the February 22, 1999 statement contained the following material
inconsistencies with Darby’s trial testimony: (1) in his statement, Darby asserts that he did not see
Petitioner with a gun when he got out of the car, in contradiction to Darby’s trial testimony that
Petitioner was carrying a rifle when he got out of the car; (2) discrepancies between the timeline
Darby gave at trial and the timeline provided during his statement; (3) in his statement, Darby asserts
that he knew Petitioner and Zannie Neal through “a buddy,” in contradiction to his trial testimony

285

Id. at 197–98.

286

Id. at 200–01.

287

State Rec., Vol. I of XXXIII at p. 14.

288

28 U.S.C. § 2254(d)(1); Megas, 281 F. App’x at 335.

43

that they were his nephews; (4) Darby’s statement indicated that Petitioner was a lesser participant
than Zannie Neal because Zannie Neal “did the talking” while Petitioner wanted to go get a beer; (5)
Darby’s statement indicated that he was familiar with the Bunche Village area where the crime
occurred, in contradiction to his trial testimony that Petitioner had to provide him with directions.289
In response, Respondent argues that this evidence is not material because “[r]egardless of any
difference in his statements, [P]etitioner is still at the scene and exiting the car outside the scene of
the shootings; he is still running to the car carrying a weapon with a ski mask covering his face; he is
still in that car in the attempt to escape and he is still shooting at the pursuing police with an AK
47.”290 According to Respondent, the “minor inconsistencies” between the statement and Darby’s
trial testimony “do not impeach the gist of Darby’s statement or his trial testimony that petitioner was
armed when he exited the vehicle.”291
The state trial court did not address whether these statements were material, because it found
that the statements were disclosed to the defense. However, as discussed above, Respondent originally
conceded that this factual finding was not supported by the record. Accordingly, the factual finding
is not entitled to deference.
The Supreme Court’s decision in Wearry v. Cain is instructive here. 292 There, the State
withheld impeachment evidence concerning two of the State’s witnesses, Sam Scott and Eric

289

Rec. Doc. 4 at 32–39.

290

Rec. Doc. 12 at 16.

291

Id. at 17.

292

136 S. Ct. 1002 (2016).

44

Brown.293 At trial, Scott was the only witness to testify that he saw Wearry commit the homicide in
question and Eric Brown testified that on the night of the murder, he saw Wearry and other individuals
with a man who looked like the victim. 294 Wearry argued that the State withheld the following
impeachment evidence: (1) police records containing information that an inmate in the same prison
as Scott reported hearing Scott say he would “make sure [Wearry] gets the needle cause he jacked
over me”; (2) police records indicating that Scott had tried to coerce another inmate to lie about
witnessing the murder; (3) evidence that Brown “had twice sought a deal to reduce his existing
sentence in exchange for testifying against Wearry”; and (4) medical records of the victim that could
have contradicted Scott’s testimony.295 On appeal, the Supreme Court concluded that “the newly
discovered evidence suffice[d] to undermine confidence in Wearry’s conviction.”296 The Supreme
Court reasoned that “Scott’s credibility . . . would have been further diminished had the jury learned
that [the victim] may have been physically incapable of performing the role Scott ascribed to him,
that Scott had coached another inmate to lie about the murder and thereby enhance his chances to get
out of jail, or that Scott may have implicated Wearry to settle a personal score.”297
As discussed in detail above, the testimony of Darby was the only evidence supporting the
State’s theory of the crime. Darby testified that Petitioner was holding a rifle when he exited the car
with Zannie Neal. According to Darby, when they returned, Petitioner made inculpatory statements

293

Id. at 1003.

294

Id.

295

Id. at 1004–05.

296

Id. at 1006.

297

Id. at 1006–07.

