Miller v. Hooper

Filing 28

ORDER AND REASONS: ADOPTING REPORT AND RECOMMENDATIONS 24 . IT IS ORDERED that Miller's petition is DISMISSED WITH PREJUDICE. The Court will not issue a certificate of appealability. Signed by Judge Sarah S. Vance on 11/13/2023.(cs)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
COREY MILLER

CIVIL ACTION

VERSUS

NO. 21-1413

TIMOTHY HOOPER, WARDEN

SECTION “R” (4)

ORDER AND REASONS
Petitioner Corey Miller filed this federal petition for habeas corpus
relief under 28 U.S.C. § 2254.1 Miller’s petition was referred to Magistrate
Judge Karen Wells Roby for a Report and Recommendation (“R&R”).
Magistrate Judge Roby recommended that the petition be denied and
dismissed with prejudice as meritless.2 Miller filed objections to Magistrate
Judge Roby’s R&R.3
The Court has reviewed de novo the petition, the record, the applicable
law, the Magistrate Judge’s R&R, and Miller’s objections. For the following
reasons, the Court overrules the objections, and dismisses the petition.4

1
2
3
4

R. Doc. 1.
R. Doc. 24.
R. Doc. 25.
The Court reaches its decision without the need for oral argument, as
requested by Miller. R. Doc. 26-1.

I.

DISCUSSION
The Court applies de novo review to the parts of the R&R to which

petitioner objected. 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b)(3). The
Court is limited to plain-error review of any part of the R&R not subject to a
proper objection. Starns v. Andrews, 524 F.3d 612, 617 (5th Cir. 2008).
Miller does not object to the Magistrate Judge’s finding that he cannot
demonstrate that the state courts’ rejection of his ineffective assistance of
counsel claim was contrary to or an unreasonable application of the standard
set forth in Strickland v. Washington, 466 U.S. 668 (1984), or any other
Supreme Court precedent.5 As to this finding, the Court finds no clear error.
The Court therefore adopts this section of the R&R as its opinion.
The Court considers and addresses each of Miller’s objections to the
R&R under a de novo standard below. See Hernandez v. Estelle, 711 F.2d
619, 620 (5th Cir. 1983) (holding that de novo determination requires “the
district court to arrive at its own, independent conclusion about those
portions of the magistrate’s report to which objection is made[, which] is not
satisfied by a mere review of the magistrate’s report itself”); United States v.

5

R. Doc. 25 at 18-19. While Miller does not object to the Magistrate
Judge’s findings regarding his ineffective assistance of counsel claim,
he asserts that he reserves the right to argue any excuse to procedural
issues based on this claim if and when it becomes relevant. Id. at 19.
2

Raddatz, 447 U.S. 667, 676 (1980) (holding that de novo determination
“permit[s] whatever reliance a district judge, in the exercise of sound judicial
discretion, [chooses] to place on a magistrate’s proposed findings and
recommendations”).

A.

Actual Innocence

Miller’s first objection to the R&R is that his claim of actual innocence
is cognizable and provides a ground for relief.6 As an initial matter, the Court
finds that Magistrate Judge Roby correctly examined Miller’s actual
innocence claim de novo.7 Miller first raised an actual innocence claim in his
state application for post-conviction relief.8 The state trial court dismissed
this claim as procedurally barred because an actual innocence claim not
based on DNA evidence was not a cognizable ground for relief under
Louisiana Code of Criminal Procedure article 930.3.9 The Louisiana Fifth
Circuit affirmed the trial court’s procedural dismissal of the actual innocence
claim,10 and Miller filed a writ application with the Louisiana Supreme Court

6
7
8
9
10

Id. at 4.
R. Doc. 24 at 21-22.
St. Rec. Vol. 72 of 91, Initial Application for Post-Conviction Relief,
2/19/2014.
St. Rec. Vol. 86 of 91, Trial Court Order, 8/26/2015.
Id., Fifth Circuit Order, 15-KH-679, 12/29/2015.
3

on this claim.11 On October 28, 2016, the Louisiana Supreme Court declined
to consider the writ, finding that it was untimely filed. See generally State
v. Miller, 203 So. 3d 218 (La. 2016). The claim therefore was not exhausted
or adjudicated on the merits in the state court proceedings.
It is well settled that a petitioner must exhaust state court remedies
before seeking habeas corpus review in the federal courts. See Nobles v.
Johnson, 127 F.3d 409, 419-20 (5th Cir. 1997) (citing 28 U.S.C.
§ 2254(b), (c)). When, as here, the petitioner files a “mixed petition” with
both exhausted and unexhausted claims, the Court may elect to stay the
proceedings or dismiss the petition without prejudice to require complete
exhaustion. See Rhines v. Weber, 544 U.S. 269, 278 (2005); Pliler v. Ford,
542 U.S. 225, 227 (2004); Whitehead v. Johnson, 157 F.3d 384, 387 (5th Cir.
1998). Alternatively, the Court may deny an unexhausted or mixed petition
on the merits, notwithstanding the petitioner’s failure to exhaust the
remedies available in state court. 28 U.S.C. § 2254(b)(2). When reviewing
the merits of claims that were unexhausted or denied by state courts on
procedural grounds, the Court must review the claims de novo, rather than
under the Antiterrorism and Effective Death Penalty Act of 1996’s

11

St. Rec. Vol. 88 of 91, La. S. Ct. Writ Application, 2016-KP-0207,
1/29/2016.
4

(“AEDPA”) deferential standard of review. See Russell v. Denmark, 68 F.4th
252, 271 (5th Cir. 2023) (concluding that when a state court does not evaluate
a claim on the merits, “AEDPA’s usual deferential standard of review would
not apply; a reviewing federal court instead would ‘review such claims de
novo.’” (quoting Carty v. Thaler, 583 F.3d 244, 253 (5th Cir. 2009))); Miller
v. Johnson, 200 F.3d 274, 281 n.4 (5th Cir. 2000) (“Review is de novo when
there has been no clear adjudication on the merits.”); see also Berghuis v.
Thompkins, 560 U.S. 370, 390 (2010) (“Courts can . . . deny writs of habeas
corpus under § 2254 by engaging in de novo review when it is unclear
whether AEDPA deference applies, because a habeas petitioner will not be
entitled to a writ of habeas corpus if his or her claim is rejected on de novo
review, see § 2254(a).”). Here, Magistrate Judge Roby opted to address the
merits of Miller’s actual innocence claim under de novo review despite the
procedural shortcomings of his petition. This Court agrees, and likewise
proceeds de novo to the merits of this claim.
In doing so, the Court finds that Miller’s freestanding actual innocence
claim is not cognizable in a federal habeas petition. While the United States
Supreme Court “has not resolved whether a prisoner may be entitled to
habeas relief based on a freestanding actual-innocence claim,” McQuiggin v.
Perkins, 569 U.S. 383, 392 (2013) (citation omitted), the Fifth Circuit has
5

