Holmes v. Tanner et al

Filing 16

ORDER AND REASONS ADOPTING REPORT AND RECOMMENDATIONS 14 . Signed by Judge Nannette Jolivette Brown on 8/11/2017.(cms)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
CHARLIE HOLMES

CIVIL ACTION

VERSUS

NO. 16-2915

ROBERT C. TANNER, WARDEN

SECTION: “G”(2)

ORDER AND REASONS
Before the Court are Petitioner Charlie Holmes’s (“Petitioner”) objections1 to the Report
and Recommendation of the United States Magistrate Judge assigned to the case.2 Petitioner, a
state prisoner incarcerated in the Elayn Hunt Correctional Center in St. Gabriel, Louisiana, filed a
petition pursuant to 28 U.S.C. § 2254.3 The Magistrate Judge recommended that the Court dismiss
the petition on the merits.4 Petitioner objects to the recommendation.5 After reviewing the petition,
the State’s response, the Magistrate Judge’s Report and Recommendation, Petitioner’s objections,
the record, and the applicable law, the Court will overrule Petitioner’s objections, adopt the
Magistrate Judge’s recommendation and dismiss this action with prejudice.

1

Rec. Doc. 15.

2

Rec. Doc. 14.

3

Rec. Doc. 3.

4

Rec. Doc. 14.

5

Rec. Doc. 15.

1

I. Background
A.

Factual Background
On December 13, 2007, Petitioner was charged by Bill of Information in Orleans Parish

Criminal District Court with possession of cocaine in the amount of 28 to 200 grams.6 On April
26, 2011, a jury found Petitioner guilty as charged.7 On June 23, 2011, the state trial court
sentenced Petitioner to twenty years imprisonment at hard labor.8 The same day, the state trial
court adjudicated Petitioner a multiple offender, vacated the original sentence, and re-sentenced
Petitioner to the same term of twenty years imprisonment at hard labor.9
On March 29, 2012, Petitioner submitted his first state court application for post-conviction
relief, requesting an out of time appeal.10 After Petitioner obtained mandamus relief from the
Louisiana Fourth Circuit Court of Appeals,11 the trial court denied the post-conviction application
without stated reasons on September 17, 2012.12 On review of that ruling, the Louisiana Fourth
Circuit granted Petitioner’s writ application in part on October 22, 2012, and remanded the matter
to the trial court to grant the out of time appeal.13 On August 28, 2013, after Petitioner was granted

6

State Rec., Vol. I of III, Bill of Information, Dec. 13, 2007.

7

State Rec., Vol II of III, Jury Verdict, Apr. 26, 2011.

8

State Rec., Vol. II of III, Sentencing Transcript, Jun. 23, 2011.

9

Id.

10

State Rec., Vol. II of III, Application for Post-conviction Relief, Mar. 29, 2012.

11

State Rec., Vol. II of III, Louisiana 4th Circuit Order, 12-K-1241, Sept. 12, 2012.

12

State Rec., Vol. I of III, Minutes Entry, Sept. 17, 2012.

13

State Rec., Vol. II of III, Louisiana 4th Circuit Order, 12-K-1475, Oct. 22, 2012.

2

an out of time appeal, the Louisiana Fourth Circuit affirmed Petitioner’s conviction and sentence.14
Petitioner did not seek review of this ruling before the Louisiana Supreme Court.
Petitioner submitted an application for post-conviction relief to the state trial court on June
24, 2014.15 On September 28, 2014, Petitioner sought mandamus relief before the Louisiana Fourth
Circuit.16 The Louisiana Fourth Circuit denied the application on November 19, 2014, because the
writ was not filed with the state trial court.17 On January 16, 2015, the trial court denied Petitioner’s
application for post-conviction relief, because he failed to provide supporting evidence.18
On December 17, 2014, prior to receiving the denial of his application, Petitioner filed
another writ of mandamus application with the Louisiana Fourth Circuit seeking to compel the
state trial court to rule on his post-conviction application.19 On February 5, 2015, the Louisiana
Fourth Circuit granted the writ application for the limited purpose of transferring the postconviction application to state trial court for consideration if that court had not already done so.20
On April 24, 2015, the state trial court then entered an order stating that it had already ruled on
Petitioner’s post-conviction application.21

14

State Rec., Vol II of III, Louisiana Fourth Circuit Opinion, Aug. 28, 2013 (finding no errors at trial, but
noting an error in sentencing that would self-correct as a matter of law).
15

State Rec., Vol III of III, Application for Post-Conviction Relief, dated June 24, 2014.