45

suggesting that he had been the shooter. The eyewitness testimony of Claudette Hurst did not match
the physical description of Petitioner and instead matched Darby. The prior inconsistent statements
made by Darby, particularly the statement indicating that Darby did not see a gun when Petitioner
exited the vehicle, would have been critical to impeach his testimony. When viewed cumulatively
with the forensic and serology reports discussed above, there may be a reasonable probability that,
had the evidence been disclosed to the defense, the result of the proceeding would have been
different.298
However, this issue cannot be resolved without an evidentiary hearing. The state court’s
decision denying relief rested on the factual finding that the recorded statement disclosed to the
defense. As discussed above, there may be a basis to find that the state court’s factual finding was
objectively unreasonable and not entitled to deference. “A district court may refuse an evidentiary
hearing where there is not a factual dispute which, if resolved in the prisoner’s favor, would entitle
him to relief.”299 Here, the factual dispute, if resolved in Petitioner’s favor, would entitle him to relief.
Therefore, a hearing on this issue is necessary.
c.

Evidence the State Court Found was not Disclosed to Defense Before Trial

The state trial court found that three pieces of evidence were not disclosed to the defense
before trial: (1) a January 1999 letter from Zannie Neal to Arthur Darby; (2) the police record of
Keinna Porter; and (3) supplemental police reports.300 Each of these items is described in turn.

298

Bagley, 473 U.S. at 682.

299

Coleman, 963 F.3d at 435–36 (internal citations omitted).

300

State Rec., Vol. XX of XXXIII, Order Denying Application for Post-Conviction Relief at p. 2, Oct. 9,

2013.

46

i.

The Letter from Zannie Neal to Arthur Darby

Zannie Neal sent a letter to Arthur Darby in January 1999, while both were incarcerated. In
the letter, Zannie Neal expressed that he would like to make a “fresh start” if they “both make it out
of here together”301 The letter also states that “once this is all over” Zannie and Darby could explain
to their family that they got into drug dealing because they wanted the “good life” and wanted to show
their family “what the good life is like.”302 On post-conviction review, the state trial court found
Petitioner’s claim that the letter “contain[ed] Brady material” to be “speculative in nature” and
without “factual basis.”303
Petitioner now argues that this letter is exculpatory and constitutes impeachment evidence.304
Petitioner asserts that the letter could have been used to show that Darby “could have easily chosen
Jarrell over Zannie to inculpate due to his close personal relationship with Zannie.”305 In response,
Respondent argues that the letter inculpates Petitioner because the letter suggests Zannie Neal
understood that Petitioner would not be getting out of jail.306 Respondent also asserts that the letter

Rec. Doc. 4-1 at 149 (“That’s why I was thinking to myself that man if we both make it out of here together.
I’m coming with you to Texas so I could have a brand new start. Because really my nigga you bout the only person I
know period that’s on the same level with me. Then you like a couple of level’s above me. Because ain’t nobody else
really feeling me.”).
301

Id. at 149–50 (“So say bra once this is all over me and you can go back out there and really put it down. You
know let our people’s know just what it was we was trying to do. Which really was just trying to make something strong
and positive happen so we can show our real folks what the good life is like. Because once we been exposed we want
that, if not for ourselves for them. Just like when you graduated from O.I.L. They thought we was trippin spending all
that money on a plate of food That was because at that time we really didn’t have our stuff together, but once we get it
together we can show them that it ain’t bout nothing. Because nigga you got skills to pay the bills. And say nigga you
always my inspiration so it’s a must that I represent with you.”).
302

303

Id.

304

Rec. Doc. 4 at 40.

305

Id.

306

Rec. Doc. 12 at 19.

47

shows that Zannie Neal had an unrealistic sense of reality because he expressed a belief that he may
“make it out.”307
The letter could have been used to show Zannie Neal had a close relationship with Arthur
Darby. This supports Petitioner’s theory that Arthur Darby lied to protect himself and Zannie Neal.
When viewed alone, this undisclosed evidence would not undermine confidence in the jury’s verdict.
However, the cumulative effect is addressed below.
ii.

Criminal History of Keinna Porter

At Petitioner’s trial, defense counsel indicated that he had not received a rap sheet for the
State’s witness Keinna Porter, and the prosecutor responded that “to [his] knowledge, this witness
has no arrests; has never even been arrested before.”308 However, on post-conviction relief, Petitioner
discovered records showing that Porter was arrested in Jefferson Parish and charged with possession
of cocaine in January 1999.309 Porter later pleaded guilty to possession of cocaine in violation of
Louisiana Revised Statute § 40:967(C), (F).310 The judge sentenced Porter to a term of one year
imprisonment, suspended the sentence, and placed her on probation.311 On post-conviction review,
the state trial court found that the evidence was not material because “[Porter] pled as charged and
did not receive a reduced sentence. There is nothing in the record to suggest that there was a deal with
Porter in exchange for her testimony or that she benefited from testifying at trial.”312

307

Id. at 19–20.

