Arnaud v. Vannoy et al

Filing 18

ORDER ADOPTING REPORT AND RECOMMENDATIONS 16 . IT IS HEREBY ORDERED that Petitioners objections are OVERRULED. FURTHER ORDERED that the Court ADOPTS the Magistrate Judges recommendation and Petitioner Troy Arnauds petition for issuance for a writ of habeas corpus pursuant to 28 U.S.C. 2254 is DENIED and DISMISSED WITH PREJUDICE. Signed by Judge Nannette Jolivette Brown on 8/15/2017.(caa)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
TROY ARNAUD

CIVIL ACTION

VERSUS

NO. 16-2957

DARREL VANNOY, WARDEN

SECTION: “G”(5)

ORDER AND REASONS
Before the Court are Petitioner Troy Arnaud’s (“Petitioner”) objections1 to the Report and
Recommendation of the United States Magistrate Judge assigned to the case.2 Petitioner, a state
prisoner incarcerated at the Louisiana State Penitentiary in Angola, Louisiana, filed a petition for
writ of habeas corpus under 28 U.S.C. § 2254, arguing that he was denied the right to testify at
trial and that he received ineffective assistance of trial counsel.3 The Magistrate Judge
recommended that the petition be dismissed on the merits.4 Petitioner objects to the Magistrate
Judge’s recommendation.5 After reviewing the petition, the State’s response, the Magistrate
Judge’s Report and Recommendation, Petitioner’s objections, the record, and the applicable law,
the Court will overrule Petitioner’s objections, adopt the Magistrate Judge’s recommendation and
dismiss this action with prejudice.

1

Rec. Doc. 17.

2

Rec. Doc. 16.

3

Rec. Doc. 1.

4

Rec. Doc. 16.

5

Rec. Doc. 17.

1

I. Background
A.

Factual Background
On June 9, 2011, Petitioner was charged by Indictment in the 24th Judicial District Court

for the Parish of Jefferson with one count of second-degree murder and one count of obstruction
of justice.6 On April 17, 2012, following a jury trial, Petitioner was found guilty as charged.7 On
April 30, 2012, Petitioner was sentenced to life imprisonment without possibility of probation,
parole, or suspension of sentence on the second-degree murder conviction and thirty years
imprisonment on the obstruction of justice conviction.8 The Louisiana Fifth Circuit Court of
Appeal affirmed Petitioner’s convictions and sentences on May 16, 2013.9 The Louisiana Supreme
Court denied Petitioner’s application for a writ of certiorari on March 21, 2014.10
On July 3, 2014, Petitioner filed an application for post-conviction relief in the state trial
court.11 The state trial court denied relief on February 10, 2015.12 Petitioner’s related writ
applications were denied by the Louisiana Fifth Circuit Court of Appeal on April 14, 2015,13 and
by the Louisiana Supreme Court on March 24, 2016.14

6

State Rec., Vol. I of VI, Indictment, June 9, 2011.

7

State Rec., Vol. I of VI, Jury Verdict, Apr. 17, 2012.

8

State Rec., Vol. I of VI, Minute Entry Sentencing, Apr. 30, 2012.

9

State v. Arnaud, 2012-KA-899 (La. App. 5 Cir. 5/16/13); 113 So. 3d 121.

10

State v. Arnaud, 2013-KH-1985 (La. 3/21/14); 135 So.3d 614.

11

State Rec. Vol. I of VI, Application for Post-Conviction Relief, July 3, 2014.

12

State Rec., Vol. I of VI, Order Denying Application for Post-Conviction Relief, Feb. 10, 2015.

13

State Rec., Vol. VI of VI, State v. Arnaud, 2015-KH-177 (La. App. 5 Cir. 4/14/15).

14

State Rec., Vol. VI of VI, State v. Arnaud, 2015-KH-1000 (La. 2/24/16).

2

On April 7, 2016, Petitioner filed this habeas petition.15 First, Petitioner claims that he was
denied the right to testify at trial.16 Second, Petitioner claims that he was denied effective assistance
of trial counsel when his counsel: (1) failed to object to the prosecutor’s misstatement of law of
principals during voir dire; (2) waived opening statement; (3) failed to object to hearsay; (4) failed
to properly cross-examine a witness; (5) failed to object to the prosecutor’s use of expert testimony
to bolster the credibility of a witness; (6) failed to object to the prosecutor’s use of coercion to
prevent Petitioner from testifying at trial; and (7) placed Petitioner at the crime scene during her
closing argument.17 The State filed a response, arguing that the petition should be dismissed on
the merits.18
B.