16

State Rec., Vol III of III, Writ Application, Sept. 28, 2014.

17

State Rec., Vol III of III, 4th Cir. Order, Nov. 19, 2014.

18

State Rec., Vol I of III, Minutes Entry, Jan. 16, 2015.

19

State Rec., Vol III of III, 4th Cir. Writ Application, Jan 29, 2015.

20

State Rec., Vol III of III, 4th Cir. Order, Feb. 5, 2015.

21

State Rec., Vol I of III, Minutes Entry, Apr. 24, 2015.

3

On February 2, 2015, Petitioner submitted a writ application to the Louisiana Fourth Circuit
requesting review of the state trial court’s January 16, 2015 ruling denying post-conviction relief.22
On March 26, 2015, the Louisiana Fourth Circuit denied the writ application.23 On January 25,
2016, the Louisiana Supreme Court also denied Petitioner’s related writ application.24
On May 2, 2016, Petitioner filed the instant federal habeas corpus petition in this Court.25
In the application, Petitioner asserts the following grounds for relief: (1) his Fifth Amendment
rights were violated when the prosecutor made indirect reference to Petitioner’s failure to testify
at trial; (2) his appellate counsel was ineffective for failing to present a viable claim to the appellate
court that the prosecutor prejudiced the case with impermissible argument; and (3) his trial counsel
was ineffective for failing to call witnesses and present a defense.26 On June 10, 2016, the State
filed a response to Petitioner’s habeas corpus application.27 The State argued that the petition was
not timely filed.28 Alternatively, the State argued that Petitioner’s Fifth Amendment claim is not
exhausted and is procedurally barred from federal review because it differs from the argument
presented to the state courts, or that Petitioner’s claims lack merit.29

22

State Rec., Vol III of III, 4th Cir. Writ Application, Mar. 3, 2015.

23

State Rec., Vol III of III, 4th Cir. Order, Mar. 26, 2015.

24

See State ex rel. Holmes v. State, 184 So.3d 1 (La. 1/25/16).

25

Rec. Doc. 3.

26

Id.

27

Rec. Doc. 7.

28

Id. at 6–10.

29

Id. at 10–23.

4

B.

Report and Recommendation Findings
The Magistrate Judge recommends that the petition be dismissed with prejudice.30 As an

initial matter, the Magistrate Judge rejected the State’s arguments that Petitioner’s application was
not timely filed.31 Furthermore, the Magistrate Judge determined that it was unnecessary to resolve
the State’s argument that Petitioner’s Fifth Amendment claim was unexhausted because the claim
could be disposed of on the merits.32 Accordingly, the Magistrate Judge proceeded to consider the
merits of Petitioner’s claims.33
First, the Magistrate Judge found Petitioner’s claim, that his Fifth Amendment rights were
violated when the prosecutor made indirect reference to Petitioner’s failure to testify, unavailing.34
The Magistrate Judge noted that the prosecutor made the following statement: “Also if you
remember in opening statements, the defense counsel said that the defendant was being harassed
by the police. If you are going to be harassed by the police—well first, he didn’t show any of
that.”35 Petitioner argued that this comment violated his Fifth Amendment rights because it
indirectly referenced his failure to testify at trial, and that the state trial court erred when it did not
declare a mistrial on the issue.36 The Magistrate Judge determined that the question of whether the
state trial court erred in its application of state law is not a cognizable issue for federal habeas

30

Rec. Doc. 14.

31

Id. at 10–18.

32

Id. at 19–20.

33

Id. at 20–42.

34

Id. at 23–28.

35

Id. at 23 (citing State Rec., Vol. II of III, Trial Transcript at 32, Apr. 26, 2011).

36

Id.

