Harris v. Vannoy et al

Filing 18

ORDER AND REASONS: It is ORDERED that the Magistrate Judge's 16 Report and Recommendation is ADOPTED, the Petitioner's objections are OVERRULED, and the instant habeas corpus petition is DISMISSED WITH PREJUDICE, as set forth in document. Signed by Judge Ivan L.R. Lemelle on 11/21/2017.(jls)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
TERRY HARRIS

CIVIL ACTION

VERSUS

NO. 16-10938

DARRELL VANNOY

SECTION “B”(2)
ORDER AND REASONS

Before

the

Court

is

Petitioner

Terry

Harris’s

petition

pursuant to 28 U.S.C § 2254 for a writ of habeas corpus (Rec. Doc.
1) and Respondent Darrell Vannoy’s opposition (Rec. Doc. 14).
Additionally, in a Report and Recommendation, Magistrate Judge
Wilkinson

recommended

that

the

petition

be

dismissed

with

prejudice. Rec. Doc. 16. Petitioner timely filed objections to the
Report and Recommendation. Rec. Doc. 17.
For the reasons enumerated below, it is ORDERED that the
Magistrate

Judge’s

Report

and

Recommendation

is

ADOPTED,

the

Petitioner’s objections are OVERRULED, and the instant habeas
corpus petition is DISMISSED WITH PREJUDICE.

FACTS AND PROCEDURAL HISTORY
Petitioner
Penitentiary

in

is

incarcerated

Angola,

at

Louisiana.

the
On

Louisiana

September

9,

State
2004,

Petitioner was indicted by a Jefferson Parish grand jury and
charged with aggravated rape of a juvenile male, M.B. St. Rec.
Vol. 1 of 12, Grand Jury Return.

A. State Trial
Petitioner was tried before a jury and found guilty of
forcible rape, a lesser offense than the charged crime. St. Rec.
Vol. 1 of 12, Trial Minutes; Jury Verdict. Petitioner’s motion in
arrest of judgment and for a new trial was denied by the state
trial court on January 7, 2010. St. Rec. Vol. 1 of 12, Motion in
Arrest of Judgment and Alternatively Motion for New Trial. The
court sentenced Petitioner to thirty-eight (38) years in prison
without benefit of parole, probation, or suspension of sentence.
St. Rec. Vol. 1 of 12, Sentencing Minutes.
Petitioner also plead not guilty to the multiple offender
bill on January 7, 2010. St. Rec. Vol. 1 of 12, Sentencing Minutes.
The

court

then

vacated

the

former

sentence,

and

sentenced

Petitioner as a multiple offender to seventy-six (76) years in
prison without benefit of probation or suspension of sentence
instead. St. Rec. Vol. 1 of 12, Pro Tunc Minute Entry.
Petitioner directly appealed to the Louisiana Fifth Circuit,
where his appointed counsel asserted that the trial court erred
(1) when it denied the defense’s motion to quash his indictment
based on delayed prosecution beyond the period allowed by law, and
(2) when it did not instruct the jury on the meaning of “acquittal”
in connection with the admission of other crimes evidence. St.
Rec. Vol. 9 of 12, Appeal Brief, 2011-KA-0253. Petitioner also
filed a pro se supplemental brief where he asserted (1) that he

2

was denied due process when he was not allowed to confront and
cross-examine witnesses during the Prieur hearing on the other
crimes evidence, and (2) that he was convicted without proof of
guilt beyond a reasonable doubt. St. Rec. Vol. 9 of 12, Pro Se
Supplemental Brief, 2011-KA-253.
The

Louisiana

Fifth

Circuit

affirmed

the

conviction

on

December 28, 2011, finding all of Petitioner’s claims meritless.
State v. Harris, 83 So. 3d 269 (La. App. 5 Cir. 12/28/11). The
Louisiana

Supreme

Court

denied

Petitioner’s

related

writ

application on August 22, 2012 without stated reasons. State v.
Harris, 97 So. 3d 376 (La. 2012).
B. State Collateral Review
On

March

11,

2013,

Petitioner

requested

post-conviction

relief from the state trial court, asserting the following grounds:
(1) he was denied the right to a fair trial when the state trial
court allowed a correctional officer from the parish jail where he
was housed to sit on the jury; (2) he was denied a fair trial when
the state trial court allowed pictures into the jury room during
deliberations and his counsel failed to object; (3) his counsel
was ineffective by failing to object to the pictures taken into
the jury room; (4) he was denied a fair trial by the State’s
reliance on false testimony; (5) he was denied a fair trial when
the state trial court denied defense counsel the opportunity to
lay a foundation for impeachment evidence, and denied the request

3

to wait for a detective to testify about inconsistent statements;
(6) he was denied a fair trial when counsel failed to object to a
modified Allen charge; and (7) his counsel was ineffective based
on a conflict between counsel and Petitioner. St. Rec. Vol. 2 of
12, Application for Post-Conviction Relief.
The state trial court denied relief as procedurally improper
because Petitioner failed to specify the factual bases in support
of his claims. St. Rec. Vol. 2 of 12, Trial Court Order. The
Louisiana

Fifth

Circuit

remanded

the

matter

for

further

consideration, and the state trial court then found that Claims 1,
2, 4, and 5 were procedurally barred from review under Louisiana
Code of Criminal Procedure articles 930.4(B) and/or (C). St. Rec.
Vol. 2 of 12, Trial Court Order 3/26/14.

The state trial court

also found that Claims 3, 6, and 7 failed to establish ineffective
assistance of counsel under Strickland v. Washington, 466 U.S. 668
(1984), and related state case law. St. Rec. Vol. 2 of 12, Trial
Court Order 3/26/14.
On

May

21,

2015,

the

Louisiana

Fifth

Circuit

denied

Petitioner’s writ application, citing the same reasons given by
the state trial court. St. Rec. Vol 12 of 12, 5th Cir. Order, 15KH-241, 5/21/15. The Louisiana Supreme Court denied Petitioner’s
writ application as meritless under Strickland, and as otherwise
procedurally barred under Louisiana Code of Criminal Procedure
Articles 930.2 and 930.4, with incorporated reference to the