308

Feb. 25, 1999 Trial Transcript at p. 133.

309

State Rec., Vol. XI of XXXIII, Exhibit 17 to Supplemental Petition at pp. 318–20.

310

Id.

311

Id.

312

Id.

48

Petitioner argues that these records suggest that Porter may have received a plea deal in
exchange for her testimony. At the time of Porter’s conviction, Louisiana Revised Statute § 40:967(F)
provided for the imposition of mandatory minimum sentences if certain amounts of cocaine were
possessed. 313 Additionally, the statute provided that where the provisions of Subsection F are
applicable, “the adjudication of guilt or imposition of sentence shall not be suspended, deferred, or
withheld, nor shall such person be eligible for probation or parole prior to serving the minimum
sentences provided by Subsection F.” 314 The minutes from Porter’s case also reveal that the
prosecutor was Quentin Kelly, who also prosecuted Petitioner’s case.315 Under these circumstances,
Petitioner argues that “it is apparent that the State gave favorable treatment to Porter in her criminal
case in exchange for her testimony.”316
Petitioner contends that the withheld impeachment information is material.317 At Petitioner’s
trial, Porter testified that Franklin McQueen, who allegedly owed a drug debt to Zannie Neal, was
living at Claudette Hurst’s home but left “[a] couple of days before the incident happened.” 318
Petitioner argues that the undisclosed evidence could have been used to call Porter’s credibility into
doubt. 319 Additionally, Petitioner argues that the undisclosed evidence shows that Porter “had a

313

La. Rev. Stat. § 40:967(F) (1998).

314

Id. at § 40:967(G) (1998).

315

State Rec., Vol. XI of XXXIII, Exhibit 17 to Supplemental Petition at pp. 318–20.

316

Rec. Doc. 4 at 42.

317

Id.

318

Feb. 25, 1999 Trial Transcript at pp. 141–42.

319

Rec. Doc. 4 at 42.

49

possible personal interest in testifying to curry favor with the State.”320 In response, Respondent
contends that the prosecutor may not have been aware of Porter’s arrest, which occurred six weeks
before she was called as a witness in Petitioner’s trial. 321 Respondent notes that Porter was not
charged until April 20, 2000, over a year after Petitioner’s trial, and she pleaded guilty as charged.322
Keinna Porter’s trial testimony was very limited. The testimony supported the State’s theory
on motive for the crimes––Zannie Neal went to the house because Franklin McQueen owed him a
drug debt. Porter testified that Franklin McQueen was living in the home on S. Wilson Street but left
a few days before the shooting.323 Similar testimony regarding Franklin McQueen was also provided
by Claudette Hurst and Carl Duncan. 324 Therefore, Porter’s testimony was cumulative. Even
assuming Petitioner’s argument that Porter got a plea deal in exchange for her testimony is true, it
cannot be said that the result of the trial would have been different if the jury would have known that
information. Individually, this undisclosed evidence does not undermine confidence in the jury’s
verdict. However, the cumulative effect is addressed below.
iii.

Police Reports

Petitioner argues that the State failed to disclose the investigating police officers’ initial
reports before trial, as required by Louisiana law.325 On direct appeal, the Louisiana Supreme Court
found that any failure to disclose initial police reports was harmless error because Petitioner did not

320

Id.

321

Rec. Doc. 12 at 20.

322

Id. at 91, 115–16.

323

Feb. 25, 1999 Trial Transcript at pp. 141–42.

324

Feb. 25, 1999 Trial Transcript at pp. 141–42.

325

Rec. Doc. 4 at 42.