5

review.37 As for Petitioner’s argument that the prosecutor’s comment violated Petitioner’s right
against self-incrimination under the Fifth Amendment, the Magistrate Judge noted that the
comment must be considered in light of the context in which it was made.38 The Magistrate Judge
determined that a plain reading of the prosecutor’s comment in context indicated that the comment
was a general reference to the lack of evidence provided to support defense counsel’s allegation
of police harassment, not that the prosecutor intended to comment on Petitioner’s decision not to
testify at trial.39 Moreover, the Magistrate Judge determined that nothing in the record indicated
that the jury necessarily took the prosecutor’s comment as a reference to Petitioner’s failure to
testify.40 Therefore, the Magistrate Judge found that the prosecutor’s comment did not violate
Petitioner’s Fifth Amendment rights.41
Next, the Magistrate Judge rejected Petitioner’s claim that his appellate counsel was
ineffective because she failed to argue that the prosecutor made an improper reference to
Petitioner’s failure to testify.42 The Magistrate Judge noted that appellate counsel is not required
to assert every non-frivolous grounds for appeal available,43 but rather is entitled to select among
them in the exercise of professional judgement in order to maximize the likelihood of success on

37

Id. at 24 (citing Swarthout v. Cooke, 562 U.S. 216, 219 (2011); Estelle v. McGuire, 502 U.S. 62, 67–68
(1991); Wilkerson v. Whitley, 16 F.3d 64, 67 (5th Cir. 1994)).
38

Id. (citing United States v. Delgado, 672 F.3d 320, 335 (5th Cir. 2012); Hernandez v. Thaler, 440 F. App’x
409, 416 (5th Cir. 2011)).
39

Id. at 27.

40

Id.

41

Id.

42

Id. at 31.

43

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

6

appeal.44 Because Petitioner had not established that a Fifth Amendment violation occurred, the
Magistrate Judge determined that Petitioner’s appellate counsel did not perform deficiently in
failing to raise the issue on appeal.45 Therefore, the Magistrate Judge found that the state courts’
denial of relief on this issue was not contrary to or an unreasonable application of Supreme Court
law.46
Finally, the Magistrate Judge rejected Plaintiff’s claim that his trial counsel was ineffective
for failing to call known witnesses, present a defense, or allow Petitioner to testify at trial.47 The
Magistrate Judge noted that to prevail on an uncalled witnesses claim, a petitioner must name the
witness, show that the witness was able to testify and would have done so, set out the content of
the witnesses proposed testimony, and show that the testimony would have been favorable to a
specific defense.48 The Magistrate Judge noted that while Petitioner named the witnesses and made
a claim as to what their testimony would be, no evidence in the record supported his assertion as
to the content of their testimony, their availability to testify, or that their testimony would
materially differ from the testimony of the police officers in the case.49 As a result, the Magistrate
Judge found that Petitioner failed to establish that counsel’s failure to call witnesses was deficient
or otherwise prejudicial.50 Furthermore, the Magistrate Judge found that Petitioner’s claim that he
was prevented from testifying at trial was conclusory, unsupported by evidence, and failed to

44

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

45

Id. at 34.

46

Id.

47

Id. at 34–41.

48

Id. at 35 (citing Day v. Quarterman, 566 F.3d 527, 538 (5th Cir. 2009)).

49

Id. at 35–36.

50

Id. at 37.

7

demonstrate that counsel actually prevented Petitioner from testifying, and that therefore, denial
of relief by the state courts on this issue was not contrary to or an unreasonable application of
Supreme Court law.51
II. Objections
A.

Petitioner’s Objections
Petitioner raises three objections to the Magistrate Judge’s Report and Recommendation.52

First, Petitioner asserts that the Magistrate Judge failed to recognize the violation of Petitioner’s
Fifth Amendment rights because the Magistrate Judge employed an overly narrow interpretation
of the Supreme Court’s decision in Griffin v. California and failed to appreciate the true manifest
intent and character of the prosecutor’s comment.53 Second, Petitioner argues that his appellate
counsel should have raised the Fifth Amendment issue on appeal, because the prosecutor’s
comment was a violation of his Fifth Amendment rights.54 Third, Petitioner contends that the
Magistrate Judge failed to appreciate that the gravity of trial counsel’s failure to call witnesses or
present a defense was severe enough as to violate Petitioner’s constitutional rights.55
B.

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

receiving electronic notice of the filing.

51

Id. at 37, 41.

52

Rec. Doc. 15.

53

Id. at 2–4.

54

Id. at 4–5.

55

Id. at 5.

8

III. Standard of Review
A.

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

provide a Report and Recommendation. The District Judge “may accept, reject, or modify the
recommended disposition” of a Magistrate Judge on a dispositive matter.56 The District Judge must
“determine de novo any part of the [Report and Recommendation] that has been properly objected
to.”57 The District Court’s review is limited to plain error for parts of the report which are not
properly objected to.58
B.