4

reasons given by the state trial court. State ex rel. Harris v.
State, 193 So. 3d 133 (La. 2016).
C. Petition for Federal Habeas Corpus Relief
Petitioner filed the instant petition for federal habeas
corpus relief on June 17, 2016. Rec. Doc. 1. Petitioner’s habeas
allegations are as follows:
1) The state trial court erred when it denied
Petitioner’s motion to quash his indictment based on
delayed commencement of trial after the period allowed
by law;
2) The state trial court erred when it allowed the State
to introduce testimony about a crime for which he was
acquitted without instructing the jury on the meaning
of “acquittal;”
3) The state trial court erred when it denied
Petitioner’s application for post-conviction relief
because he did not have the trial record when he filed
his application;
4) He was denied the right to a fair trial when the state
trial court allowed a correctional officer from the
parish jail where he was housed to sit on the jury;
5) He was denied a fair trial when the state court
allowed pictures into jury room deliberations that

5

were not related to the crime being tried and his
counsel did not object;
6) He was denied effective counsel when (a) his trial
counsel failed to object to pictures being taken into
the jury room, and (b) his appellate counsel did not
assert the issue on appeal;
7) (a)The State showed a witness evidence before trial so
she could change her testimony and (b) relied on false
testimony;
8) He was denied a fair trial when the state trial court
denied him the right to present a defense;
9) (a) he was denied effective assistance of counsel when
his counsel failed to object to an Allen charge, and
(b) the state trial court erroneously told the jury
during deliberations that the verdict had to be by a
10 to 2 vote;
10) His counsel was ineffective based on a conflict
between counsel and Petitioner;
11) The evidence was insufficient because the victim
stated at trial that the incident occurred on a date
when Petitioner was in jail; and
12) He was denied effective assistance of counsel because
(a) his trial counsel failed to call witnesses to
prove Petitioner was in jail when the victim said the

6

crime was committed, and (b) his appellate counsel
failed to assert actual innocence and false testimony
claims. Rec. Doc. 1.
The State filed a response in opposition to the Petition,
addressing the first ten claims. Rec. Doc. 14. The State argues
that Petitioner’s Claims 1, 3, and 10 failed to state a cognizable
basis for federal habeas relief, Claims 4, 5, 7, 8, and 9(b) are
in procedural default, and Claims 2, 6, and part of 9(a) are
meritless. Rec. Doc. 14.
MAGISTRATE’S REPORT AND RECOMMENDATION
The

Magistrate

Judge

addressed

and

dismissed

each

of

Petitioner’s claims. Rec. Doc. 16. Accordingly, the Magistrate
Judge recommended that the petition be dismissed with prejudice.
Rec. Doc. 16 at 1.
PETITIONER’S OBJECTIONS
Petitioner

objects

to

the

Magistrate’s

Report

and

Recommendation. Rec. Doc. 17. In his objection, Petitioner argues
that the following grounds justify relief, most of which are
restatements of the arguments in his petition: (1) Claims 4,5,7,8,
and 9 were not in procedural default; (2) the state trial court
erred when it denied Petitioner’s motion to quash his indictment;
(3) the state trial court erred when it allowed the State to
introduce evidence from a crime of which Petitioner was acquitted;
(4) the state trial court erred when it denied Petitioner’s

7

application for post-conviction relief; (5) the State relied on
false testimony in order to obtain Petitioner’s conviction; (6)
the evidence introduced at trial was insufficient to prove his
guilt; and (7) Petitioner’s trial and appellate counsel provided
ineffective assistance of counsel. Rec. Doc. 17.
STANDARD OF REVIEW
The Antiterrorism and Effective Death Penalty Act of 1966
(AEDPA) controls this Court’s review of a § 2254 petition. The
threshold questions in a habeas review are whether the petition is
timely and whether the claims raised by the petitioner were
adjudicated on the merits in a state court; meaning, a petitioner
must have exhausted state court remedies and his claims must not
be in “procedural default.” Nobles v. Johnson, 127 F.3d 409, 41920 (5th Cir. 1997) (citing 28 U.S.C. § 2254 (b), (c)).
When considering a pure question of fact, the Court presumes
factual findings to be correct and defers to the state court’s
decision unless it “was based on an unreasonable determination of
the facts in light of the evidence presented in the state court
proceeding.” 28 U.S.C. § 2254(d)(2) – (e)(1) (requiring “clear and
convincing evidence” to rebut that presumption).
When considering a pure question of law or a mixed question
of fact and law, the Court defers to the state court’s decision
unless it was “contrary to, or involved an unreasonable application
of, clearly established federal law, as determined by the Supreme

8

Court

of

the

United

States.”

28

§

2254(d)(1).

Under

the

“unreasonable application” standard, the only question is “whether
the state court’s determination is objectively unreasonable.” Neal
v. Puckett, 286 F.3d 246 (5th Cir. 2002).
DISCUSSION
This memorandum addresses the following issues. First, the
State’s claim that five of Petitioner’s claims are in procedural
default. Second, Petitioner’s claims that the state trial court
erred when it denied his motion to quash, allowed other crimes
evidence into evidence, and denied his application for postconviction relief. Third, Petitioner’s claim that the State relied
on false testimony in order to secure his conviction. Fourth,
Petitioner’s claim that there was insufficient evidence to prove
his guilt. Finally, Petitioner’s claims of ineffective assistance
of counsel.
A. Procedural Default
The State contends that five of Petitioner’s claims are in
procedural default: that Petitioner was denied his right to a fair
trial when the state trial court allowed a correctional officer
from the parish jail where he was incarcerated to sit on the jury;
that Petitioner was denied his right to a fair trial when the state
trial court allowed pictures into jury deliberations that were not
related to the crime being tried and his counsel did not object;
that the State showed evidence to a witness before trial and had

9

her change her testimony; that Petitioner was denied a fair trial
when the state trial court denied him the right to present a
defense; and that the state trial court erroneously told the jury
during deliberations that the verdict had to be by a 10 to 2 vote.
On collateral review, the state trial court barred review of each
of these claims pursuant to Louisiana Code of Criminal Procedure
Articles 930.4(B) and (C) for failure to assert the claims in a
timely manner at trial or on appeal. The Louisiana Fifth Circuit
gave the same reasons, which were adopted by the Louisiana Supreme
Court. St. Rec. Vol 12 of 12, 5th Cir. Order, 15-KH-241, 5/21/15;
State ex rel. Harris v. State, 193 So. 3d 133 (La. 2016).
Federal courts will not review a question of federal law in
a habeas petition if the state court’s decision rests on a state
law ground that is “independent of the federal question and
adequate to support the judgment.” Coleman v. Thompson, 501 U.S.
722,

729

(1991).

petitioner’s

When

federal

a

claims

state

court

because

the

declines
petitioner

to

address

failed

to

comply with a state procedural requirement, the court’s judgment
“rests on independent and adequate state procedural grounds.” Id.
at 729-30; see also Cone v. Bell, 556 U.S. 449, 465 (2009). A
federal court can only review such a claim if the petitioner can
demonstrate “cause for the default and actual prejudice as a result
of the alleged violation of federal law” or that “failure to