Report and Recommendation Findings
The Magistrate Judge recommends that the petition be dismissed on the merits.19 First, the

Magistrate Judge examined Petitioner’s claim that he was denied the right to testify at trial.20 The
Magistrate Judge noted that Petitioner submitted an affidavit attesting that: (1) he informed counsel
that he wanted to testify in his defense; (2) defense counsel told him that the prosecutor would
charge Petitioner’s wife as an accessory-after-the-fact to second-degree murder if he testified at
trial; and (3) this “threat” was the sole reason he decided not to testify.21 The Magistrate Judge
also noted that Fifth Circuit precedent establishes that an allegation of trial counsel’s interference

15

Rec. Doc. 1.

16

Id. at 7.

17

Id. at 6; Rec. Doc. 1-1 at 8.

18

Rec. Doc. 15.

19

Rec. Doc. 16.

20

Id. at 10–14.

21

Id. at 10.

3

with a habeas petitioner’s right to testify should be analyzed as an ineffective assistance of counsel
claim.22 The Magistrate Judge stated that “a bare and conclusory assertion of the denial of the right
to testify by counsel is insufficient to establish ineffective assistance.”23 Here, the Magistrate Judge
found that Petitioner’s allegation was speculative and only supported by his own “subjective, selfserving affidavit.”24 The Magistrate Judge also found that Petitioner failed to allege how the
outcome of the trial would have differed had he testified.25 Therefore, the Magistrate Judge
determined that the state court’s rejection of this claim was neither contrary to, nor an unreasonable
application of federal law.26
Moreover, to the extent Petitioner claimed that his right to testify was infringed by the
prosecutor’s alleged threat to charge Petitioner’s wife, the Magistrate Judge noted that the
possibility of Petitioner’s wife being prosecuted existed solely based on the extent of her
involvement.27 Furthermore, the Magistrate Judge determined that Petitioner did not show
prosecutorial misconduct as the District Attorney has sole discretion to determine whom he will
prosecute, and Petitioner did not prove that the prosecutor ever made the statement or that the
potential charges would have been mentioned to defense counsel to intimidate Petitioner.28
Therefore, the Magistrate Judge found that Petitioner was not entitled to relief on this claim.29

22

Id. at 11 (citing Roddy v. Vannoy, 2016 WL 7209696, *1 (5th Cir. 2016)).

23

Id. at 12 (citing United States v. Martinez, 181 F.3d 627, 628 (5th Cir. 1999)).

24

Id. at 13.

25

Id.

26

Id.

27

Id. at 13–14.

28

Id. at 14.

29

Id.

4

Next, the Magistrate Judge addressed Petitioner’s multiple ineffective assistance of counsel
claims.30 First, the Magistrate Judge considered Petitioner’s claim that counsel was ineffective for
failing to object to the prosecutor’s alleged misstatement of the law of principals during voir dire.31
The Magistrate Judge noted that the prosecutor used a hypothetical during voir dire to illustrate
how an individual could be held responsible as a principal to a crime.32 The Magistrate Judge noted
that the state trial court found that Petitioner had not demonstrated that the hypothetical was
inaccurate, and the Magistrate Judge agreed with this determination.33 Therefore, the Magistrate
Judge found that the hypothetical was proper and there were no legal grounds for defense counsel
to object.34 Moreover, the Magistrate Judge found that Petitioner did not show any prejudice
resulted from the failure to object because the prosecutor prefaced his comments by stating that
the trial judge would instruct the jury on the law, and the jury was instructed by the trial court that
any arguments made by counsel were not evidence.35 Therefore, the Magistrate Judge determined
that the state court’s finding that Petitioner failed to establish deficient performance or prejudice
was reasonable.36
Second, the Magistrate Judge addressed Petitioner’s claim that counsel was ineffective
because she failed to make an opening statement.37 The Magistrate Judge noted that the decision

30

Id. at 14–34.

31

Id. at 17–23.

32

Id. at 21.

33

Id.

34

Id.

35

Id. 21–22.

36

Id.

37

Id. at 23–24.

5

to make an opening statement is a matter of trial strategy,38 and trial strategy is presumed to be
objectively reasonable unless a habeas petitioner can clearly prove otherwise.39 Because Petitioner
had alleged no specific facts to show how counsel’s decision was objectively unreasonable, the
Magistrate Judge determined that Petitioner failed to meet his burden of showing deficient
performance.40 Furthermore, the Magistrate Judge found that Petitioner failed to show that he was
prejudiced by counsel’s decision, because Petitioner failed to provide any particular facts or
relevant information that would have likely changed the outcome of the trial if conveyed during
opening statements.41 Accordingly, the Magistrate Judge determined that the state court’s
determination that neither deficient performance nor prejudice were established was not an
unreasonable application of federal law.42
Third, the Magistrate Judge addressed Petitioner’s assertion that counsel was ineffective
for failing to object to alleged hearsay offered by Sergeant David Spera at trial.43 Specifically,
Petitioner asserted that Sergeant Spera’s testimony regarding his firsthand knowledge of the
investigation and actions he took during the investigation was hearsay because Sergeant Spera
indicated that he had retrieved some information from Petitioner’s wife.44 The Magistrate Judge
determined that there was no deficient performance because Sargent Spera’s testimony did not
constitute hearsay as he did not offer any out-of-court statements made by Petitioner’s wife, and