50

show how the defense was prejudiced.326 On post-conviction review, the state trial court found that
the initial police report was provided to the defense and noted that “[a]dditional reports which are
investigative or supplemental in nature are not required to be produced until the conviction becomes
final.”327
Defense counsel was provided with an initial report authored by Lieutenant Buras mid-trial
but Petitioner contends that the initial report was inconsistent with a supplemental report that was not
provided to the defense before trial.328 Petitioner contends that the supplemental report shows the
State’s bias in investigating this case as it “composed a report that fit with the State’s theory of the
crime rather than with the evidence.” 329 Petitioner asserts that the facts excluded from the
supplemental report could have facilitated defense counsel’s investigation of the case.330 In response,
Respondent asserts that any claim regarding the alleged failure to comply with Louisiana law is not
cognizable on federal habeas review. 331 Additionally, Respondent notes that the record shows
Petitioner was provided with the initial report—the only report he was entitled to under Louisiana
law.332
As the Fifth Circuit has recognized, “federal habeas courts sit to review state court

326

State Rec., Vol. XXI of XXXIII, State v. Neal, 00-KA-0674, Unpublished Appendix at p. 43 (La. 6/29/2001).

327

Id.

328

Rec. Doc. 4 at 43.

329

Id.

330

Id. at 44.

331

Rec. Doc. 12 at 21.

332

Id. at 22.

51

misapplications of federal law.” 333 “A federal court lacks authority to rule that a state court
incorrectly interpreted its own law.” 334 “Whether the state followed its own procedure is not the
concern of a federal habeas court.”335 Therefore, to the extent Petitioner argues that the prosecution
violated state law by failing to disclose the police reports, this claim is not cognizable on federal
habeas review.
Under federal law, Petitioner generally alleges that the supplemental report shows “that the
State was biased in its investigation of this case, and composed a report that fit with the State’s theory
of the crime rather than with the evidence.” 336 Petitioner does not explain how this undisclosed
evidence is material or how it would undermine confidence in the jury’s verdict.
d.

Cumulative Effects of the Evidence

For clarity due to the detailed facts surrounding each sub-issue listed above, each alleged piece
of Brady material was addressed individually. However, the effect of Brady violations must be viewed
cumulatively. “When there are a number of Brady violations, a court must analyze whether the
cumulative effect of all such evidence suppressed by the government raises a reasonable probability
that its disclosure would have produced a different result.”337
As the Supreme Court has made clear, “the materiality inquiry is not just a matter of
determining whether, after discounting the inculpatory evidence in light of the undisclosed evidence,

333

Charles v. Thaler, 629 F.3d 494, 500 (5th Cir. 2011).

334

Id. at 500–01.

335

Manning v. Warden, Louisiana State Penitentiary, 786 F.2d 710, 712 (5th Cir. 1986).

336

Rec. Doc. 4 at 43.

337

Sipe, 388 F.3d at 478.

52

the remaining evidence is sufficient to support the jury’s conclusions. 338 “Rather, the question is
whether ‘the favorable evidence could reasonably be taken to put the whole case in such a different
light as to undermine confidence in the verdict.’”339
Petitioner argues that “the net weight of the Brady material suppressed by the State is
staggering.”340 Petitioner asserts that “without a doubt . . . had the jury heard the entirety of the
exculpatory evidence the State withheld and continues to suppress, there is a reasonable probability
that the outcome of the proceedings would be different.”341
Respondent contends that Petitioner is not entitled to relief because no individual Brady claim
has merit. 342 According to Respondent, habeas relief should be denied because Petitioner cannot
show that any of the suppressed evidence is material.343 Respondent argues that “Darby would not
have been ‘severely impeached’ if the jury knew he had given a statement in which he said he did not
see petitioner with a gun when petitioner got out of the car.”344 Similarly, Respondent argues that the
possible presence of a minuscule drop of blood on Darby’s shoe cannot “be considered material on
this record.”345 Respondent cites Supreme Court caselaw recognizing that “evidence impeaching an
eyewitness may not be material if the State’s other evidence is strong enough to sustain confidence

338

Strickler, 527 U.S. at 290(citing Kyles, 514 U.S. at 434–35).

339

Id. (quoting Kyles, 514 U.S. at 435).

340

Rec. Doc. 4 at 248.

341

Id. at 249.

342

Rec. Doc. 12 at 121.

343

Id. at 23.

344

Id.

345

Id.