10

consider the claims will result in a fundamental miscarriage of
justice.” Coleman, 501 U.S. at 750.
In order for a state law procedural rule to prevent review by
a federal court, the rule must be both independent and adequate.
Id. at 730-32. A procedural rule is “independent” when the state
court “clearly and expressly” indicates that it is independent of
federal law. Caldwell v. Mississippi, 472 U.S. 320, 327 (1985). A
procedural bar is “adequate” when it is strictly or regularly
followed and evenhandedly applied to the majority of similar cases.
Walker v. Martin, 562 U.S. 307, 316-17 (2011); Glover v. Cain, 128
F.3d 900, 902 (5th Cir. 1999).
The Louisiana Supreme Court gave the last reasoned decision
on this issue when it denied Petitioner’s application for postconviction

relief

under

Louisiana

Code

of

Criminal

Procedure

article 930.4, and adopted the state trial court’s reason for
denying post-conviction relief under Louisiana Code of Criminal
Procedure articles 930.4(B) and (C). State ex rel. Harris v. State,
193 So. 3d 133 (La. 2016).
Under Article 930.4(B), a court must deny relief when a habeas
application alleges a claim which petitioner had knowledge of and
failed to raise in the proceedings leading to the conviction. LA.
Code Crim. Proc. art 930.4(B). Under Article 930.4(C), a court
must deny relief when a habeas application alleges a claim that

11

petitioner raised in the trial court but inexcusably failed to
raise on appeal. LA. Code Crim. Proc. art 930.4(C).
Such rules are the precise rules meant to bar review by this
court because they set forth the state procedural requirements for
presenting post-conviction relief claims. See Fisher v. Texas, 169
F.3d 295, 300 (5th Cir. 1999) (noting that state courts’ clear
reliance on state procedural rules is determinative of the issue).
Accordingly, it would be improper to review Petitioner’s fourth,
fifth, seventh, eighth, and ninth claims. See Walker v. Warden
Louisiana State Penitentiary, 19 F.3d 15, 1994 WL 93289, at *1
(5th Cir. 1994).
A petitioner may be excepted from procedural default if he
can show cause for the procedural default and actual prejudice.
Coleman v. Thompson, 501 U.S. 722, 724 (1991). To establish cause
for a procedural default, the critical inquiry is whether the
petitioner can demonstrate that some objective factor external to
the defense hindered counsel’s efforts to follow the state’s
procedural rule. Murray v. Carrier, 477 U.S. 478, 488 (1986). The
mere fact that counsel failed to recognize the factual or legal
basis for a claim, or failed to raise the claim despite recognizing
it, does not establish cause for procedural default. Id. at 486.
Construed broadly, Petitioner argues that these claims were
not raised because his appellate counsel did not contact him and
he did not have the transcripts or knowledge to appeal. However,

12

Petitioner’s appellate counsel filed an appellate brief with the
Louisiana Fifth Circuit Court of Appeals, which did not raise these
claims. St. Rec. Vol. 9 of 12, Appeal Brief 2011-KA-0253, 4/20/11.
As discussed below, counsel’s discretion in deciding not to raise
certain claims is not error. See infra Part G. Additionally,
Petitioner also filed a pro se supplemental appellate brief with
the Louisiana Fifth Circuit Court of Appeals where he quoted and
referenced the record but did not raise these claims. St. Rec.
Vol. 9 of 12, Pro Se Supplemental Brief 2011-KA-0253, 7/27/11.
Accordingly, Petitioner has not offered any cause for the default
that would exclude the procedural bar imposed by the Louisiana
courts – the record neither supports any factor external to the
defense

prevented

Petitioner

from

raising

these

claims

procedurally properly, nor reflects any action or inaction by the
State that prevented his counsel or him from properly asserting
the claims in the state courts.
Failing to show “cause” is fatal to Petitioner’s invocation
of the “cause and prejudice” exception. Hogue v. Johnson, 131 F.3d
466, 497 (5th Cir. 1997) (citing Engle v. Isaac, 456 U.S. 107, 143
n.43 (1982)). Because Petitioner failed to show cause for his
default, this court does not need to determine whether prejudice
existed. Ratcliff v. Estelle, 597 F.2d 474, 477 (5th Cir. 1979)
(citing Lumpkin v. Ricketts, 551 F.2d 680, 681-82 (5th Cir. 1977).

13

Even if a petitioner cannot meet the cause and prejudice
standard, a federal court may review the merits of procedurally
defaulted claim if declining to hear the claims would constitute
a fundamental miscarriage of justice. Sawyer v. Whitley, 505 U.S.
333, 339 (1992). However, as the Supreme Court has emphasized,
this is a narrow exception to procedural default. Id. at 340. In
order

to

establish

a

fundamental

miscarriage

of

justice,

a

petitioner must show that under “probative evidence he has a
colorable claim of factual innocence.” Kuhlmann v. Wilson, 477
U.S. 436, 454 (1986). Under this standard, the petitioner must
demonstrate a fair probability that in light of all probative
evidence, the trier of fact would have entertained a reasonable
doubt as to his guilt. Id. at 454-54, n. 17.
Here, Petitioner offers no argument and the record contains
no

evidence

showing

factual

innocence

of

the

underlying

conviction. While Petitioner contends that the victim recalled the
rapes occurring on dates during which Petitioner was incarcerated
(Rec. Doc. 1, 17), the jury found that the rapes occurred on dates
during which Petitioner was not incarcerated. St. Rec. Vol. 1 of
12, Trial Minutes; Jury Verdict. Such determination is precisely
within the province of the jury and not for this court to disturb.
See Jackson v. Virginia, 443 U.S. 307, 319 (1979). Accordingly,
Petitioner has not overcome the procedural bar for review of the
following: Claim 4, 5, 7(a), 8, and 9(b).