38

Id. at 23 (citing Murray v. Maggio, 736 F.2d 279, 283 (5th Cir. 1984)).

39

Id. at 24 (citing Geiger v. Cain, 540 F.3d 303, 309 (5th Cir. 2008)).

40

Id.

41

Id.

42

Id.

43

Id. at 25–27.

44

Id. at 25–26.

6

so an objection would have been futile.45 The Magistrate Judge also found that, even assuming the
testimony constituted hearsay, deciding whether to raise objections before a jury is a matter of trial
strategy.46 Accordingly, the Magistrate Judge concluded that the state court’s rejection of this
claim was neither contrary to nor an unreasonable application of federal law.47
Fourth, the Magistrate Judge addressed Petitioner’s claim that counsel was ineffective in
failing to conduct a proper cross-examination of co-defendant Gregory Ford about a prior incident
at his mother’s house.48 Specifically, Petitioner alleged that two weeks before the murder, a
Hispanic individual shot at Ford’s mother’s house and made threatening phone calls to Ford.49
Petitioner asserted that, due to the proximity of that incident and the fact that the murder victim
was Hispanic, counsel’s failure to question Ford about that incident fell below prevailing
professional norms.50 The Magistrate Judge found Petitioner’s argument that this line of
questioning would have revealed a motive for Ford to commit the murder unconvincing.51 The
Magistrate Judge also found that counsel’s decision to focus her cross-examination of Ford on the
circumstances surrounding the murder and discrediting Ford was a reasonable trial strategy.52 The
Magistrate Judge also found that Petitioner failed to establish that the result of the trial would have

45

Id. at 26.

46

Id.

47

Id. at 27.

48

Id. at 27–29.

49

Id. at 27.

50

Id.

51

Id. at 28.

52

Id.

7

been different if counsel had questioned Ford on the shooting at his mother’s house.53 Therefore,
the Magistrate Judge determined that the state court’s rejection of this claim was not contrary to
or an unreasonable application of federal law.54
Fifth, the Magistrate Judge addressed Petitioner’s claim that counsel was ineffective for
failing to object to expert testimony regarding the physical evidence at the crime scene and whether
the physical evidence matched Ford’s description of the events.55 The Magistrate Judge found that
Petitioner failed to explain how the testimony was improper, and so any objection would have
been futile.56 Thus, the Magistrate Judge determined that the state court’s rejection of the claim
was neither contrary to nor an unreasonable application of federal law.57
Sixth, the Magistrate Judge addressed Petitioner’s claim that counsel was ineffective for
failing to object to the prosecutor’s alleged threat to charge Petitioner’s wife with accessory-afterthe-fact to murder if Petitioner testified at trial.58 The Magistrate Judge reiterated that he found
this claim to be speculative and unsupported, because Petitioner had not established that any threat
was actually made.59 Moreover, the Magistrate Judge noted that the possibility of bringing charges
against Petitioner’s wife existed whether or not Petitioner testified at trial.60 The Magistrate Judge

53

Id. at 28–29.

54

Id. at 29.

55

Id. at 29–30.

56

Id. at 30.

57

Id.

58

Id. at 30–31.

59

Id. at 31.

60

Id.

8

therefore determined that the state court’s rejection of this claim was not contrary to or an
unreasonable application of federal law.61
Finally, the Magistrate Judge addressed Petitioner’s claim that counsel was ineffective
during closing argument when she conceded that Petitioner was in Ford’s vehicle at the time of
the murder because it contradicted the statements Petitioner gave to police.62 The Magistrate Judge
noted that “deference to counsel's tactical decisions in his closing presentation is particularly
important because of the broad range of legitimate defense strategy at that stage.”63 The Magistrate
Judge also noted that a review of the trial transcript revealed that Petitioner’s counsel did not
concede that the evidence proved that Petitioner was in the car at the time of the murder, but instead
that he was in the car when Ford and the victim left the daiquiri shop.64 Furthermore, the Magistrate
Judge found that “[c]ounsel argued in closing that the evidence indicated that Ford alone possessed
the ability and intent to rob the victim and that Ford killed the victim during the robbery and
[Petitioner] was simply in the wrong place at the wrong time.”65 Accordingly, the Magistrate Judge
determined that Petitioner failed to overcome the presumption that counsel’s decision was a result
of sound trial strategy or to establish prejudice.66 Therefore, the Magistrate Judge determined that
the state court’s rejection of this claim was neither contrary to nor an unreasonable application of
federal law.67

61

Id.