53

in the verdict.” 346 Respondent submits that the other evidence presented in Petitioner’s case is
sufficient to maintain confidence in this verdict.347
In support, Respondent cites Strickler v. Greene. 348 In Strickler, the Supreme Court
considered a Brady claim that involved exculpatory evidence that would have cast doubt on the
testimony of a key prosecution witness, Anne Stoltzfus.349 When the United States Court of Appeals
for the Fourth Circuit considered the case, it concluded that “without considering Stoltzfus’
testimony, the record contained ample, independent evidence of guilt, as well as evidence sufficient
to support the findings of vileness and future dangerousness that warranted the imposition of the death
penalty.”350 The Supreme Court rejected this approach.351 The Supreme Court reiterated that “the
materiality inquiry is not just a matter of determining whether, after discounting the inculpatory
evidence in light of the undisclosed evidence, the remaining evidence is sufficient to support the jury’s
conclusions.”352 Instead, “the question is whether ‘the favorable evidence could reasonably be taken
to put the whole case in such a different light as to undermine confidence in the verdict.’”353
Still, the Strickler Court concluded that habeas relief was not warranted because “[t]he record
provide[d] strong support for the conclusion that petitioner would have been convicted of capital

346

Id.

347

Id.

348

527 U.S. 263 (1999).

349

Id. at 266.

350

Id. at 290.

351

Id. (“T]he standard used by [the Fourth Circuit] was incorrect.”).

352

Id.

353

Id. (quoting Kyles, 514 U.S. at 435).

54

murder and sentenced to death, even if Stoltzfus had been severely impeached.”354 Specifically, there
was “considerable forensic and other physical evidence linking [the defendant] to the crime.” 355
Moreover, Stoltzfus’s testimony “did not relate to [the petitioner’s] eligibility for the death sentence
and was not relied upon by the prosecution at all during its closing argument at the penalty phase.”356
Therefore, the Supreme Court concluded that there was not “a reasonable probability that the jury
would have returned a different verdict if [Stoltzfus’s] testimony had been either severely impeached
or excluded entirely.”357
This case is clearly distinguishable from Strickler. To convict Petitioner of first-degree murder
under Louisiana law, the prosecution had to prove that Petitioner had the specific intent to kill the
victims or to inflict great bodily harm. 358 The prosecution also had to prove that at least one
aggravating circumstance was met.359 In this case, the prosecutors argued the following aggravating
circumstances: (1) Petitioner was engaged in the perpetration or attempted perpetration of an
aggravated burglary; (2) Petitioner was engaged in the attempted distribution, exchange, sale or
purchase of a controlled dangerous substance; and (3) Petitioner knowingly created a risk of death or
great bodily harm to more than one person. 360 The jurors found each of these aggravating

354

Id. at 294.

355

Id. at 293.

356

Id. at 295.

357

Id. at 296.

La. Rev. Stat. § 14:30. Louisiana law defines specific criminal intent at the “state of mind which exists
when the circumstances indicate that the offender actively desired the prescribed criminal consequences to follow his
act or failure to act.” La. Rev. Stat. § 14:10(1).
358

359

La. Rev. Stat. § 14:30.

360

Neal, 796 So. 2d at 657 (internal citations omitted).

55

circumstances present in this case.361
The State relied primarily on the testimony of Arthur Darby to prove each of these three
aggravating circumstances.362 To prove that Petitioner committed the murders while engaged in the
perpetration or attempted perpetration of an aggravated burglary, the State relied on Arthur Darby’s
testimony that Petitioner “went to the Hurst residence with the intent to collect an unpaid drug debt
and that he entered the house armed with an AK-47.”363 “Similarly, to prove that [Petitioner] killed
the victims during the course of a drug transaction, the [S]tate relied heavily on Darby’s testimony
that they went to the Hurst residence to collect an overdue drug debt from Claudette Hurst’s
stepfather.”364 Finally, to prove that Petitioner created a risk of death or serious bodily harm to more
than one person, the State relied on evidence showing that Petitioner “used a high powered assault
rifle to shoot indiscriminately through the bedroom door at a group of people.”365 The testimony of
Arthur Darby was the only evidence presented to show that Petitioner was the shooter.366
“[T]he impeached testimony of a witness whose account is strongly corroborated by additional
evidence supporting a guilty verdict . . . generally is not found to be material.”367 “Conversely, a
Brady violation is more likely to occur when the impeaching evidence would seriously undermine the

361

State Rec., Vol. XXI of XXXIII, State v. Neal, 00-KA-0674, Unpublished Appendix at p. 65 (La. 6/29/2001).