14

B. Denial of Motion to Quash
Petitioner also argues that the state trial court erred when
it denied his motion to quash. Petitioner’s counsel moved to quash
the indictment on September 14, 2009, contending that the State
had exceeded the allowed time under state law to bring the case to
trial. The state trial court denied the motion on October 2, 2009,
finding that under Louisiana law, the delay was attributable to
four other pending criminal cases against Petitioner.
The Louisiana Fifth Circuit reviewed this issue on direct
appeal,

finding

that

when

Petitioner

filed

several

motions,

including motions to continue, it suspended the general rule that
trial must commence within two years from the date of institution
of prosecution. State v. Harris, 83 So.3d 269, 282-84 (La. App. 5
Cir. 12/28/11). Additionally, referencing to Louisiana Code of
Criminal Procedure article 578(A)(2), the court noted that trial
was scheduled within the proper time once the motions were resolved
or withdrawn. Id. at 284. That was the last reasoned opinion on
this issue.
To the extent that Petitioner requests that this court review
the propriety of the state courts’ denial of the motion to quash
under state law, “federal habeas corpus relief does not lie for
errors of state law.” Swarthout v. Cooke, 562 U.S. 216, 219 (2011)
(citation

omitted).

Accordingly,

this

court

will

only

review

Petitioner’s claim if he establishes that the state courts’ denial

15

of

the

motion

to

quash

amounted

to

a

violation

of

his

constitutional rights. Estelle v. McGuire, 503 U.S. 62, 68 (1991).
Here, construed broadly, Petitioner asserts a violation of his
right to speedy trial under the Sixth Amendment.
The Sixth Amendment guarantees every person accused of a crime
the right to a speedy trial. U.S. Const. amend. VI. Whether a
person has been deprived of that right is a mixed question of law
and fact. Amos v. Thorton, 646 F.3d 199, 201 (5th Cir. 2011).
Accordingly, in order to receive habeas relief, the state courts’
rejection of a speedy-trial claim must have been contrary to or an
unreasonable application of Supreme Court law. Id. Because of the
“somewhat indeterminate and fact-intensive nature of the speedy
trial right,” this court’s deference to state courts is “at an
apex” in reviewing its application of such law. Divers v. Cain,
698 F.3d 211, 217 (5th Cir. 2012) (internal quotations and citation
omitted). An inquiry into a speedy trial claim requires courts to
consider: (1) length of the delay; (2) reason for the delay; (3)
petitioner’s assertion of his right to speedy trial; and (4)
prejudice to the petitioner. Barker v. Wingo, 407 U.S. 514, 530,
533 (1972).
Under the first factor, the right to speedy trial begins at
the time of arrest or indictment, whichever is first. Amos, 646
F.3d at 206 (citing Dillingham v. United States, 423 U.S. 64, 65
(1975) (per curiam)). A delay between the arrest or indictment and

16

trial becomes “presumptively prejudicial” around the one-year
mark. See Goodrum v. Quarterman, 547 F.3d 249, 260 (5th Cir. 2008).
Here, the record shows that a grand jury indicted Petitioner on
September 9, 2004. St. Rec. Vol. 1 of 12, Grand Jury Return.
Ordinarily, the State would have two years to try Petitioner;
however, the State commenced trial on December 19, 2009, five years
after his indictment. Accordingly, Petitioner has made a threshold
showing of prejudicial delay, sufficient to trigger a full Barker
analysis. See Amos, 646 F.3d at 206. The first factor weighs in
favor of Petitioner.
Next, the reason for such delay is considered. Id. at 207. A
court gives different weight to different reasons, and “delays
explained by valid reasons or attributable to the conduct of the
defendant weigh in favor of the state.” Id. Here, as the state
trial court noted, Hurricane Katrina hit New Orleans on August 31,
2005,

eleven

months

after

a

grand

jury

indicted

Petitioner.

Louisiana courts have held repeatedly that the effects of Hurricane
Katrina on the criminal justice system were a circumstance beyond
control of the state. See, e.g., State v. Hamilton, 973 So.2d 110
(La. App. 4th Cir. 11/28/07). Accordingly, the delay to try
Petitioner within the time period specified by statute was delayed
by no fault of the State.
The

third

Barker

factor

examines

whether

the

defendant

“diligently asserted his speedy trial right.” United States v.

17

Parker, 505 F.3d 323, 329 (5th Cir. 2007). A motion to quash an
indictment constitutes an assertion of the right to a speedy trial.
Divers v. Cain, 698 F.3d 211, 219 (5th Cir. 2012) (citation
omitted).

However,

merely

asserting

this

right

will

not

automatically tilt this factor towards the petitioner because a
petitioner “who waits too long to assert his right will have his
silence weighed against him.” United States v. Molina-Solorio, 577
F.3d 300, 306 (5th Cir. 2009).
For example, in United States v. Parker, the United States
Court of Appeals for the Fifth Circuit held that when petitioner
waited fourteen months from the time of indictment to assert his
speedy trial right, that amount of time weighed against him. United
States

v.

Parker,

505

F.3d

323,

330

(5th

Cir.

2007).

Here,

Petitioner raised his speedy trial claim on the day he moved to
quash his indictment – September 14, 2009, which was three months
before the start of trial, which had been delayed and continued
for five years. Meaning, Petitioner waited almost the entire period
of the delay of which he complains to assert his speedy trial
issue. Such delay weighs against Petitioner. See Parker, 505 F.3d
at 330.
Finally, the fourth Barker factor examines the prejudice to
the petitioner because of the delay. Barker v. Wingo, 407 U.S.
514, 530 (1972). Typically, the petitioner carries the burden to
demonstrate actual prejudice; however, after reviewing the first

18

three factors, a court must decide whether the petitioner still
bears that burden or whether prejudice is presumed. See Amos v.
Thorton, 646 F.3d 199, 208 (5th Cir. 2011). Here, Petitioner has
not demonstrated that the above three factors warrant presumed
prejudice: while the delay was extended, a valid reason existed
for the delay and Petitioner did not diligently assert his speedy
trial right. Accordingly, in order for Petitioner to prevail on
his speedy trial claim, he must establish actual prejudice and
demonstrate

that

the

prejudice

adequately

exceeds

the

other

factors. United States v. Frye, 489 F.3d 201, 212 (5th Cir. 2007);
see also Amos, 646 F.3d at 208 n.42 (finding no presumption of
prejudice even when two of the three Barker factors weighed in
favor of petitioner).
Under Barker, in assessing prejudice, courts should consider
three

interests

pretrial

of

the

incarceration;

petitioner:
(2)

to

1)

minimize

to

prevent

anxiety

oppressive

and

concern

accompanying public accusation; and (3) to limit the possibility
that the defense will be impaired. Barker, 407 U.S. at 532. Of
those, the most significant prejudice is the petitioner’s ability
to prepare his case without limitation. Frye, 489 F.3d at 212
(citing Barker, 407 U.S. at 532).
Here, Petitioner states that there was ample time to bring
him to trial. However, such claim neither alleges any prejudice as
a result of the delay nor that the delay undercut the interests