62

Id. at 31–34.

63

Id. at 32 (quoting Yarborough v. Gentry, 540 U.S. 1, 5–6 (2003)).

64

Id.

65

Id. at 33.

66

Id. at 33.

67

Id.

9

II. Objections
A.

Petitioner’s Objections
Petitioner objects to the Magistrate Judge’s Report and Recommendation.68 First,

Petitioner argues that he was denied his constitutional right to testify at trial.69 Petitioner repeats
the assertions made in his affidavit that: (1) he informed counsel that he wanted to testify in his
defense; (2) defense counsel told him that the prosecutor would charge Petitioner’s wife as an
accessory-after-the-fact to second-degree murder if he testified at trial; and (3) this “threat” was
the sole reason he decided not to testify.70
Petitioner argues that his trial counsel has ignored his requests that she provide him with
evidence to support this claim, and his wife is too intimidated to execute an affidavit.71 Moreover,
Petitioner contends that the state trial court deprived him of his right to develop evidence on this
issue by denying his request for an evidentiary hearing.72 Petitioner also objects to the Magistrate
Judge’s determination that the prosecutor’s conduct did not infringe upon his right to testify.73
Petitioner argues that the district attorney’s discretion as to who to prosecute does not allow the
district attorney to prevent Petitioner from exercising his constitutional right to testify at trial.74
Petitioner asserts that the assistant district attorney told counsel that Petitioner’s wife would be

68

Rec. Doc. 17.

69

Id. at 1.

70

Id.

71

Id. at 2.

72

Id. at 3.

73

Id.

74

Id.

10

charged if Petitioner testified, and this “unethical abuse of power” effectively denied Petitioner the
right to testify.75
Regarding his remaining ineffective assistance of counsel claims, Petitioner argues, as an
initial matter, that the Magistrate Judge assumed trial counsel acted strategically when there was
no evidence of a strategic decision, and that the Magistrate Judge failed to consider the weakness
of the state’s case in assessing the potential prejudice.76 Petitioner asserts that the court should not
“fabricate tactical decisions on behalf of counsel when it appears on the face of the record that
counsel made no strategic decisions at all.”77
Second, Petitioner objects to the Magistrate Judge’s finding that counsel’s failure to make
an opening statement falls within the area of trial strategy.78 Petitioner asserts that this is an
example of the Magistrate Judge “fabricating tactical decisions on behalf of counsel.”79 Petitioner
asserts that there could be no possible strategy in waiving an opening statement, and the only
logical conclusion is that counsel was overburdened and did not have adequate time to prepare.80
Petitioner also objects to the Magistrate Judge’s finding that he failed to prove prejudice on this
issue, because if counsel had established from the beginning how suspect the State’s evidence was,
it is likely the jury would have been more skeptical of the evidence and the State’s witness, Gregory
Ford.81

75

Id.

76

Id. at 4–5.

77

Id. at 4.

78

Id. at 5.

79

Id.

80

Id. at 5–6.

81

Id. at 6.

11

Third, Petitioner objects to the Magistrate Judge’s finding that Sergeant Spera’s testimony
was not hearsay.82 Petitioner argues that the Magistrate Judge’s finding is unreasonable.83
Petitioner asserts that Sergeant Spera’s testimony is irrelevant except to establish that “Petitioner
must have talked to his wife about the murder and therefore probably was involved in the murder
himself.”84
Fourth, Petitioner objects to the Magistrate Judge’s finding that counsel’s failure to
question Ford about an unrelated incident was reasonable trial strategy.85 Petitioner argues that
‘[t]his is another example of the Magistrate Judge fabricating tactical decisions on behalf of
counsel in wholly inappropriate situations.”86 Petitioner asserts that it is a “virtual certainty” that
counsel did not address the issue because she did not have time to investigate the matter.87
Moreover, Petitioner contends that he has established prejudice because if the jury heard about this
incident, they might have been persuaded that Ford had a motive to kill the victim.88
Fifth, Petitioner objects to the Magistrate Judge’s finding that his counsel was not
ineffective in failing to object to the expert testimony.89 Petitioner argues that the expert testimony
was improper because the prosecutor repeatedly asked the experts if Ford’s testimony aligned with

82

Id.