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

(“AEDPA”), the standard of review used to evaluate issues presented in habeas corpus petitions
was revised “to ensure that state-court convictions are given effect to the extent possible under
law.”59 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.”60 A state court’s determinations on mixed questions of law and fact or pure
issues of law, on the other hand, are to be upheld unless they are “contrary to, or involve[ ] an

56

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

57

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

See Douglass v. United Servs. Auto. Ass’n, 79 F.3d 1415, 1428–29 (5th Cir. 1996) (en banc), superseded
by statute on other grounds, 28 U.S.C. § 636(b)(1) (extending time to file objections from ten to fourteen days).
58

59

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

60

28 U.S.C. § 2254(d)(2).

9

unreasonable application of, clearly established Federal law, as determined by the Supreme Court
of the United States.”61
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.62
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.’”63 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.”64
However, the AEDPA’s deferential standards of review apply only to claims adjudicated
on the merits by the state courts.65 Instead, claims that were not adjudicated on the merits by the
state courts are reviewed “de novo without applying AEDPA-mandated deference.”66

61

28 U.S.C. § 2254(d)(1).

62

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

63

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

64

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

65

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

66

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

10

IV. Law and Analysis
A.

Whether the Prosecutor’s Comment Violated Petitioner’s Fifth Amendment Rights
The Magistrate Judge found Petitioner’s claim, that his Fifth Amendment rights were

violated when the prosecutor made indirect reference to Petitioner’s failure to testify, unavailing.67
Petitioner objects to this determination arguing that the Magistrate Judge failed to recognize the
violation of Petitioner’s Fifth Amendment rights, because the Magistrate Judge employed an
overly narrow interpretation of the Supreme Court’s decision in Griffin v. California and failed to
appreciate the true manifest intent and character of the prosecutor’s comment.68 Accordingly, the
Court reviews this issue de novo.69
In Griffin v. California, the Supreme Court held that it is unconstitutional for a prosecutor
to comment on a defendant’s exercise of his Fifth Amendment rights.70 There, the prosecutor made
the following reference to the defendant’s decision not to testify at trial: “[I]f anybody would know
[the circumstances surrounding the murder], this defendant would know. [The victim] is dead, she
can’t tell you her side of the story. The defendant won’t.”71 The Supreme Court determined that
this comment violated the defendant’s constitutional rights because “the Fifth Amendment . . .

67

Rec. Doc. 14 at 23–28.

68

Rec. Doc. 15 at 2–4. Petitioner does not object to the Magistrate Judge’s determination that the question
of whether the state trial court erred in its application of state law in failing to grant a mistrial is not cognizable on
federal habeas review. Finding no plain error, the Court adopts this recommendation. See Swarthout v. Cooke, 562
U.S. 216, 219 (2011).
69

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

70

380 U.S. 609, 615 (1965).

71

Id. at 611.

11

forbids either comment by the prosecution on the accused’s silence or instructions by the court
that such silence is evidence of guilt.”72
The Fifth Circuit has found that “the test for determining whether the prosecutor’s remarks
were constitutionally impermissible is: (1) whether the prosecutor’s manifest intent was to
comment on the defendant's silence or (2) whether the character of the remark was such that the
jury would naturally and necessarily construe it as a comment on the defendant’s silence.”73
Furthermore, the Fifth Circuit has recognized that “[t]here is no manifest intent to comment on a
defendant’s failure to testify if there is another ‘equally plausible’ explanation for a prosecutor’s
remarks.”74 The Supreme Court has also cautioned that “a court should not lightly infer that a
prosecutor intends an ambiguous remark to have its most damaging meaning or that a jury, sitting
through lengthy exhortation, will draw that meaning from the plethora of less damaging
interpretations.”75
In the instant case, the prosecutor made the following remark: “Also if you remember in
opening statements, the defense counsel said that the defendant was being harassed by the police.
If you are going to be harassed by the police—well first, he didn’t show any of that.”76 A plain
reading of the prosecutor’s comment indicates that the comment was a general reference to the
lack of evidence to support the claim made by Petitioner’s counsel that Petitioner was being

72

Id. at 615.

73

Rhoades v. Davis, 852 F.3d 422, 432–433 (5th Cir. 2017) (quoting United States v. Bohuchot, 625 F.3d
892, 901 (5th Cir. 2010); United States v. Grosz, 76 F.3d 1318, 1326 (5th Cir. 1996)).
74
Lee v. Michael, 476 F. App’x 29, 31 (5th Cir. 2012) (citing United States v. Collins, 972 F.2d 1385, 1406
(5th Cir. 1992)).
75

Donnelly v. DeChristoforo, 416 U.S. 637, 647 (1974).