362

Id.; Neal, 796 So. 2d at 657–58.

363

State Rec., Vol. XXI of XXXIII, State v. Neal, 00-KA-0674, Unpublished Appendix at p. 65 (La. 6/29/2001).

364

Id. at 66.

365

Id.

366

Neal, 796 So. 2d at 658.

367

Rocha, 619 F.3d at 396–97 (internal citations and quotation marks omitted).

56

testimony of a key witness on an essential issue or there is no strong corroboration.” 368 Unlike in
Strickler, this record does not provide “strong support for the conclusion that petitioner would have
been convicted of capital murder and sentenced to death” if Darby had been “severely impeached.”369
In portions of its briefing, Respondent appears to concede that the allegedly suppressed
evidence could be material to Petitioner’s punishment. For example, Respondent points out that “any
merit to [the Brady] claim can only result in relief as to the degree of culpability, i.e., his death
sentence: petitioner cannot escape the resulting life sentence for second degree murder due to his
involvement as a principal for his involvement in these murders.” 370 Brady recognizes that
“suppression by the prosecution of evidence favorable to an accused [] violates due process where
the evidence is material either to guilt or to punishment.”371 In Brady, the petitioner and a companion,
Boblit, were both convicted of first degree murder and sentenced to death.372 Brady’s defense at trial
was that he was a participant in the crime but Boblit was the killer. 373 Following trial, Brady’s
attorney discovered a prior statement by Boblit wherein he admitted to being the killer. 374 The
Supreme Court held that although Boblit’s statement did not exculpate Brady of the murder under
Maryland law, it was material to the question of punishment.375

368

Id. at 397 (internal citations and quotation marks omitted).

369

Strickler, 527 U.S. at 294.

370

Rec. Doc. 12 at 10.

371

373 U.S. at 87.

372

Id. at 84.

373

Id.

374

Id.

375

Id. at 88.

57

To succeed on his Brady claim, Petitioner must show that “there is a reasonable probability
that, had the evidence been disclosed to the defense, the result of the proceeding would have been
different.”376 “A reasonable probability does not mean that the defendant would more likely than not
have received a different verdict with the evidence, only that the likelihood of a different result is
great enough to undermine [] confidence in the outcome of the trial.”377 When viewed cumulatively,
there is a reasonable probability that the result of the proceeding would have been different if Arthur
Darby’s testimony were impeached with the forensic reports, the serology report, the prior
inconsistent statement, and the letter from Zannie Neal. However, as discussed above, there is a
factual dispute over whether certain items were disclosed to the defense before trial. Therefore,
summary judgment is not appropriate on this issue. Instead, this factual issue must be resolved after
an evidentiary hearing.378
B.

Ineffective Assistance of Counsel
In the alternative, Petitioner contends that he is entitled to habeas relief because even if the

reports were provided, defense counsel would have been ineffective if he had the reports and failed
to use them at trial.379 Petitioner argues that his trial counsel had a duty to consult with independent

376

Bagley, 473 U.S. at 682.

377

Smith, 565 U.S. at 75 (quoting Kyles, 514 U.S. at 434).

The Supreme Court’s holding in Cullen v. Pinholster “prohibits a federal court from using evidence that is
introduced for the first time at a federal-court evidentiary hearing as the basis for concluding that a state court’s
adjudication is not entitled to deference under § 2254(d).” See Blue v. Thaler, 665 F.3d 647, 656 (5th Cir. 2011) (citing
Cullen v. Pinholster, 563 U.S. 170 (2011)). However, if the state court’s decision was based upon an unreasonable
determination of the facts, the Court is not constrained by the record before the state court and may consider evidence
presented for the first time in federal court. Cullen, 563 at 185–86. See also Hurles, 752 F.3d at 778. For the reasons
discussed above, the Court finds that the state court’s factual findings that the forensic reports, the serology report, and
the prior statements of Arthur Darby to be objectively unreasonable in light of the evidence presented to the state court.
378

379

Rec. Doc. 166-1 at 25.