83

Id. at 7.

84

Id.

85

Id.

86

Id.

87

Id. at 7–8.

88

Id. at 8.

89

Id.

12

the physical evidence in an attempt to “pound into the jury the message that they should believe
Ford’s testimony because it was validated by the State’s expert witnesses.”90
Finally, Petitioner objects to the Magistrate Judge’s finding that counsel’s placement of
Petitioner at the crime scene during closing argument was a reasonable trial strategy.91 Petitioner
argues that he told the police and his counsel that he was not in the car at the time of the murder,
and his “counsel cannot fabricate factual details of the crime.”92 Petitioner also objects to the
Magistrate Judge’s finding that Petitioner did not establish prejudice.93 Petitioner asserts that the
State’s evidence was not overwhelming, and it is likely that “the jury would have been even more
skeptical of the State’s case had Petitioner’s trial counsel not destroyed his credibility by telling
the jury that he lied to the police.”94
B.

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

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

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

provide a Report and Recommendation. The District Judge “may accept, reject, or modify the

90

Id.

91

Id.

92

Id. at 8–9.

93

Id.

94

Id. at 9.

13

recommended disposition” of a Magistrate Judge on a dispositive matter.95 The District Judge must
“determine de novo any part of the [Report and Recommendation] that has been properly objected
to.”96 The District Court’s review is limited to plain error for parts of the report which are not
properly objected to.97
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.”98 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.”99 A state court’s determinations on mixed questions of law and fact or pure
issues of law, on the other hand, are to be upheld unless they are “contrary to, or involve[ ] an
unreasonable application of, clearly established Federal law, as determined by the Supreme Court
of the United States.”100
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
95

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

96

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).
97

98

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

99

28 U.S.C. § 2254(d)(2).

100

28 U.S.C. § 2254(d)(1).

14

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.101
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.’”102 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.”103
IV. Law and Analysis
A.

Denial of Right to Testify at Trial
Petitioner objects to the Magistrate Judge’s rejection of his claim that he was denied the

right to testify at trial.104 Petitioner argues that the prosecutor indirectly coerced him into not
testifying by threatening to “charge Petitioner’s wife as an accessory after the fact to second degree
murder.”105 Petitioner asserts that the district attorney’s discretion as to who to prosecute does not
allow the district attorney to prevent Petitioner from exercising his constitutional rights.106
Petitioner asserts that the assistant district attorney told counsel that Petitioner’s wife would be

101

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

102

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

103

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

104

Rec. Doc. 16 at 1.

105

Id. at 3.

106

Id.

15

charged if Petitioner testified, and this “unethical abuse of power” effectively denied Petitioner the
right to testify.107 Therefore, the Court reviews this issue de novo.108
A defendant has a fundamental constitutional right to testify at trial.109 “A waiver of this
right must be knowing and voluntary, and it must be made by the defendant rather than his
counsel.”110 The Fifth Circuit has held that “when a defendant contends that trial counsel interfered
with his right to testify, ‘the appropriate vehicle for such claims is a claim of ineffective assistance
of counsel.’”111
Here, Petitioner presents only his own self-serving, unsupported affidavit to support his
assertion that the prosecutor infringed on his right to testify at trial. The affidavit states, “When I
told [defense counsel] that I wanted to testify, she told me that the district attorney told her that if
I take the stand, he was going to charge my wife, Evelyn Arnaud, as an accessory after the fact to
the second degree murder, but that if I don’t take the stand, he would leave her alone.”112 Therefore,
to the extent that Petitioner argues the prosecutor interfered with his right to testify, he has not
shown that the prosecutor actually made such a statement or that such a statement, if made, was
made for the purpose of interfering with his right to testify at trial. Accordingly, the Court finds
that the state court’s denial of relief on this issue was not contrary to or an unreasonable application
of federal law.

107

Id.

108

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

109

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

110

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

111

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

112

Rec. Doc. 1-5 at 12.

(1987)).

16

Petitioner does not object to the Magistrate Judge’s determination that Petitioner is not
entitled to relief on his claim that his trial counsel performed ineffectively in denying him the right
to testify at trial.113 Therefore, reviewing for plain error, and finding none, the Court adopts the
Magistrate Judge’s determination that the state court’s denial of relief on this issue was neither
contrary to nor an unreasonable application of federal law.
B.

Remaining Ineffective Assistance of Counsel Claims
Petitioner claims that he was denied effective assistance of trial counsel when his counsel:

(1) failed to object to the prosecutor’s misstatement of law of principals during voir dire; (2)
waived opening statement; (3) failed to object to hearsay; (4) failed to properly cross-examine a
witness; (5) failed to object to the prosecutor’s use of expert testimony to bolster the credibility of
a witness; (6) failed to object to the prosecutor’s use of coercion to prevent Petitioner from
testifying at trial; and (7) placed Petitioner at the crime scene during her closing argument.114
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.115 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.116 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.117 Petitioner must show that the conduct

113

Rec. Doc. 17.