19

meant to protect him from prejudice. Without more, Petitioner has
failed to establish actual prejudice. See, e.g., United States v.
Parker, 505 F.3d 323, 330 (5th Cir. 2008); Gray v. King, 724 F.2d
1199, 1204-05 (5th Cir. 1984).
Petitioner has not shown that the state courts’ denial of the
motion to quash his indictment was contrary to or an unreasonable
application of Supreme Court precedent. Accordingly, under the
Barker factors, Petitioner’s right to a speedy trial was not
violated.
C. Other Crimes Evidence
Petitioner next argues that the state trial court erred when
it allowed the State to introduce evidence from a past sexual
offense, of which Petitioner was acquitted, without instructing
the jury on what “acquittal” means. The state court ruled that the
testimony was admissible under Louisiana Code of Evidence article
412.2 as evidence of relevant and probative occurrence of the crime
and Petitioner’s lustful disposition towards children.1 The state
trial court applied the 403 balancing test, finding that there was

1

Louisiana Code of Evidence article 412.2(A) provides that certain evidence of
other sexually assaultive behavior may be admissible into evidence when an
accused is charged with acts constituting a sex offense with a victim who was
under the age of seventeen at the time offense, or acts indicating a lustful
disposition toward children. LA. Code Evid. art. 412.2(A). Such evidence may be
considered on any matter to which it is relevant, subject to the balancing test
in Article 403. Id.

20

no showing that the value of the evidence would be substantially
outweighed by the danger of unfair prejudice.2
Petitioner’s appointed counsel asserted this issue on direct
appeal, but the Louisiana Fifth Circuit concluded that the evidence
was properly admitted. The court also noted that the testimony
gave a chronology of the events leading up to M.B.’s coming forward
about the rape, and that the trial court’s limiting instruction
made clear that the jury could not convict Petitioner of this crime
merely because he may have committed a past crime.
To the extent that Petitioner argues that admitting the
evidence violated Louisiana law, that claim is unavailable on
federal habeas review. See Swarthout v. Cooke, 562 U.S. 216, 219
(2011). Federal courts do not review the propriety of state court
evidentiary hearings, unless the proceedings violate due process
such

that

the

violation

renders

the

criminal

proceeding

fundamentally unfair. Peters v. Whitley, 942 F.2d 937, 940 (5th
Cir. 1991). This issue presents a mixed question of law and fact.
Wilkerson v. Cain, 233 F.3d 886, 890 (5th Cir. 2010). Accordingly,
this court must determine if the state court’s admission of the
other acts evidence was contrary to or involved an unreasonable

2

Article 403 applies a balancing test to determine whether evidence should be
included or excluded: “[a]lthough relevant, evidence may be excluded if its
probative value is substantially outweighed by the danger of unfair prejudice,
confusion of the issues, or misleading the jury, or by considerations of undue
delay, or waste of time.” La. Code Evid. art. 403.

21

application

of

Supreme

Court

precedent

prohibiting

an

unfair

trial.3
A

state

court’s

evidentiary

decisions

do

not

create

cognizable habeas claims unless they conflict with a specific
constitutional right or render the trial fundamentally unfair. See
Johnson v. Puckett, 176 F.3d 809, 820 (5th Cir. 1999). Here,
admission of the other crimes evidence was consistent with the
Constitution. See Fed. R. Evid. 403, 413; United States v. Lewis,
796 F.3d 543, 547-48 (5th Cir. 2015) (finding no error when the
district court allowed into evidence uncharged sexual assaults
against minors under Rule 413 and balanced under Rule 403). The
probative value of other sexual acts with L.C., another child,
outweighed the potential prejudice. The evidence was relevant to
show lustful disposition towards children, outline the chronology
of both incidents, and relate the similarity of both incidents.
Furthermore, the potential for unfair prejudice was diminished by
L.C.’s clear testimony that she did not identify Petitioner at her
trial, that Petitioner was acquitted at L.C.’s trial, and the trial
court’s instruction that the jurors could not find guilt based on
the

other

sexual

offense.

See

3

Lewis,

796

F.3d

at

547-48.

In State v. Williams, the Louisiana Supreme Court likened Article 412.2 of
Louisiana’s Code of Evidence to Rule 413 of the Federal Rules of Evidence,
noting that the former was enacted in order to lower the obstacles for admitting
“propensity evidence” in sexual assault cases, especially those involving
children. 830 So.2d 984, 984-86 (La. 2002). Importantly, both state and federal
evidence rules are subject to the balancing test weighing probative value
against prejudicial effect. United States v. Dillon, 532 F.3d 379, 387 (5th
Cir. 2008).

22

Accordingly, Petitioner has not demonstrated that the other crimes
evidence was inadmissible or rendered his trial fundamentally
unfair.
Petitioner also argues that the state trial court erred when
it failed to instruct the jury on the meaning of “acquittal” in
connection

to

Petitioner’s
acquittal,

L.C.’s

counsel

which

was

testimony.

requested

a

considered

Before
charge

by

the

L.C.

on
trial

the

testified,
meaning

court

but

of
not

ultimately included in the jury instructions. In its opinion, the
Louisiana Fifth Circuit held that the trial court’s failure to
read a special jury charge constitutes reversible error only when
it causes prejudice to the constitutional or statutory rights of
the accused. (citing State v. Davis, 768 So.2d 201, 211 (La. App.
5th Cir. 2000) (writ denied, 795 So.2d 1205 (La. 2001))).

The

court found no prejudice resulted from not reading the requested
charge because L.C. testified at Petitioner’s trial that he was
found not guilty. Additionally, the court noted that when counsel
addresses the matter in closing arguments, like defense counsel
did here, Louisiana law does not require a special instruction per
Davis.
Generally,

improper

jury

instructions

in

state

criminal

trials do not form the grounds for habeas relief. See Estelle v.
McGuire, 502 U.S. 62, 71-72 (1991). This court does not inquire
into whether state law was violated, but rather whether the failure

23

to give an instruction “by itself so infected the entire trial
that the resulting conviction violates due process.” Galvan v.
Cockrell, 293 F.3d 760, 765 (5th Cir. 2002) (citing Cupp v.
Naughten, 414 U.S. 141, 147 (1977)) (internal quotation omitted).
The burden of proof is on the petitioner to show that an error
resulting

in

a

constitutional

violation

occurred.

Cupp

v.