held that it “does not recognize freestanding claims of actual innocence on
federal habeas review.”12 In re Swearingen, 556 F.3d 344, 348 (5th Cir.
2009) (per curiam) (citation omitted), cited with approval in In re Fields,
No. 23-90016, 2023 WL 4044417, at *1 (5th Cir. June 16, 2023); see also
Graves v. Cockrell, 351 F.3d 143, 151 (5th Cir. 2003) (“The Fifth Circuit has
. . . held that claims of actual innocence are not cognizable on federal habeas
review.”). Absent Fifth Circuit or Supreme Court precedent to the contrary,
the Court finds that Miller’s actual innocence claim is meritless.

B.

Recantation Affidavits
1.

Background

In his last amended state court application for post-conviction relief,
Miller presented two recantation affidavits from Darnell Jordan (“Darnell”)
and Kenneth Jordan (“Kenneth”),13 respectively, in support of his claims

12

13

Although an actual innocence claim may serve as “a gateway through
which a habeas petitioner must pass to have his otherwise barred
constitutional claim considered on the merits,” Schlup v. Delo, 513 U.S.
298, 315 (1995), procedural default is not at issue here. Miller’s claim
and objections pertain only to the merits of his freestanding actual
innocence claim.
The Court will refer to Darnell and Kenneth by their first names
because of the shared last name.
6

under Brady and Napue.14 Darnell worked as a security employee at the club
where the shooting took place and was on duty on the night of the incident.
Several minutes after the shooting, Darnell told Detective Kevin Nichols of
the Jefferson Parish Sheriff’s Office (“JPSO”) that Miller was the shooter.
State v. Miller, 83 So. 3d 178, 183 (La. App. 5 Cir. 2011). Darnell explained
at trial that he knew and trusted Detective Nichols, who worked as a detail
officer for the club. Id. Later that same evening, Darnell provided additional
details to other investigators, but he did not name Miller as the shooter as he
had done with Detective Nichols. Id. Darnell would later testify that he
denied knowing who the shooter was because he feared retaliation. Id.
Following the shooting, Darnell allegedly received a phone call from one of
the club’s owners and was told something that caused him to be concerned
for his life and afraid of Miller. Id. Darnell then decided to meet with
investigators and provide a statement identifying Miller as the shooter. Id.
In an interview with Detective Donald Clogher on January 17, 2002, five days
after the murder, Darnell identified Miller from a photographic lineup as the
shooter.15 Darnell also testified at both of Miller’s trials that he was about
one yard away when he witnessed Miller reach his hand into a group of

14
15

See generally Brady v. Maryland, 373 U.S. 83 (1963); Napue v. People
of State of Ill., 360 U.S. 264 (1959).
St. Rec. Vol. 86 of 91, Darnell Jordan’s Statement, 1/17/2002.
7

people attacking the victim and saw what he assumed to be a gun flash from
the end of Miller’s arm. Id.
Kenneth likewise testified that he was at the club on the night of the
shooting, and that he observed Miller shoot the victim. Id. at 184. Kenneth
first identified Miller as the shooter in 2003 when he was interviewed as a
material witness regarding the death of his infant daughter. Id. At the time,
Kenneth told detectives that he wanted to tell the truth because he knew how
it felt to lose a child. Id. Kenneth then provided a statement to Detective
Clogher in which he said he saw Miller shoot the victim.16 Kenneth also
identified Miller in court and testified that he was positive that Miller shot
the victim. Id.
In 2018, almost nine years after Miller’s second trial,17 both men
submitted affidavits recanting their earlier testimony. Darnell asserted in
his affidavit that he was “certain that Corey Miller did not shoot [the
victim].”18 Darnell stated that he told detectives on the night of the murder

16
17

18

Id., Kenneth Jordan’s Statement, 1/27/2003.
The verdict in Miller’s first trial was overturned after the trial court
granted a motion for a new trial, which the Louisiana Supreme Court
affirmed. Miller’s second jury trial began on August 3, 2009, and the
jury found Miller guilty as charged on August 11, 2009. On August 14,
2009, Miller was sentenced to life imprisonment, without benefit of
parole, probation, or suspension of sentence.
St. Rec. Vol. 83 of 91, Darnell Jordan’s Affidavit, at 1, 6/28/2018.
8

that Miller was not the shooter.19 Darnell allegedly told the detectives that
he pulled Miller out of the fight and saw that Miller did not have anything in
his hands or in his waistband.20 He also alleged that he saw the flash from
the gun come from the other side of the group from where Miller stood.21 As
for his statement to Detective Clogher identifying Miller from a photographic
lineup as the shooter, Darnell claimed that he was “tricked” by the detective
because he believed that he had simply been asked to identify Miller, not the
shooter.22 Darnell also asserted that he had recanted his statement to
Detective Clogher before Miller’s first trial.23 Detective Clogher allegedly
visited Darnell in his hotel room before the trial and handed Darnell a copy
of his 2002 statement, at which point Darnell indicated that this was “not
what [he] said.”24 Furthermore, Darnell claimed that when he stated at trial
that he “was sure,” he intended to communicate that he was sure Miller was
not the shooter.25

19
20
21
22
23
24
25

Id. at 2.
Id. at 3.
Id.
Id.
Id. at 5.
Id.
Darnell stated in his affidavit: “When I said on the stand that ‘I was
sure[,]’ I meant I was sure [Miller] didn’t do it.” Id. at 5. The Court is
unable to locate any portion of Darnell’s testimony during Miller’s
second trial during which he stated that he “was sure.” His affidavit
may be referring to his affirmative answer when asked by the State
9