114

Rec. Doc. 1-1 at 8.

115

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

116

Id. at 697.

117

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

17

was so egregious that it failed to meet the constitutional minimum guaranteed by the Sixth
Amendment.118 Courts addressing this prong of the test for ineffective counsel must consider the
reasonableness of counsel’s actions in light of all the circumstances.119 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.”120 A
reasonable probability is “a probability sufficient to undermine confidence in the outcome.”121
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.”122 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.”123 Thus, this standard is considered “doubly deferential” on habeas corpus
review.124
1.

Failure to Object During Voir Dire

Petitioner does not object to the Magistrate Judge’s determination that Petitioner is not
entitled to relief on his claim that defense counsel performed deficiently in failing to object to the

118

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

119

See Strickland, 466 U.S. at 689.

120

Id. at 694.

121

Id.

122

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

123

Id.

124

Id.

(2007)).

18

prosecutor’s alleged misstatement of the law of principals during voir dire.125 The Magistrate
Judge noted that the prosecutor used a hypothetical during voir dire to illustrate how an individual
could be held responsible as a principal to a crime.126 The Magistrate Judge also noted that the
state trial court found that Petitioner had not demonstrated that the hypothetical was inaccurate,
and the Magistrate Judge agreed with this determination.127 Therefore, the Magistrate Judge found
that the hypothetical was proper and there were no legal grounds for defense counsel to object.128
Moreover, the Magistrate Judge found that Petitioner did not show any prejudice from the failure
to object because the prosecutor prefaced his comments by stating that the trial judge would
instruct the jury on the law, and the jury was instructed by the trial court that any arguments made
by counsel were not evidence.129 Reviewing for plain error, and finding none, the Court adopts the
Magistrate Judge’s determination that the state court’s denial of relief on this issue was neither
contrary to nor an unreasonable application of federal law.
2.

Waiver of Opening Statement

Petitioner objects to the Magistrate Judge’s determination that counsel’s decision to forgo
an opening statement was reasonable trial strategy and therefore did not constitute deficient
performance.130 Petitioner asserts that there was no possible strategy involved in waiving an
opening statement, and counsel only did so because she did not have adequate time to prepare.131

125

Rec. Doc. 17.

126

Rec. Doc. 16 at 21.

127

Id.

128

Id.

129

Id. 21–22.

130

Rec. Doc. 17 at 5.

131

Id. at 5–6.

19

Petitioner also objects to the Magistrate Judge’s finding that he failed to prove prejudice on this
issue, because had counsel established from the beginning how suspect the State’s evidence was,
it is likely the jury would have been more skeptical of the evidence and the State’s witness, Gregory
Ford.132 Therefore, the Court reviews this issue de novo.133
The Fifth Circuit has found that “The decision of whether to present an opening statement
falls with the zone of trial strategy.”134 “[A] conscious and informed decision on trial tactics and
strategy cannot be the basis for constitutionally ineffective assistance of counsel unless it is so ill
chosen that it permeates the entire trial with obvious unfairness.”135 There is a “strong
presumption: that counsel’s strategy falls “within the wide range of reasonable professional
assistance.”136 “[T]he petitioner bears the burden of demonstrating that the choices made were not
within the realm of trial strategy.”137
In the instant case, Petitioner does not provide any evidence that counsel’s decision to forgo
an opening statement was nonstrategic. Petitioner asserts that counsel was overburdened and did
not have adequate time to prepare. However, he relies only on his own conclusory statements to
support this assertion. As Petitioner has not produced any evidence that counsel’s decision to waive
an opening statement was not a strategic one, he has not met his burden of proving deficient
performance.

132

Id. at 6.

133

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

134

Murray v. Maggio, 736 F.2d 279, 283 (5th Cir. 1984) (citing William v. Beto, 354 F.2d 698, 703 (5th Cir.

135

Geiger v. Cain, 540 F.3d 303, 309 (5th Cir. 2008) (internal citations and quotation marks omitted).

136

Strickland, 466 U.S. at 690.

137

Bishop v. Epps, 265 F. App’x 285, 290 (5th Cir. 2008).

1965).