Naughten, 414 U.S. 141, 146 (1973). Here, the Louisiana courts
held that the state trial court did not err when it did not include
Petitioner’s requested charge to the jury.
Nor has Petitioner demonstrated any violation of his due
process rights. As noted by the state courts, the jury heard during
testimony and closing arguments that Petitioner was acquitted or
found not guilty of the prior sex offense involving L.C. Nothing
in the record suggests that the jury was confused about the meaning
of “acquittal” or misunderstood the significance of the acquittal.
Accordingly, Petitioner has not established prejudice or violation
of his due process rights. See, e.g. Bryan v. Wainwright, 588 F.2d
1108, 1111-12 (5th Cir. 1979) (finding no constitutional error
when

jury

instruction

did

not

define

or

explain

the

phrase

“depraved mind” and noting such term was not a complex legal term
that the jury would not understand). Petitioner is not entitled to
federal habeas relief on these claims.

24

D. Review of Post-Conviction Application
Petitioner argues that the state trial court erred when it
denied his application for post-conviction relief because he did
not have the trial record when he filed his application, which is
why he could not meet his burden of proof. Petitioner asserted
this claim in the Louisiana Fifth Circuit Court and the Louisiana
Supreme Court, but neither court expressly addressed this issue
when denying his writ applications.
However, it is settled that “infirmities in the state [habeas]
proceedings do not constitute grounds for relief in federal court”
because an attack on the state habeas proceedings is “an attack on
a proceeding collateral to the detention and not the detention
itself.” Rudd v. Johnson, 256 F.3d 317, 319-20 (5th Cir. 2001)
(citations omitted). Here, Petitioner challenges not having the
trial

court

record

when

he

filed

his

post-conviction

relief

application, but such challenge merely attacks infirmities in the
state habeas proceeding, which is foreclosed by precedent. See
Rudd, 256 F.3d at 320. Petitioner is not entitled to federal habeas
relief on this claim.4
E. False Testimony
Petitioner argues that the State relied on false testimony
from an alleged prior victim in order to secure his conviction. On

4

Petitioner also argues that he did not have the trial record when he filed
his petitioner. However, based on his references to the record, it appears that
Petitioner had access to it during his post-conviction application.

25

direct appeal, the Louisiana Fifth Circuit held that the testimony
in question was clear and consistent with prior statements and
testimony.
A criminal defendant’s due process rights are violated when
the State knowingly uses false or misleading evidence at trial.
Giglio v. United States, 405 U.S. 150, 153-54 (1972). In order to
establish such violation, a petitioner must show (1) the evidence
was false, (2) the evidence was material, and (3) the State knew
the evidence was false. Duncan v. Cockrell, 70 F. App’x 741, 744
(5th Cir. 2003) (citation omitted). False evidence is “material”
only if there is a reasonable likelihood that it could have
affected the jury’s verdict. Id. A claim that the State knowingly
used perjured testimony at trial presents a mixed question of law
and fact. Fairman v. Anderson, 188 F.3d 635, 640 (5th Cir. 1999).
Accordingly, this court must determine whether the state courts’
ruling was contrary to or an unreasonable application of federal
law.
The state courts concluded that L.C.’s testimony was both
clear and consistent, including her concession that she had not
been able to identify Petitioner at her trial because she felt
uncomfortable.

Here,

Petitioner

does

not

argue

what

specific

testimony by L.C. was false. To the extent that Petitioner argues
that L.C. lied about him raping her merely because he was acquitted
of that crime, his claim is unavailing. The Supreme Court has held

26

that “an acquittal on criminal charges does not prove that the
defendant is innocent.” United States v. One Assortment of 89
Firearms,

465

U.S.

354,

361

(1984).

Instead,

an

acquittal

acknowledges that “the government failed to prove an essential
element of the offense beyond a reasonable doubt.” State v. Watts,
519 U.S. 148, 155 (1997). Importantly, at M.B.’s trial, L.C.
disclosed to the jury that she failed to identify Petitioner as
the rapist during her trial, but that during M.B.’s trial she felt
comfortable enough to identify Petitioner in person as the man who
raped her.
Based on the record found by the state courts and this record,
Petitioner has not established that L.C. falsely testified or that
the State suborned perjury through her testimony. The denial of
relief on this issue was not contrary to or an unreasonable
application

of

federal

law.

Accordingly,

Petitioner

is

not

entitled to federal habeas relief on this claim.
F. Sufficient Date of Crime Evidence
Petitioner argues that there was insufficient evidence to
prove his guilt because the victim testified at trial that the
rapes occurred on a date when Petitioner was incarcerated. However,
the victim previously stated during an interview with a Child’s
Advocacy Center representative that the rapes occurred on a date
when Petitioner was not incarcerated. The jury knew about both
statements.

27

Petitioner argued this claim on direct appeal; however, the
Louisiana Fifth Circuit found it meritless. That court determined
that the jury had sufficient evidence to resolve any credibility
issues or conflicting testimony in favor of M.B.’s testimony that
the rapes occurred at a time when Petitioner was not incarcerated.
This is the last reasoned opinion on this issue. State v. Harris,
83 So.3d 269 (La. App. 5 Cir. 12/28/11).
On review of whether evidence was sufficient to support a
criminal conviction, a court will affirm the conviction if “any
rational trier of fact could have found the essential elements of
the crime beyond a reasonable double.” Jackson v. Virginia, 443
U.S. 307, 320 (1979) (emphasis in original) (citation omitted).
Such determination is made after reviewing the evidence in the
light most favorable to the prosecution. Id.
Courts

apply

this

standard

by

reviewing

the

substantive

elements of the crime as defined by state law. Perez v. Cain, 529
F.3d 588, 594 (5th Cir. 2008) (citing Jackson 443 U.S. at 324 n.
16). Such review includes all of the evidence admitted at trial,
which must be considered as a whole under Jackson. See McDaniel v.
Brown, 558 U.S. 120, 131, 134 (2010). However, such review does
not include the weight of the evidence or the credibility of the
witnesses, as those determinations are exclusively within the
province of the jury. United States v. Young, 107 F. App’x 442,
443 (5th Cir. 2004); see Jackson, 443 U.S. at 319 (noting that the

28

jury’s responsibility is “to resolve conflicts in the testimony,
to

weigh

the

evidence,

and

to

draw

reasonable

inference.”).