Similarly, Kenneth’s affidavit asserted that the man he saw shoot the
victim was not Miller.26 He alleged that he was coerced to falsely identify
Miller as the shooter in a “fabricated statement” following his “arrest” for the
murder of his daughter in 2003. According to Kenneth, JPSO officers offered
him leniency in his criminal case if he cooperated and gave a statement
identifying Miller.27 Kenneth alleged that he told the officers that “he saw
the shooter and the shooter was not Corey Miller,” but that “the officers
pressured [him] to lie and say it was Corey Miller, all the while holding
criminal charges over [his] head.”28 Kenneth further alleged that he later
told JPSO officers before Miller’s second trial that his 2003 statement
identifying Miller as the shooter was not true, but that “the officers forced
him to testify anyway.”29
Based on these affidavits, Miller urged the state court to find both
Brady and Napue violations.30 Miller contends that the State failed to

26
27
28
29
30

whether he was “absolutely sure that the flash that [he] saw from [the]
gun came from the end of [Miller’s] arm,” to which Darnell responded
“yes.” St. Rec. Vol. 14 of 91, Darnell Jordan’s Testimony, at 227,
8/5/2005.
St. Rec. Vol. 83 of 91, Kenneth Jordan’s Affidavit, 6/23/2018.
Id.
Id.
Id.
Id., Second Supplemental and Amended Memorandum in Support of
Initial Application for Post-Conviction Relief, 7/2/2018.
10

disclose that Darnell and Kenneth had retracted their statements and
testimony before his trial in violation of his rights under Brady v. Maryland,
373 U.S. 83 (1963). The Napue violations allegedly occurred when police
separately coerced Darnell and Kenneth into testifying falsely that Miller was
the shooter. See Napue v. People of State of Ill., 360 U.S. 264 (1959). In its
opposition, the State submitted the affidavits of four prosecutors who tried
Miller’s case and of Detective Clogher to rebut the recantation affidavits of
Darnell and Kenneth.31 The prosecutors each stated that at no time had they
been told by either Darnell or Kenneth that their statements were not true or
that they had ever recanted their testimony.32 The prosecutors also stated
that they had “never threatened, pressured or coerced any witnesses into
testifying.”33

The affidavit of Detective Clogher similarly denied the

allegations contained in Darnell’s and Kenneth’s recantation affidavits.34
Detective Clogher asserted that he “did not intimidate, coerce or otherwise
force Darnell to make any statement,” and that “Darnell never told him that
it was not Corey Miller who shot the victim” at the club.35 The detective

31
32
33
34
35

St. Rec. Vol. 86 of 91, at 601-05, Memorandum in Opposition,
9/21/2018.
Id. at 602-05.
Id.
Id. at 601.
Id.
11

further stated that, to the best of his knowledge, neither he nor anyone in the
JPSO office had offered Kenneth leniency to implicate Miller or put any
pressure on Kenneth to identify Miller as the shooter.36 In response, Miller
requested that the state trial court hold an evidentiary hearing to weigh the
credibility of the State’s affidavits.37

i.

State trial court determinations

On January 23, 2019, the trial court found Miller’s claims based on the
recantation affidavits meritless.38 The court determined that Darnell’s and
Kenneth’s affidavits were “suspect and not reliable,” and did not give rise to
Brady or Napue violations. As to Darnell, the state trial court found several
inconsistencies between his recantation affidavit and trial testimony. For
instance, when asked at trial “who killed [the victim],” Darnell unequivocally
identified Miller.39 Darnell also maintained that he had no doubt that Miller
was the person who shot and killed the victim, and that the flash that he saw

36
37
38
39

Id.
St. Rec. Vol. 69 of 91, Rebuttal to State’s Opposition, 12/5/2018.
Id., Trial Court Order, 1/23/2019.
At Miller’s first trial, when asked by the State, “Who killed Steve
Thomas?,” Darnell responded: “Corey Miller.” St. Rec. Vol. 53 of 91,
Darnell Jordan’s Testimony, at 36, 9/18/2003. When asked the same
question at Miller’s second trial, Darnell responded: “C-Murder,”
identifying Miller by his rap moniker. St. Rec. Vol. 14 of 91, Darnell
Jordan’s Testimony, at 227, 8/5/2005.
12

from the gun came from Miller’s hand.40 At Miller’s second trial, Darnell
stated that he identified Miller from the photographic lineup in 2002
because “[h]e was the killer.”41 Darnell reiterated that he identified Miller as
the shooter in 2002 voluntarily, and that Detective Clogher did not force him
to identify Miller or in any way threaten him.42 Moreover, the state court
noted that Darnell testified consistently before the grand jury and at both
trials that Miller was the shooter.43 Darnell also testified at both trials that
on the night of the murder he immediately identified Miller as the gunman
to Detective Nichols,44 which Detective Nichols corroborated.45 As the trial
court recognized, Darnell’s admission to Detective Nichols occurred before
“having had any contact with any investigators and/or prosecutors,” and
thus contradicts Miller’s Napue claim that Darnell was coerced or “tricked
into testifying as he did.”46 And while Darnell denied to several other

40

41
42
43
44

45
46

St. Rec. Vol. 14 of 91, Darnell Jordan’s Testimony, at 227, 249,
8/5/2005; St. Rec. Vol. 13 of 91, Darnell Jordan’s Testimony, at 203,
8/5/2005; St. Rec. Vol. 53 of 91, Darnell Jordan’s Testimony, at 34-36,
9/18/2003.
St. Rec. Vol. 14 of 91, Darnell Jordan’s Testimony, at 220, 8/5/2005.
Id.
Id.
St. Rec. Vol. 53 of 91, Darnell Jordan’s Testimony, at 36-37,
9/18/2003; St. Rec. Vol. 13 of 91, Darnell Jordan’s Testimony, at 208,
8/5/2005.
St. Rec. Vol. 14 of 91, Darnell Jordan’s Testimony, at 260, 8/5/2005.
St. Rec. Vol. 69 of 91, Trial Court Order, 1/23/2019.
13

investigators that Miller was the shooter, the court recognized that Darnell’s
inconsistent statements were “presented to the jury” at trial and refuted by
Darnell’s testimony.47 Darnell specifically testified that he failed to identify
Miller as the shooter out of fear for retaliation from Miller “and his clique.”48
Darnell further stated that he was now testifying truthfully that Miller was
the shooter, and that he had not been forced, pressured, or coerced to testify
against Miller.49 Based on these inconsistencies and established testimony,
the court found no evidence of a Napue violation.
Additionally, the court rejected Miller’s assertion that the State
withheld Brady evidence that Darnell had recanted his statement to
Detective Clogher before Miller’s first trial when he allegedly denied having
said what was contained in his 2002 statement.50 The court determined that
“the record refute[d] this claim, as well as the affidavits of [Detective]
Clogher and the prosecutors.”51 Darnell consistently testified at both trials
that he was truthfully identifying Miller as the shooter,52 and he denied that