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Moreover, Petitioner has not shown that he was prejudiced by his counsel’s decision.
Petitioner asserts that there is a reasonable probability that the jury would have been more skeptical
of the State’s evidence had counsel outlined the defense’s position from the outset. However, the
record shows that counsel spent much time attempting to discredit Ford’s credibility during her
cross-examination of Ford and closing arguments. Petitioner does not identify any information that
was not conveyed to the jury that would have likely altered the outcome of the case. Accordingly,
the Court finds that the state court’s determination that neither deficient performance nor prejudice
were established was not contrary to or an unreasonable application of federal law.
3.

Failure to Object to Alleged Hearsay

Petitioner objects to the Magistrate Judge’s finding that Sergeant Spera’s testimony was
not hearsay.138 Accordingly, this claim is reviewed de novo.139
At trial, Sergeant Spera testified that he went to Waggaman, Louisiana, to look for the body
of the victim.140 Sergeant Spera testified that he went to the Waggaman area “following directions
from information we had retrieved during the investigation.”141 Specifically, Sergant Spera stated
that he had retrieved this information from Petitioner’s wife, Evelyn Anaud.142
Louisiana law defines hearsay as “a statement, other than one made by the declarant while
testifying at the present trial or hearing, offered in evidence to prove the truth of the matter
asserted.”143 Sergeant Spera’s statement was not hearsay because he did not offer an out-of-court

138

Rec. Doc. 17 at 6–7.

139

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

140

Rec. Doc. 1-1 at 12.

141

Id. at 11.

142

Id.

143

La. Code of Evid. Art. 801(C).

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statement made by Petitioner’s wife. His testimony is limited to his personal knowledge gained
from the criminal investigation.
The Fifth Circuit has recognized that “an attorney’s failure to raise a meritless argument
. . . cannot form the basis of a successful ineffective assistance of counsel claim because the result
of the proceeding would not have been different had the attorney raised the issue.”144 Because
Sergeant Spera’s testimony was not hearsay, an objection would have been futile. Therefore,
counsel’s failure to object was not deficient performance. Accordingly, the state court’s denial of
relief on this claim was not contrary to, or an unreasonable application of federal law.
4.

Failure to Properly Cross-Examine a Witness

Petitioner objects to the Magistrate Judge’s finding that counsel’s failure to question Ford
about an unrelated incident was reasonable trial strategy.145 Petitioner asserts that it is a “virtual
certainty” that counsel did not address the issue because she did not have time to investigate the
matter.146 Moreover, Petitioner contends that he has established prejudice because if the jury heard
about this incident, they might have been persuaded that Ford had a motive to kill the victim.147
The Fifth Circuit has held that decisions regarding cross-examination are strategic in
nature, and thus usually “will not support an ineffective assistance of counsel claim.”148
Furthermore, the Supreme Court has recognized that “[w]hen counsel focuses on some issues to
the exclusion of others, there is a strong presumption that he did so for tactical reasons rather than

144

United States v. Kimler, 167 F.3d 889, 893 (5th Cir. 1999).

145

Rec. Doc. 17 at 7.

146

Id. at 7–8.

147

Id. at 8.

148

United States v. Bernard, 762 F.3d 467, 472 (5th Cir. 2014) (quoting Dunham v. Travis, 313 F.3d 724,
732 (2d Cir. 2002)).

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through sheer neglect.”149 Such a “presumption has particular force where a petitioner bases his
ineffective-assistance claim solely on the trial record, creating a situation in which a court may
have no way of knowing whether a seemingly unusual or misguided action by counsel had a sound
strategic motive.”150
Petitioner alleges that two weeks before the murder, a Hispanic individual shot at Ford’s
mother’s house and made threatening phone calls to Ford.151 Petitioner asserts that, due to the
proximity of that incident and the fact that the murder victim was Hispanic, counsel’s failure to
question Ford about that incident fell below prevailing professional norms.152 A review of the
record reveals that counsel decided to focus her cross-examination of Ford on the circumstances
surrounding the murder and discrediting Ford. This was a reasonable trial strategy. Moreover,
Petitioner has not established that the result of the trial would have been different if counsel had
questioned Ford on the shooting at his mother’s house. Therefore, the state court’s rejection of this
claim was not contrary to or an unreasonable application of federal law.
5.

Failure to Object to Expert Testimony

Petitioner objects to the Magistrate Judge’s finding that his counsel was not ineffective in
failing to object to the expert testimony.153 Petitioner argues that the expert testimony was
improper because the prosecutor repeatedly asked the experts if Ford’s testimony aligned with the
physical evidence in an attempt to “pound into the jury the message that they should believe Ford’s

149

Yarborough v. Gentry, 540 U.S. 1, 5 (2003).

150

Id. at 5–6 (internal citations and quotation marks omitted).

151

Rec. Doc. 1-1 at 13.

152

Id. at 14.

153

Rec. Doc. 17 at 8.