Accordingly, all credibility choices and conflicting inferences
must be resolved in favor of the verdict. Ramirez v. Dretke, 398
F.3d 691, 695 (5th Cir. 2005). A claim of insufficient evidence
presents a mixed question of law and fact. Perez v. Cain, 529 F.3d
588, 594 (5th Cir. 2008). Accordingly, this court must examine
whether the state courts’ denial of relief was contrary to or an
unreasonable application of United States Supreme Court precedent.
Petitioner was convicted of forcible rape of M.B., a minor.5
In order to convict Petitioner, the State had to prove beyond a
reasonable doubt that he committed: (1) an act of oral sexual
intercourse, (2) without the lawful consent of M.B., and that (3)
M.B. was prevented from resisting the act by force or threats of
physical

violence

under

circumstances

in

which

he

reasonably

believed that such resistance would not prevent the rape. See State
v. Fruge, 34 So.3d 422, 425 (La. App. 3d Cir. 4/7/10).
M.B. recalled the rape taking place in April 2004. St. Rec.
Vol.

8

of

12,

Trial

Transcript

5

12/17/09

at

1078.

On

cross-

At the time of the crime, Louisiana law defined rape as the act of oral sexual
intercourse with a male committed without the person’s lawful consent, and
forcible rape as rape committed when the oral sexual intercourse is deemed to
be without the lawful consent of the victim because it is committed when the
victim is prevented from resisting the act by force or threats of physical
violence under circumstances where the victim reasonably believes that such
resistance would not prevent the rape. See LA. R.S. §14:41(A); LA. R.S.
§14:42.1. Oral sexual intercourse is the intentional engaging in the touching
of the anus or genitals of the offender by the victim using the mouth or tongue
of the victim. See LA. R.S. §14:41(C)(2).

29

examination, M.B. recalled the events occurring on April 1 and 2,
2004 because, as a child, April Fool’s Day was a favorite day. St.
Rec. Vol. 8 of 12, Trial Transcript 12/17/09 at 1087. M.B. also
stated that he did not remember telling anyone that the events
occurred the night before Harris was arrested for a separate
incident with a neighbor. St. Rec. Vol. 8 of 12, Trial Transcript
12/17/09 at 1089. After M.B. testified, defense counsel offered
documentation and stipulation with the State that Petitioner was
incarcerated in Orleans Paris Prison from March 31, 2004 through
April 3, 2004. St. Rec. Vol. 8 of 12, Trial Transcript 12/17/09 at
1120-1125.
During closing arguments, the State asked the jury to consider
M.B.’s earlier recollection of when the events occurred, reminding
the jury that during his videotaped interview with the Children’s
Advocacy Center, about a month after the events, M.B. told the
interviewer that the events occurred after Easter, which was on
April 11, 2004. St. Rec. Vol. 8 of 12, Trial Transcript 12/17/09
at 1188-91.

The State urged the jury to consider M.B.’s earlier

recollection of when the incidents occurred. St. Rec. Vol. 8 of
12, Trial Transcript 12/17/09 at 1188-91.
When the jury convicted Petitioner of forcibly raping M.B.,
it apparently accepted M’B’s earlier recollection of when the
events

occurred,

Petitioner

was

determining
released

that
from

30

the

events

prison.

occurred

That

after

credibility

determination is within the province of the jury and is supported
by the record; it is not for this court to disturb. See United
States v. Salazar, 183 F. App’x 462, 463-64 (5th Cir. 2006).
Accordingly, Petitioner has not established that denial of relief
on this issue was contrary to or an unreasonable application of
federal law. Petitioner is not entitled to federal habeas relief
on this claim.
G. Effective Assistance of Counsel
Petitioner asserts multiple ineffective assistance of counsel
claims. In Strickland v. Washington, the Supreme Court established
a two-part test for evaluating claims of ineffective assistance of
counsel. First, the defendant must demonstrate that “counsel’s
representation

fell

below

an

objective

standard

of

reasonableness.” Strickland v. Washington, 466 U.S. 668, 687-88
(1984). Under this prong and on habeas review, the proper inquiry
is

whether

an

attorney’s

representation

would

be

considered

incompetent under prevailing professional norms. Harrington v.
Richter, 562 U.S. 86, 105 (2011). Second, the defendant must prove
“a reasonable probability that, but for counsel’s unprofessional
errors, the result of the proceeding would have been different.”
Strickland, 466 U.S. at 694. A reasonable probability is “a
probability

sufficient

to

undermine

outcome.” Id.

31

the

confidence

in

the

Under

Strickland,

there

is

a

strong

presumption

that

counsel’s conduct “falls within the wide range of reasonable
professional assistance” so that deference is given to counsel’s
performance.

466

U.S.

at

689.

In

assessing

an

attorney’s

performance, a federal habeas court must make every effort “to
eliminate the distorting effects of hindsight, to reconstruct the
circumstances of counsel’s challenged conduct, and to evaluate the
counsel’s perspective at the time.” Id. Tactical decisions, when
supported by the circumstances, are “objectively reasonable, and
therefore [do] not amount to deficient performance.” Rector v.
Johnson, 120 F.3d 551, 564 (5th Cir. 1997).
1. Object to Pictures in Jury Deliberations
Petitioner

first

claims

that

his

trial

counsel

was

ineffective when he failed to object to certain pictures being
taken into jury deliberations, including those related to evidence
of past acts. Considered broadly, Petitioner contends that the
evidence

related

to

L.C.

was

not

admissible

and

was

unduly

prejudicial to his defense. Under Louisiana Code of Criminal
Procedure “[u]pon the request of a juror and in the discretion of
the court, the jury make take with it or have sent to it any object
or document received in evidence” when the jury requires it in
order to arrive at a verdict. La. Code Crim. Proc. art. 793(A);
see, e.g., State v. Thibodeaux, 216 So.3d 73, 86 (La. App. 3d Cir.
3/15/17) (holding a trial court did not err when it allowed the

32

jury to examine autopsy photographs during jury deliberations
because “the trial court is permitted to allow jurors to view any
object

received

in

evidence,

including

photographs,

during

deliberations.” (citing LA. CODE CRIM. PROC. art 793(A); State v.
Davis, 637 So.2d 1012, 1025 (La. 1994)). Here, the record reflects
that the photographs the jury received were in evidence from trial,
which authorized the trial judge to send the photographs to the
jury during deliberation upon request under Louisiana law.
Petitioner has provided no legal reason for his counsel to
have objected to the trial judge allowing the photographs to be
sent to the jury after it requested them, and counsel is not
ineffective for failing to assert a meritless objection. See
Johnson v. Cockrell, 306 F.3d 249, 255 (5th Cir. 2002); Smith v.
Puckett, 907 F.2d 581, 585 n.6 (5th Cir. 1990) (“Counsel is not
deficient for, and prejudice does not issue from, failure to raise
a legally meritless claim.”). The denial of relief on this claim
was not contrary to or an unreasonable application of Supreme Court
law. Accordingly, Petitioner is not entitled to federal habeas
relief on this claim.
2. Object to a Modified Allen Charge
Petitioner

next

claims

that

he

was

denied

effective

assistance of counsel when his attorney failed to object to a
“modified Allen charge” when the state trial judge stated that the
verdict had to be by a 10 to 2 vote. In Allen v. United States,