47
48
49
50

51
52

Id.
St. Rec. Vol. 14 of 91, Darnell Jordan’s Testimony, at 212, 8/5/2005.
Id. at 224, 247, 250.
St. Rec. Vol. 83 of 91, Darnell Jordan’s Affidavit, at 1, 6/28/2018
(stating that when Detective Clogher handed him a copy of his 2002
statement, he told the detective, “that’s not what I said.”).
St. Rec. Vol. 69 of 91, Trial Court Order, 1/23/2019.
See, e.g., St. Rec. Vol. 13 of 91, Darnell Jordan’s Testimony, at 203,
8/5/2005 (responding that he had “no doubt” when asked whether he
14

Detective Clogher had forced him to tell the jury that Miller was the shooter
during Miller’s first trial.53 Darnell also testified at Miller’s second trial about
what he told the detectives on January 17, 2022, including that he told them
that Miller murdered the victim.54

When asked about his statement

identifying Miller from the photographic lineup, Darnell testified that he
recognized the document and his signature on it, and that he had selected
Miller from the lineup because Miller was the person who shot the victim.55
Darnell never denied the content of or having made his 2002 statement
during either trial; rather, his testimony substantiated what he told
detectives on January 17. Based on this testimony in the record, along with
Detective Clogher’s affidavit denying that Darnell ever recanted his
statement before Miller’s trial, the state court found no evidence of a Brady
violation.56 The court therefore concluded that “[a]s to the recantation of

53
54
55
56

had “any doubt in [his] mind that” the flash from the gun came from
Miller’s hand and whether he had “any doubt in [his] mind that
[Miller] shot [the victim]”); St. Rec. Vol. 13 of 91, Darnell Jordan’s
Testimony, at 249, 8/5/2005 (responding that he had “no doubt” when
asked whether he had “[a]ny doubt in [his] mind that [Miller] was the
man that shot [the victim].”); St. Rec. Vol. 53 of 91, Darnell Jordan’s
Testimony, at 36, 9/18/2003 (identifying “Corey Miller” when asked
by the State, “Who killed Steve Thomas?”).
St. Rec. Vol. 53 of 91, Darnell Jordan’s Testimony, at 38, 9/18/2003.
St. Rec. Vol. 14 of 91, Darnell Jordan’s Testimony, at 218, 8/5/2005.
Id. at 219-20.
St. Rec. Vol. 86 of 91, at 601, Memorandum in Opposition, 9/21/2018.
15

Darnell Jordan, in considering all evidence including the record, all
transcribed trial and grand jury testimony and affidavits, [Miller] is not
entitled to relief.”57
As to Kenneth, the state court determined that his affidavit was
factually erroneous because he was never arrested or facing charges for his
daughter’s murder.58 This is substantiated by the record, including the
investigative report for the case involving the murder of Kenneth’s daughter,
which does not list Kenneth as one of the three individuals arrested in the
case.59 Moreover, Kenneth himself agreed during his 2003 interview with
Detective Clogher that he was making his statement after he “came to the
sheriff’s office voluntarily” as a cooperative witness in his daughter’s murder
case,60 and he testified at Miller’s trial that he had not been arrested in
connection with that case.61 Assistant District Attorney Tim McElroy, who
was involved in the case concerning the death of Kenneth’s daughter,
likewise testified that on the date that Kenneth gave his statement to

57
58
59
60
61

St. Rec. Vol. 69 of 91, Trial Court Order, 1/23/2019.
Id.
R. Doc. 1-3 at 44-58.
St. Rec. Vol. 86 of 91, Kenneth Jordan’s Statement, 1/27/2003
(emphasis added).
St. Rec. Vol. 15 of 91, Kenneth Jordan’s Testimony, at 181-82,
8/6/2009.
16

Detective Clogher in 2003, Kenneth was being “interviewed as a witness” in
his daughter’s case, and was not being treated as a suspect or under arrest.62
The court also found that McElroy’s trial testimony refuted Kenneth’s
allegation that JPSO officers offered him leniency in his daughter’s murder
case in exchange for implicating Miller as the shooter.63 McElroy testified at
Miller’s second trial that Kenneth had not received any deal from the sheriff’s
office, and that there was no reason for him to be offered a deal.64 He further
stated that in his review of the case involving Kenneth’s daughter, he found
no evidence of a deal made with Kenneth in exchange for Kenneth to testify
in Miller’s case.65 Indeed, the only offer of immunity made to Kenneth, which
was filed into the trial record, was offered by the State, not the sheriff’s
office,66 and related to his testimony in his daughter’s murder case, not

62
63
64
65

66

Id., Tim McElroy’s Testimony, at 49.
St. Rec. Vol. 69 of 91, Trial Court Order, 1/23/2019.
St. Rec. Vol. 15 of 91, Tim McElroy’s Testimony, at 47, 50, 8/7/2009.
Id. at 58. McElroy’s testimony directly refuted that of Kenneth, who
agreed when asked on cross-examination that he felt as though he had
to talk to detectives about the murder involving Miller if he did not
want to get charged with carnal knowledge of a juvenile. Id., Kenneth
Jordan’s Testimony, at 209-10.
Kenneth agreed during his trial testimony that it was not an officer who
offered him the deal of immunity, which further contradicts his
recantation affidavit’s claim that he was offered leniency by JPSO
officers. See id. at 193.
17

Miller’s case.67

Thus, the state court concluded that Kenneth’s “claim

regarding immunity was presented [to the jury] at trial and refuted by . . .
McElroy’s testimony.”68 This was further supported by the post-conviction
affidavit of Detective Clogher, who averred that neither he nor anyone in the
JPSO office had offered Kenneth leniency to implicate Miller or put any
pressure on Kenneth to identify Miller as the shooter in 2003.69 Moreover,
by the time Kenneth testified in 2009, he had no pending charges against
him or offers of immunity that could have induced him to testify against