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testimony because it was validated by the State’s expert witnesses.”154 Accordingly, the Court
reviews this issue de novo.155
Pursuant to the Louisiana Code of Evidence article 702, “[a] witness who is qualified as an
expert by knowledge, skill, experience, training, or education may testify in the form of an
opinion.” At Petitioner’s trial, the expert witnesses called by the State testified that the physical
evidence of the crime was consistent with the factual basis of Ford’s guilty plea.156 As noted above,
“an attorney’s failure to raise a meritless argument . . . cannot form the basis of a successful
ineffective assistance of counsel claim because the result of the proceeding would not have been
different had the attorney raised the issue.”157 Because the expert witnesses could offer an opinion
on the physical evidence, an objection would have been futile. Therefore, counsel’s failure to
object was not deficient performance. Accordingly, the state court’s denial of relief on this claim
was not contrary to, or an unreasonable application of federal law.
6.

Failure to Object to Prosecutorial Misconduct

Petitioner does not object to the Magistrate Judge’s determination that Petitioner is not
entitled to relief on his claim that defense counsel performed deficiently in failing to object to the
prosecutor’s alleged threat to charge Petitioner’s wife with accessory-after-the-fact to murder if
Petitioner testified at trial.158 The Magistrate Judge found the claim to be speculative and
unsupported, because Petitioner had not established that any threat was actually made.159

154

Id.

155

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

156

State Rec., Vol. V of VI, Trial Transcript.

157

Kimler, 167 F.3d at 893.

158

Rec. Doc. 17.

159

Rec. Doc. 16 at 31.

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Moreover, the Magistrate Judge noted that the possibility of bringing charges against Petitioner’s
wife existed whether or not Petitioner testified at trial.160 Reviewing for plain error, and finding
none, the Court adopts the Magistrate Judge’s determination that the state court’s denial of relief
on this issue was neither contrary to nor an unreasonable application of federal law.
7.

Mistaken Reference During Closing Argument

Finally, Petitioner objects to the Magistrate Judge’s finding that counsel’s placement of
Petitioner at the crime scene during closing argument was a reasonable trial strategy.161 Petitioner
argues that he told the police and his counsel that he was not in the car at the time of the murder,
and his “counsel cannot fabricate factual details of the crime.”162 Petitioner also objects to the
Magistrate Judge’s finding that Petitioner did not establish prejudice.163 Petitioner asserts that the
State’s evidence was not overwhelming, and it is likely that “the jury would have been even more
skeptical of the State’s case had Petitioner’s trial counsel not destroyed his credibility by telling
the jury that he lied to the police.”164 Because Petitioner objects to the Magistrate Judge’s
recommendation, this Court reviews this issue de novo.165
As discussed above, it is well settled that attorneys are afforded wide discretion in trial
strategy and tactics.166 The Supreme Court has held that “[w]hen counsel focuses on some issues

160

Id.

161

Rec. Doc. 17 at 8.

162

Id. at 8–9.

163

Id.

164

Id. at 9.

165

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

166

Yarbororough, 540 U.S. at 5–6.

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to the exclusion of others, there is a strong presumption that he did so for tactical reasons rather
than through sheer neglect.”167
Reviewing defense counsel’s closing argument, it’s clear that counsel did not state that
Petitioner was in the car at the time the murder occurred, and instead she merely highlighted the
fact that Petitioner was in the car at some point during the chain of events leading to the murder.168
Petitioner concedes that he was in the car when Ford and the victim left the daiquiri shop.
Furthermore, during closing arguments defense counsel argued that the evidence indicated that
Ford alone possessed the ability and intent to rob the victim and that Ford killed the victim during
the robbery and Petitioner was simply in the wrong place at the wrong time.169 Accordingly,
Petitioner has failed to overcome the presumption that counsel’s decision was a result of sound
trial strategy. Therefore, the state court’s rejection of this claim was neither contrary to nor an
unreasonable application of federal law.
V. Conclusion
For the reasons stated above, Petitioner has not shown that the state court’s denial of relief
on his right to testify claim and 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;

167

Id.

168

State Rec., Vol. V of VI, Trial Transcript.

169

Id. at 33.

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IT IS FURTHER ORDERED that the Court ADOPTS the Magistrate Judge’s
recommendation and Petitioner Troy Arnaud’s petition for issuance for a writ of habeas corpus
pursuant to 28 U.S.C. § 2254 is DENIED and DISMISSED WITH PREJUDICE.

15th
NEW ORLEANS, LOUISIANA, this ____ day of August, 2017.

__________________________________
NANNETTE JOLIVETTE BROWN
UNITED STATES DISTRICT JUDGE

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