58

forensic experts, both to potentially present in the defense’s case and to properly cross-examine the
State’s experts. 380 Petitioner asserts that this Court need not resolve the question of whether the
prosecution disclosed the reports because Brady’s “materiality” standard “is identical to” the
prejudice standard for ineffective assistance of counsel claims.381 According to Petitioner, “[w]hether
the reports were disclosed or withheld, the outcome is the same: Mr. Neal’s conviction and death
sentence are unworthy of confidence.”382 Respondent did not respond to this argument in opposition
to the instant motion for summary judgment.
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.383
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.384 To satisfy the deficient performance prong, a
petitioner must overcome a strong presumption that the counsel’s conduct falls within a wide range
of reasonable representation.385 A petitioner must show that the conduct was so egregious that it
failed to meet the constitutional minimum guaranteed by the Sixth Amendment.386 Courts addressing
this prong of the test for ineffective counsel must consider the reasonableness of counsel’s actions in

380

Id.

381

Id. at 26 (quoting Johnson, 68 F.3d at 109–10).

382

Id.

383

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

384

Id. at 697.

385

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

Cir. 1985).
386

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

59

light of all the circumstances.387 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.”388 A reasonable probability is “a probability sufficient to
undermine confidence in the outcome.”389
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.”390 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.”391 Thus, this standard is considered “doubly deferential” on habeas corpus review.392
Petitioner raises the ineffective assistance of counsel claim as an alternative theory for relief.
Petitioner maintains his argument that the serology and forensic reports were not disclosed to the
defense before trial. However, assuming that the evidence was disclosed, Petitioner argues that his
counsel was ineffective for failing to use the evidence. Petitioner does not cite, and the Court has been
unable to locate, any authority that would allow the Court to grant habeas relief in the equivocal
manner argued for by Petitioner. The purpose of an evidentiary hearing is to develop the record so
that the Court can make a factual determination of what actually happened. As the Fifth Circuit has

387

See Strickland, 466 U.S. at 689.

388

Id. at 694.

389

Id.

390

Knowles v. Mirzayance, 556 U.S. 111, 112 (2009) (quoting Schriro v. Landrigan, 550 U.S. 465, 478 (2007)).

391

Id.

392

Id.

60

recognized, “[a] district court may refuse an evidentiary hearing where there is not a factual dispute
which, if resolved in the prisoner’s favor, would entitle him to relief.”393 An evidentiary hearing is
needed to resolve the factual dispute in this case.
V. Conclusion
For the reasons discussed above, the Court denies the motion for partial summary judgment.
The state court made a factual finding that the serology report, the forensic report, and the statement
of Arthur Darby were disclosed to the defense. The Supreme Court’s holding in Cullen v. Pinholster
“prohibits a federal court from using evidence that is introduced for the first time at a federal-court
evidentiary hearing as the basis for concluding that a state court’s adjudication is not entitled to
deference under § 2254(d).”394 However, if the state court’s decision was based upon an unreasonable
determination of the facts, the Court is not constrained by the record before the state court and may
consider evidence presented for the first time in federal court.395 For the reasons set forth above, the
Court finds the state court’s factual findings that the forensic reports, the serology report, and the
prior statements of Arthur Darby were disclosed to the defense to be objectively unreasonable in light
of the evidence presented to the state court. Therefore, an evidentiary hearing is needed to determine
whether the forensic reports, the serology report, and the statement of Arthur Darby were disclosed
to the defense before trial. Accordingly,

393

Coleman, 963 F.3d at 435–36.

394

Blue, 665 F.3d at 656 (citing Cullen, 563 U.S. at 170).

395

See Cullen, 563 U.S. at 185–86; see also Hurles, 752 F.3d at 778.

61

IT IS HEREBY ORDERED that Petitioner Jarrell Neal’s “Motion for Partial Summary
Judgment”396 is DENIED.
IT IS FURTHER ORDERED that an evidentiary hearing will be held on the issue of whether
the forensic reports, the serology report, and the statement of Arthur Darby were disclosed to the
defense before trial.

30th
NEW ORLEANS, LOUISIANA, this ____ day of March, 2021.

_____________________________________
NANNETTE JOLIVETTE BROWN
CHIEF JUDGE
UNITED STATES DISTRICT COURT

396

Rec. Doc. 166.

62