67

68
69

Id., Tim McElroy’s Testimony, at 52-66. According to McElroy,
Kenneth had impregnated the mother of his child when she was a
minor and he was an adult, making him responsible for carnal
knowledge of a juvenile, which McElroy explained is a criminal offense
for “having sex with consent of the child.” Id. at 51. McElroy further
explained that because he found that Kenneth had committed the
crime of carnal knowledge, he could not call him to the stand to testify
in good faith, as this would expose Kenneth to possible criminal
charges. Id. Based on this criminal exposure, the state court
overseeing the infant murder case granted a motion to compel
Kenneth’s testimony in that case, in which Kenneth was given a grant
of immunity that promised that he would not be prosecuted for the
carnal knowledge charge. Id. at 52-54, 60-69. Kenneth also
acknowledged this immunity deal in his testimony when he agreed that
he was “offered immunity for the carnal knowledge for [his] testimony”
in the case of his daughter’s murder. Id., Kenneth Jordan’s Testimony,
at 189.
St. Rec. Vol. 69 of 91, Trial Court Order, 1/23/2019.
St. Rec. Vol. 86 of 91, at 601, Memorandum in Opposition, 9/21/2018.
18

Miller,70 and he stated that he had nothing to gain from his testimony.71
Accordingly, the trial court concluded that Miller’s claim that Kenneth “was
coerced into lying . . . [was] not even supported by Kenneth Jordan’s
affidavit” or the record, and was “purely speculative.”72
The trial court also rejected Miller’s Brady claim based on Kenneth’s
allegation that he told JPSO officers that his 2003 statement was false.73
First, the court found this allegation to be contrary to the record. Kenneth
testified at Miller’s second trial that his 2003 statement was the truth.
Kenneth also testified that he spoke with Greg Thurman from the sheriff’s
office before Miller’s trial, and that he told Thurman that he “would come
and testify and give [his] testimony and tell the truth.”74 He did not indicate
during his testimony that he attempted to recant his 2003 statement to
Thurman or anyone else in the sheriff’s office. Second, the court found the
allegation to be vague and conclusory because Kenneth did not indicate
whom he told or when the statement was made.75 After finding Kenneth’s

70
71

72
73
74
75

St. Rec. Vol. 15 of 91, Kenneth Jordan’s Testimony, at 220, 8/6/2009.
On re-direct by the State, Kenneth testified that he had nothing to gain
from his testimony and did not have any pending charges “over [his]
head” at the time of trial. Id.
St. Rec. Vol. 69 of 91, Trial Court Order, 1/23/2019.
Id.
St. Rec. Vol. 15 of 91, Kenneth Jordan’s Testimony, at 195, 8/6/2009.
St. Rec. Vol. 69 of 91, Trial Court Order, 1/23/2019.
19

recantation “completely unsupported and refuted by the record in this case
and by the witness’s testimony,” the trial court concluded that the claim
“must fail” when “viewed in light of the law’s disdain towards recantations.”76
The court reached these determinations without holding an evidentiary
hearing.

ii.

Writ applications

Miller’s counsel then filed a writ application with the Louisiana Fifth
Circuit, asserting that the trial court erred in summarily denying his postconviction application and amended application and in denying his request
for an evidentiary hearing.77 The Louisiana Fifth Circuit determined that
Miller’s writ application was untimely filed, but it nevertheless addressed the
merits of Miller’s arguments, finding that the trial court did not abuse its
discretion in denying the claims without an evidentiary hearing.78
Specifically, the court determined that the trial court was able to resolve the
factual and legal issues presented by the recantation affidavits and determine
the merits of Miller’s claims without a hearing based on the “volume of

76
77
78

Id.
St. Rec. Vol. 85 of 91, Fifth Circuit Writ Application, 20-KH-322
(undated).
St. Rec. Vol. 84 of 91, Fifth Circuit Order, 20-KH-322, 12/11/2020.
20

existing information contained in the record from which the trial court could
draw upon.”79 The court further stated that the trial court did not err in its
conclusion that Miller failed to sufficiently prove his Brady and Napue
claims based on the recantation affidavits.80 The Louisiana Supreme Court
denied writ, finding that Miller failed to show that the State withheld
material exculpatory evidence under Brady. State ex rel. Miller v. State, 325
So. 3d 370 (La. 2021).

2.

Lack of State Court Evidentiary Hearing

In his federal habeas petition, Miller again argues that the state trial
court erred in dismissing his claims without an evidentiary hearing.81 But
this contention is without merit as “[i]t is well-settled that ‘infirmities in state
habeas proceedings do not constitute grounds for federal habeas relief.’”
Henderson v. Cockrell, 333 F.3d 592, 606 (5th Cir. 2003) (quoting DuffSmith v. Collins, 973 F.2d 1175, 1182 (5th Cir. 1992)). The Fifth Circuit has
repeatedly held that a petitioner’s attack on a state habeas proceeding,
including the state courts’ failure to hold an evidentiary hearing, does not
impact the validity of the underlying state criminal conviction, which is the

79
80
81

Id.
Id.
R. Doc. 1-1 at 14, 16-17.
21

focus of federal habeas relief. See Trevino v. Johnson, 168 F.3d 173, 180 (5th
Cir. 1999); see also Rudd v. Johnson, 256 F.3d 317, 319-20 (5th Cir. 2001)
(“[A]n attack on the state habeas proceeding is an attack on a proceeding
collateral to the detention and not the detention itself.”); Tercero v.
Stephens, 738 F.3d 141, 147 (5th Cir. 2013) (holding that allegation that state
habeas court failed to hold an evidentiary hearing on petitioner’s Roper
claim did not furnish an independent basis for federal habeas corpus relief).
Thus, the state trial court’s denial of an evidentiary hearing on Miller’s Brady
and Napue claims is not a cognizable claim on federal review.
Moreover, although the state courts did not hold an evidentiary
hearing, the state trial court entered findings of fact, conclusions of law, and
a recommendation that habeas relief be denied.82 The trial court recognized
that it was able to resolve the “factual and legal issues” presented by the
recantation affidavits “without further proceedings” by drawing upon the
Miller’s “application and answer, and supporting documents” in the record.83
And based on those determinations, the Louisiana Fifth Circuit84 and
Louisiana Supreme Court denied Miller’s writ applications. See generally
State ex rel. Miller, 325 So. 3d 370 (La. 2021).

82
83
84

This constitutes an

St. Rec. Vol. 69 of 91, Trial Court Order, 1/23/2019.
Id.
St. Rec. Vol. 84 of 91, Fifth Circuit Order, 20-KH-322, 12/11/2020.
22

adjudication on the merits and exhaustion of Miller’s Brady and Napue
claims, and thus the AEDPA’s standard of review applies. See Singleton v.
Johnson, 178 F.3d 381, 384 (5th Cir. 1999); Hill v. Johnson, 210 F.3d 481,
485 (5th Cir. 2000).