76

State Rec., Vol. II of III, Trial Transcript at 32, Apr. 26, 2011.

12

harassed by the police. The prosecutor’s comment made no direct reference to Petitioner’s decision
not to testify at trial. As the Fifth Circuit has held, where there is an equally plausible explanation
for the prosecutor’s remarks, there is no manifest intent to comment on the defendant’s failure to
testify.77
Moreover, the record does not establish that the jury necessarily took the prosecutor’s
remarks as a reference to Petitioner’s decision not to testify. As the Fifth Circuit has recognized,
the question is not whether a jury might possibly view the remark as commenting on the
defendant’s silence, but rather whether they would necessarily view it as such.78 Reviewing the
record, it is not clear, given the context of the prosecutor’s remark, that the jury would necessarily
construe the comment as one on Petitioner’s decision not to testify at trial. The jury could have
viewed the comment as a remark on defense counsel’s failure to demonstrate a pattern of police
harassment. Accordingly, on de novo review, the Court finds that Petitioner has not established
that the prosecutor’s comment violated his Fifth Amendment rights.
B.

Ineffective Assistance of Counsel Claims
The Magistrate Judge found that Petitioner was not entitled to relief on his claims that his

trial and appellate counsel were ineffective.79 Petitioner objects, arguing that his appellate counsel
should have raised the Fifth Amendment issue on appeal, because the prosecutor’s comment was
a violation of his Fifth Amendment rights.80 Petitioner also contends that his trial counsel’s failure

77

Lee, 476 F.App’x at 31.

78

Grosz, 76 F.3d at 1326.

79

Rec. Doc. 14 at 28–41.

80

Rec. Doc. 15 at 4–5.

13

to call witnesses or present a defense was severe enough as to violate Petitioner’s constitutional
rights.81 Therefore, the Court reviews these issues de novo.82
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.83 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.84 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.85 Petitioner must show that the conduct was
so egregious that it failed to meet the constitutional minimum guaranteed by the Sixth
Amendment.86 Courts addressing this prong of the test for ineffective counsel must consider the
reasonableness of counsel’s actions in light of all the circumstances.87 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.”88 A
reasonable probability is “a probability sufficient to undermine confidence in the outcome.”89

81

Id. at 5. Petitioner does not object to the Magistrate Judge’s finding that trial counsel was not ineffective
for denying Petitioner a right to testify on his own behalf. Finding no plain error, the Court adopts this
recommendation.
82

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

83

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

84

Id. at 697.

85

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

Cir. 1985).
86

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

87

See Strickland, 466 U.S. at 689.

88

Id. at 694.

89

Id.

14

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.”90 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.”91 Thus, this standard is considered “doubly deferential” on habeas corpus
review.92
1.

Appellate Counsel

To prevail on a claim that appellate counsel was ineffective, a petitioner must show that
appellate counsel unreasonably failed to discover and assert a non-frivolous issue and establish a
reasonable probability that he would have prevailed on this issue but for his counsel’s deficient
representation.93 However, appellate counsel are not required to assert every non-frivolous issue
to be found effective.94 Rather, appellate counsel is entitled to legitimately select among nonfrivolous claims based on his or her professional judgement as a means by which to increase the
client’s likelihood of success.95 Furthermore, appellate counsel even has the discretion to exclude
non-frivolous issues if they reasonably determine that the issue was unlikely to prevail.96

90

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

91

Id.

92

Id.

93

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

94

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

95

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

96

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

(2007)).

15

Petitioner’s appellate counsel filed an Anders brief asserting that there were no meritorious
arguments to make on appeal.97 In the Anders brief, appellate counsel mentioned trial counsel’s
objection to the prosecutor’s comment during closing arguments; recognized that under Louisiana
Code of Criminal Procedure article 770(3) admonishments and mistrials are only required when
requested by trial counsel; noted trial counsel’s failure to request an admonishment or mistrial;
and cited state court precedent showing that a mistrial would not have been granted even if
requested.98
Petitioner has not established that his appellate counsel was ineffective. Counsel did not
fail to discover and assert the issue regarding the prosecutor’s comment. Instead, appellate counsel
reviewed the record and discerned that the issue was not meritorious. Petitioner has not
demonstrated that his appellate counsel’s decision not to raise this issue on appeal was objectively
unreasonable or that but for her failure to raise the issue the result of the proceeding would have
been different. Therefore, the state court’s denial of relief on Petitioner’s ineffective assistance of
appellate counsel claim was not contrary to or an unreasonable application of Supreme Court law.
2.