33

the Supreme Court approved a charge designed to break a jury
deadlock and accomplish jury unanimity. 164 U.S. 492 (1896). The
Louisiana Supreme Court has held that a judge may not use an Allen
charge in response to notice that the jury has failed to reach a
verdict and considers itself deadlocked. State v. Nicholson, 315
So.2d 639 (La. 1975). However, when a jury has not reached an
impasse in their decisions, a judge may make a general inquiry
into the status of a verdict and simply remind the jury that in
order to reach a verdict, ten of the twelve must agree on a
decision. See State v. Schamburge, 344 So.2d 997, 1001 (La. 1977).
Here, the jury sent a note to the trial judge stating, “What
happens if we can only agree on a nine to three vote?” St. Rec.
Vol. 9 of 12, Trial Transcript (continued) 12/17/09 at 1281. The
judge responded by written note that “[t]en of [t]welve jurors
must concur to reach a verdict in this case.” St. Rec. Vol. 9 of
12, Trial Transcript (continued) 12/17/09 at 1283. The jury did
not declare to the state trial court a deadlock, and the court
reiterated to the jury through the instruction that the law
required a total of 10 to 2 votes. Under Louisiana law, the court’s
response

was

not

prohibited.

Schamburge,

344

So.2d

at

1001.

Accordingly, Petitioner’s counsel had no legal basis to object and
was not ineffective for failing to do so. Petitioner is not
entitled to federal habeas relief on this claim.

34

3. Conflict with Counsel
Petitioner claims that he was denied effective assistance of
counsel because of his conflict with counsel. On post-conviction
review, the state courts denied such relief, noting that Petitioner
had identified no particular conflict between counsel and him. As
stated by the Court of Appeals for the Fifth Circuit, “[m]ere
conclusory

allegations

in

support

of

a

claim

of

ineffective

assistance of counsel are insufficient to raise a constitutional
issue.” Green v. Johnson, 160 F.3d 1029, 1042 (5th Cir. 1998).
Here, Petitioner alleges that a conflict existed between him and
his trial counsel without offering any detailed support. Without
more, Petitioner’s argument is nothing more than a bare assertion,
which is insufficient to raise a constitutional issue. See United
States v. Holmes, 406 F.3d 337, 361 (5th Cir. 2005); Green, 160
F.3d at 1042.
4. Failure to Call Witnesses
Petitioner also alleges, for the first time in this court,
that his trial counsel was ineffective because he failed to call
witnesses to establish that Petitioner was incarcerated when the
crime

allegedly

occurred.

However,

Petitioner’s

counsel

and

prosecutors entered into a stipulation, agreeing that the Orleans
Parish Prison records indicated that Petitioner was incarcerated
in that facility from March 31, 2004 through April 3, 2004. St.
Rec. Vol. 8 of 12, Trial Transcript 12/17/09 at 1120-1125. In light

35

of that stipulation, Petitioner’s counsel did not need to call any
witnesses to establish his incarceration dates as fact before the
jury. Additionally, the state trial court instructed the jury about
the meaning of the stipulation agreement and that no further proof
of Petitioner’s incarceration dates was required. Petitioner is
not entitled to federal habeas relief on this claim.
5. Failure to Raise Issues on Appeal
Petitioner claims that his appointed appellate counsel was
ineffective. The Strickland standard for judging performance of
counsel also applies to ineffective appellate counsel. Smith v.
Robbins, 528 U.S. 259, 285 (2000). In order to prevail on a claim
that appellate counsel was ineffective, a petitioner must show
that his appellate counsel unreasonably failed to discover and
assert a non-frivolous issue, as well as establish a reasonable
probability that he would have prevailed on this issue but for his
counsel’s deficient representation. Robbins, 528 U.S. at 285-86.
To be effective appellate counsel, the law does not require
counsel to assert every non-frivolous argument on appeal, but
instead only those arguments that are more likely to succeed. See
Davila v. Davis, 137 S. Ct. 2058, 2067 (2017). Accordingly, only
when appellate counsel ignores issues which are clearly stronger
than those presented will petitioner overcome the presumption of
effective counsel. See Kossie v. Thaler, 423 F. App’x 434, 437
(5th Cir. 2011) (citing Robbins, 528 U.S. at 288).

36

Here, Petitioner focuses on three claims that he contends his
counsel should have asserted on direct appeal. First, Petitioner
argues that his counsel should have asserted Petitioner’s actual
innocence

because

the

victim

stated

the

rapes

occurred

when

Petitioner was incarcerated. As discussed above, at trial the
victim testified that he remembered the rapes occurring around
April Fool’s Day, but the evidence also demonstrated that the
victim reported to an interviewer that the rapes occurred after
Easter.

Ultimately,

the

jury

is

responsible

for

reconciling

evidence, including the dates on which the rapes occurred to the
extent necessary to reach a verdict. In light of all the evidence,
Petitioner’s counsel had no reason to pursue this claim. Moreover,
when the Louisiana Fifth Circuit denied the same claim, asserted
pro se by Petitioner on direct appeal, it illustrated that success
would

have

been

unlikely

had

it

been

raised

by

counsel.

Accordingly, Petitioner has not met his burden under Strickland on
this claim.
Second,

Petitioner

argues

that

his

counsel

should

have

asserted that the State relied on false testimony from L.C. The
Louisiana Fifth Circuit, on direct appeal, addressed the propriety
of L.C.’s testimony and found that it was neither speculative nor
unclear, but that instead, it was relevant to the resolution of
the case. Petitioner has not established that there was a non-

37

frivolous argument for his appellate counsel to make. Accordingly,
Petitioner has not met his burden under Strickland on this claim.
Finally, Petitioner argues that his appellate counsel should
have asserted that it was error for pictures to be provided to the
jury during deliberations. As discussed above, under Louisiana
law, the state trial court did not err in allowing the jury to
view pictures that were already in evidence during deliberations
under Louisiana Code of Criminal Procedure article 793(A) so that
there was no basis for trial counsel to object. Petitioner has not
established

that

there

was

a

non-frivolous

argument

for

his

appellate counsel to make. Accordingly, Petitioner has not met his
burden under Strickland on this claim.
New Orleans, Louisiana this 21st day of November 2017.

___________________________________
SENIOR UNITED STATES DISTRICT JUDGE

38