3.

Deference under § 2254(e)(1)

AEDPA affords substantial deference to a state court’s resolution of
factual issues. See Brumfield v. Cain, 576 U.S. 305, 313 (2015); see also
Miller-El v. Cockrell, 537 U.S. 322, 340 (2003) (“A federal court’s collateral
review of a state-court decision must be consistent with the respect due state
courts in our federal system.”). Claims that present questions of fact are
reviewed under 28 U.S.C. §§ 2254(d)(2) and (e)(1). This involves a “two-step
approach,” in which “a federal court reviewing a case [first] applies
[§ 2254(e)(1)]’s rebuttable presumption of correctness to each disputed
factual determination by the state court.” Neal v. Vannoy, 78 F.4th 775, 783
(5th Cir. 2023). Under § 2254(e)(1), a federal habeas court must presume
the state court’s underlying factual determinations, including credibility
determinations, to be correct, unless the petitioner rebuts the presumption
of correctness by clear and convincing evidence. Miller-El, 537 U.S. at 340;
see also Hall v. Quarterman, 534 F.3d 365, 371 n.22 (5th Cir. 2008) (“State
23

credibility determinations also receive AEDPA deference on habeas review,
but not when overcome by clear and convincing evidence.”); Richards v.
Quarterman, 566 F.3d 553, 563 (5th Cir. 2009) (holding that state court
credibility determinations are entitled to presumption of correctness under
§ 2254(e)(1)). This presumption of correctness “is especially strong when, as
here, the state habeas court and the trial court are one and the same.”
Murphy v. Johnson, 205 F.3d 809, 813 (5th Cir. 2000). It extends not only
to express factual findings, but also to implicit or unarticulated findings that
are necessary to the state court’s conclusions of mixed law and fact. Murphy
v. Davis, 901 F.3d 578, 597 (5th Cir. 2018).
“Then, in reviewing the state court’s decision, the [federal habeas]
court considers the entire factual basis and utilizes the reasonableness
standard from [§ 2254(d)(2)] to assess, ultimately, whether the second
exception to AEDPA’s relitigation bar has been satisfied.” Neal, 78 F.4th at
783. Section 2254(d)(2) provides that “a decision adjudicated on the merits
in a state court and based on a factual determination will not be overturned
on factual grounds unless objectively unreasonable in light of the evidence
presented in the state-court proceeding.” Miller-El, 537 U.S. at 340; see also
Neal, 78 F.4th at 783 (“Ultimately, to clear the required threshold, the
petitioner must show ‘a reasonable factfinder must conclude’ the state
24

court’s determination of the facts was unreasonable.” (quoting Rice v.
Collins, 546 U.S. 333, 335 (2006))).
Here, Magistrate Judge Roby applied this deferential standard and
presumption of correctness to the state trial court’s factual determinations
concerning the recantation affidavits.

Miller objects to the Magistrate

Judge’s application of the presumption of correctness to the state court’s
credibility findings under 28 U.S.C. § 2254(e)(1), arguing that because the
trial court did not hold an evidentiary hearing on his Brady and Napue
claims, it, in effect, did not make findings of fact concerning the recantation
affidavits.85
The Fifth Circuit has recognized that a state court’s reliance on a paper
record without live testimony does not preclude the application of AEDPA
deference and the presumption of correctness attached to its factual findings.
See, e.g., Morrow v. Dretke, 367 F.3d 309, 315 (5th Cir. 2004) (holding that
AEDPA requires courts “to presume correct the state court’s findings of fact
. . . even if the hearing was a ‘paper’ hearing and may not have been full and
fair,” unless petitioner rebuts presumption of correctness by clear and
convincing evidence (citation and internal quotation marks omitted));
Valdez v. Cockrell, 274 F.3d 941, 951 (5th Cir. 2001) (holding that

85

R. Doc. 25 at 8.
25

presumption of correctness and deferential standard of review apply to state
court’s findings of fact even when reached without “full and fair” evidentiary
hearing). And it is not the province of a federal court to reevaluate the
credibility of affidavits, even if the state court reached its credibility
determinations without a hearing. See Avila v. Quarterman, 560 F.3d 299,
307 (5th Cir. 2009) (holding that federal district court improperly reevaluated state court’s credibility determination based on an evaluation of
conflicting affidavits); Morales v. Thaler, 714 F.3d 295, 303 (5th Cir. 2013)
(“AEDPA does not allow federal habeas courts to gainsay state courts’
assessments of credibility on a cold paper record.”). Here, the state court
made findings of fact and determinations of credibility that the recantation
affidavits were “suspect and not reliable,” based on inconsistencies and
established falsities,86 and thus failed to support Miller’s Brady and Napue
claims.87 These determinations are entitled to a rebuttable presumption of
correctness under § 2254(e)(1), regardless of the state court’s decision not to
hold an evidentiary hearing. See Valdez, 274 F.3d at 951. The presumption
applies to all of the state court’s factual findings, including its credibility
determinations on Darnell’s and Kenneth’s affidavits.

86
87

See supra Section I.B.1.i.
St. Rec. Vol. 69 of 91, Trial Court Order, at 3, 1/23/2019.
26

Accordingly, this Court will apply the rebuttable presumption of
correctness under § 2254(e)(1) in evaluating the state trial court’s
determinations of the credibility of the recantation affidavits. Because this
Court is not entitled to supplant the factual determinations of the state court,
which were reached based on “the volume of existing information contained
in the record,”88 it will evaluate Miller’s claim without holding an evidentiary
hearing.89 See Avila, 560 F.3d at 307; Morales, 714 F.3d at 303; see also
Cullen v. Pinholster, 563 U.S. 170, 183 (2011) (“[W]hen the state-court
record ‘precludes habeas relief’ under the limitations of § 2254(d), a district

88
89

St. Rec. Vol. 84 of 91, Fifth Circuit Order, 20-KH-322, 12/11/2020.
A district court may hold an evidentiary hearing only when the
petitioner shows that either the claim relies on a new, retroactive rule
of constitutional law that was previously unavailable, 28 U.S.C.
§ 2254(e)(2)(A)(i), or the claim relies on a factual basis that could not
have been previously discovered by exercise of due diligence, id.
§ 2254(e)(2)(A)(ii); and that the facts underlying the claim show by
clear and convincing evidence that, but for the constitutional error, no
reasonable jury would have convicted the petitioner.
Id.
§ 2254(e)(2)(B). Miller contends that the record reveals a genuine
dispute as to the alleged facts in the recantation affidavits, thus
warranting a federal evidentiary hearing to reach credibility
determinations not previously reached by the state trial court. As
discussed, the state court made credibility and factual determinations
based on the extensive record and adjudicated Miller’s Brady and
Napue claims on the merits despite not holding an evidentiary hearing;
thus, an evidentiary hearing will not aid this Court in its review. See
Sandoval Mendoza v. Lumpkin, 81 F.4th 461, 472 (5th Cir. 2023).
27

court is ‘not required to hold an evidentiary hearing.’” (quoting Schriro v.
Landrigan, 550 U.S. 465, 474 (2007))).