Trial Counsel

Ineffective assistance of counsel claims based on uncalled witnesses are disfavored on
habeas review because the presentation of testimonial evidence constitutes trial strategy, and
allegations as to the content of witnesses’ testimony is largely speculative.99 Conclusory assertions
are insufficient to establish an ineffective assistance of counsel claim.100 The Fifth Circuit has held

97

State Rec., Vol. II of III, Anders/Jyles Brief with Attached Motion to Withdraw, Apr. 15, 2013.

98

Id.

99

Bray v. Quarterman, 265 F.App’x 296, 298 (5th Cir. 2008) (citing US v. Cockrell, 720 F.2d 1423 (5th Cir.

1983)).
100

Green, 160 F.3d at 1042.

16

that to prevail on an ineffective assistance of counsel claim for uncalled witnesses, a petitioner
must name the witnesses, prove that the witnesses would have been able to testify if called,
describe the content of the witnesses’ testimony, and demonstrate that the witnesses’ testimony
would have been favorable to a specific defense.101 This showing is required for both “uncalled
lay and expert witnesses alike.”102
In Day v. Quarterman, the petitioner presented an affidavit from an uncalled expert witness
that rebutted much of the medical expert testimony presented at trial.103 However, the affidavit did
not state that the uncalled witness “was available to testify at trial, that he would have done so, or
that he would have testified in accord with the opinions and conclusions he states in his
affidavit.”104 Therefore, the Fifth Circuit concluded that the petitioner had not shown that he was
prejudiced by his counsel’s failure to call the expert at trial.105 Furthermore, in Hooks v. Thaler,
the petitioner claimed that his trial counsel was ineffective for failing to call an expert witness.106
However, the petitioner did not present any evidence to support his assertion that the witness was
able or willing to testify at trial.107 The Fifth Circuit held that in the absence of such evidence, the
petitioner could not establish prejudice under Strickland.108

101

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

102

Id.

103

Id.

104

Id.

105

Id. at 538–35.

106

394 F. App’x 79, 83 (5th Cir. 2010).

107

Id.

108

Id.

17

Here, Petitioner claims that Ralph Lomax and Charlie Brown would have testified that
there was no police chase before his arrest, that the police officers found nothing on him when he
was searched, and that the officers discovered the bag of drugs in question several steps away from
Petitioner.109 Petitioner also claims that his mother and aunt should have been called to testify
about how they were able to locate him at the time of his arrest and that there was no police chase
prior to his arrest.110 Petitioner’s claims are unsupported as he presents no affidavits or other
evidence demonstrating that these witnesses were available to testify, that they would have
testified if called, or the content of their testimony if called. Petitioner merely makes the conclusory
statement that their hypothetical testimony rendered it reasonably probable that the outcome of the
trial would have been different. Therefore, Petitioner’s claim that his trial counsel was deficient
for failing to call witnesses is conclusory, and fails to establish that these witnesses were actually
available and willing to testify at his trial. Accordingly, the state court’s denial of relief on
Petitioner’s ineffective assistance of trial counsel claim was not contrary to or an unreasonable
application of Supreme Court law.
V. Conclusion
For the reasons stated above, the Court finds Petitioner has not established that the
prosecutor’s comment violated his Fifth Amendment rights. Moreover, Petitioner has not shown
that the state court’s denial of relief on his ineffective assistance of counsel claims was contrary to
or an unreasonable application of federal law. Accordingly,
IT IS HEREBY ORDERED that Petitioner’s objections are OVERRULED;

109

Rec. Doc. 3 at 10–11.

110

Id. at 11–12.

18

IT IS FURTHER ORDERED that the Court ADOPTS the Magistrate Judge’s
recommendation and Petitioner Charlie Holmes’s petition for issuance for a writ of habeas corpus
pursuant to 28 U.S.C. § 2254 is DENIED and DISMISSED WITH PREJUDICE.
NEW ORLEANS, LOUISIANA, this 11th day of August, 2017.
____

__________________________________
NANNETTE JOLIVETTE BROWN
UNITED STATES DISTRICT JUDGE

19