4.

Miller’s Failure to Overcome Presumption

As noted, Miller must overcome the presumption of correctness
afforded under § 2254(e)(1) by clear and convincing evidence that the state
court’s factual findings, including its credibility determinations, were
incorrect. See Miller-El, 537 U.S. at 330-31. Miller attempts to do so by
objecting to the state trial court’s treatment of the recantation affidavits with
suspicion, arguing that this skepticism is an unreasonable and
fundamentally unfair approach to making factual determinations.90
Magistrate Judge Roby correctly noted that both federal and Louisiana
law recognize a long-standing view that “recantations are highly
suspicious.”91 Isaac v. Cain, 588 F. App’x 318, 326 (5th Cir. 2014) (citations
omitted); see also Spence v. Johnson, 80 F.3d 989, 1003 (5th Cir. 1996)
(“[R]ecanting affidavits and witnesses are viewed with extreme suspicion by
the courts.”); Neal, 78 F.4th at 788-89 (affirming Spence and noting that
“recantation is viewed with suspicion because it is tantamount to an

90
91

R. Doc. 25 at 10-11.
R. Doc. 24 at 64.
28

admission of perjury”); State v. Prudholm, 446 So. 2d 729, 736 (La. 1984)
(“[R]ecantations are highly suspicious and, except in rare circumstances, a
motion for new trial should not be grated on the basis of a recantation since
that disclaimer is tantamount to admission of perjury so as to discredit the
witness at a later trial.”). That the state trial court treated the affidavits with
suspicion, without more, does not amount to clear and convincing evidence
that the court’s findings were incorrect.

This objection is therefore

overruled.
Further, Magistrate Judge Roby was correct in finding no clear and
convincing evidence that the state court’s discrediting of the affidavits as
unreliable was wrong on the facts or the law. The state trial court found
contradictions and falsities in both Darnell’s and Kenneth’s affidavits,92
which led the court to conclude that the affidavits were not credible and
unreliable to serve as proof that Brady and Napue violations occurred.93 For
example, the state trial court found Darnell’s affidavit not credible in light of
his consistent identification of Miller as the shooter, first when he
volunteered this information to Detective Nichols on the night of the murder,
and again before the grand jury and at both trials. As the trial court

92
93

See supra Section I.B.1.i.
St. Rec. Vol. 69 of 91, Trial Court Order, at 3, 1/23/2019.
29

recognized, Darnell’s statement to Detective Nichols, which Nichols
corroborated at trial, occurred before Darnell “had any contact with other
investigators and/or prosecutors,” and thus rebutted Miller’s “claim that
Darnell Jordan was tricked into testifying as he did.”94 The court also relied
on a number of inconsistencies between Darnell’s trial testimony and
recantation affidavit. For instance, while Darnell alleged in his affidavit that
he was tricked into identifying Miller as the killer from the photographic
lineup when he thought he was simply identifying Miller in a picture, the trial
court pointed out that he testified at trial that he “picked [Miller] from the
line-up and identified him as the shooter.”95 Indeed, when asked by the State
at Miller’s second trial why he had selected the photo of Miller from the
lineup, Darnell responded: “He was the killer.”96 Darnell also alleged in his
affidavit that the flash from the gun came from the other side of the pile
surrounding the victim, but at trial he testified that he saw the flash from the
gun come from Miller’s hand.97 And while Darnell alleged in his affidavit

94
95
96
97

Id.
Id.
St. Rec. Vol. 14 of 91, Darnell Jordan’s Testimony, at 220, 8/5/2005.
Id. at 227, 249; St. Rec. Vol. 13 of 91, Darnell Jordan’s Testimony, at
203, 8/5/2005; St. Rec. Vol. 53 of 91, Darnell Jordan’s Testimony, at
34-36, 9/18/2003.
30

that he meant to say at trial that he “was sure” Miller was not the shooter,98
this was refuted by his testimony at both trials during which he unequivocally
named Miller when asked who shot the victim.99 Further, the court found
Darnell’s claim that he had recanted his 2002 statement to Detective Clogher
before Miller’s trial to be refuted by Darnell’s trial testimony and Detective
Clogher’s post-conviction affidavit. Based on the inconsistencies between
Darnell’s affidavit and the record evidence, the court concluded that the
affidavit was not credible, and was “suspect and not reliable” as Brady or
Napue evidence.100
Moreover, the court found Kenneth’s affidavit not credible because it
contained established falsities and contradictions with his trial testimony
and 2003 statement. First, although Kenneth claimed to have been “arrested
for the murder of [his] infant daughter,”101 this was refuted by both Kenneth’s

98

99
100
101

Darnell stated: “When I said on the stand that ‘I was sure’ I meant I
was sure [Miller] didn’t do it.” St. Rec. Vol. 83 of 91, Darnell Jordan’s
Affidavit, 6/28/2018.
St. Rec. Vol. 53 of 91, Darnell Jordan’s Testimony, at 36, 9/18/2003;
St. Rec. Vol. 14 of 91, Darnell Jordan’s Testimony, at 227, 8/5/2005.
St. Rec. Vol. 69 of 91, Trial Court Order, 1/23/2019.
St. Rec. Vol. 83 of 91, Kenneth Jordan’s Affidavit, 6/23/2018.
31

and McElroy’s trial testimony,102 as well as other evidence in the record.103
Second, Kenneth claimed that JPSO officers offered him “leniency in [his]
criminal case if [he] agreed to cooperate and give [ ] a statement implicating
Corey Miller in the shooting.”104 This issue was raised during Miller’s second
trial and rebutted by McElroy’s testimony that no such offer had been
made.105 It was further rebutted by the post-conviction affidavit of Detective
Coghler, who stated that neither he nor “anyone in the Sheriff’s Office to his
knowledge offered [Kenneth] any kind of leniency to cooperate and give a
statement implicating” Miller.106 The court also found that the record, which
included Kenneth’s testimony that he had not been coerced or otherwise
induced to testify against Miller and that his 2003 statement was true, as well
as the post-conviction affidavits from Detective Clogher and the prosecutors,
made the claims in his recantation affidavit not credible. The court further

102

103
104
105
106

St. Rec. Vol. 15 of 91, Kenneth Jordan’s Testimony, at 181-82,
8/6/2009 (testifying that he was interviewed as a witness in his
daughter’s murder case and was not arrested on that charge); id., Tim
McElroy’s Testimony, at 49 (testifying that the JPSO “interviewed
[Kenneth] as a witness” in his daughter’s case, and Kenneth was not
being treated as a suspect or under arrest).
See, e.g., R. Doc. 1-3 at 44-58 (Investigative report of JPSO Criminal
Investigations Bureau Homicide Division).
St. Rec. Vol. 83 of 91, Kenneth Jordan’s Affidavit, 6/23/2018.
St. Rec. Vol. 15 of 91, Tim McElroy’s Testimony, at 47, 50, 58,
8/7/2009.
St. Rec. Vol. 86 of 91, Donald Clogher’s Affidavit, at 601, 9/19/2018.
32

determined that Kenneth’s allegation regarding his purported pre-trial
recantation to Detective Clogher to be both vague and conclusory because
Kenneth did not indicate whom he told or when the statement was made.107
These falsities, discrepancies, and conclusory allegations led the court to find
Kenneth’s recantation both suspect and unreliable.108 As the recantation
affidavits were the only proof offered in support of Miller’s Brady and Napue
violations, the court accordingly found that Miller had not proved his Brady
or Napue claims.
Now, in support of his federal habeas claim based on Brady and
Napue, Miller again has presented no other evidence beyond the two
recantation affidavits of Darnell and Kenneth, which he contends warrants a
reevaluation of the state courts’ credibility determinations. But the trial
court’s factual and credibility findings resolved that these affidavits were
suspect and not reliable and, thus, provided no basis to credit the
recantations, to establish that the affiants’ trial testimony was false, or to
establish impropriety by state officials in inducing their respective trial
testimony. And as previously discussed, it is not the province of this federal
habeas court to make credibility determinations when previously reached by

107
108

St. Rec. Vol. 69 of 91, Trial Court Order, 1/23/2019.
Id.
33

the state trial court. Rather, it is Miller’s burden to put forth clear and
convincing evidence of error in the state courts’ findings of fact, which he has
failed to do. Without meeting this high burden, the factual and credibility
determinations are entitled to the presumption of correctness under
§ 2254(e)(1) in assessing the reasonableness of the denial of relief on Miller’s
Brady and Napue claims.

Accordingly, the Court finds that Miller’s

objection based on the state courts’ treatment of the recantation affidavits
with suspicion and the application of the AEDPA’s presumption of
correctness to the credibility determinations is without merit.
After finding the presumption of correctness applicable to the state
court’s factual and credibility determinations, the Magistrate Judge applied
AEDPA’s standard of review under § 2254(d)(1) to evaluate the merits of
Miller’s Brady and Napue claims. This standard requires the Court to decide
whether the state court’s Brady or Napue determination resulted in a
decision that is contrary to, or involved an unreasonable application of,
clearly established federal law. Miller-El, 537 U.S. at 340; Neal, 78 F.4th at
783. The Magistrate Judge concluded that it had not, and thus that the state
courts’ denial of relief was not unreasonable as neither claim was factually
supported.109 Miller did not object to this portion of the R&R. Having

109

See R. Doc. 24 at 66-71.
34

reviewed this portion of the R&R, the Court finds no clear error. The Court
therefore adopts this section of the R&R as its opinion. Miller is not entitled
to federal habeas relief on this claim.

5.

Miller’s Suspension Clause Objection

Miller also argues, without citation to authority, that this federal
habeas court’s denial of an evidentiary hearing out of deference to the state
courts’ credibility determinations, made without an evidentiary hearing,
implicates the Suspension Clause, U.S. Const. art. I, § 9, cl. 2.110 At least one
federal court has considered, and rejected, the argument Miller seemingly
makes here. In Crater v. Galaza, 491 F.3d 1119 (9th Cir. 2007), the Ninth
Circuit addressed whether the deference due a state court under § 2254(d)(1)
constituted a suspension of the writ of habeas corpus.

Noting that a

suspension of the writ occurs only when Congress “clearly and
unambiguously” removes all federal habeas corpus jurisdiction, the court
concluded that the plain text of the AEDPA “defeats any suggestion that
§ 2254(d)(1) eliminates habeas jurisdiction entirely.” Id. at 1124. The Ninth
Circuit further concluded that the deference afforded under § 2254(d)(1)
does not “constrain[] relief so dramatically that it effectively suspends the

110

R. Doc. 25 at 13.
35

writ;” rather, relief under § 2254(d)(1) “remains available, but is reserved for
cases where a state adjudication ‘resulted in a decision that was contrary to,
or involved an unreasonable application of, clearly established Federal law,
as determined by the Supreme Court of the United States.’” Id. at 1124-25;
see also Miller-El, 537 U.S. at 340 (holding that a habeas court’s deferential
standard of review “does not imply abandonment or abdication of judicial
review” or “by definition preclude relief”). This Court finds this authority
persuasive and concludes that Miller’s Suspension Clause argument is
without merit. Accordingly, no evidentiary hearing is warranted on his
Brady and Napue claims.

C.

Juror Misconduct

Finally, Miller argues that he is entitled to relief or an evidentiary
hearing based on alleged juror misconduct. Miller contends that his Sixth
and Fourteenth Amendment rights were violated when at least one juror in
the majority of his ten-to-two verdict voted to convict because she wished to
end deliberations, not because she believed Miller was guilty.111

111

Id. at 14.
36

1.

Background

On the second day of deliberations during Miller’s second trial, the jury
notified the trial judge that juror Geralneigh Bazile, a young African
American female,112 refused to participate or cooperate in deliberations.113
The judge then met with the jury, instructing them to evaluate their
convictions and informing them that each juror “must participate in the
[deliberation] process” and consider each other’s views.114 He also spoke
individually with Bazile, who indicated that she believed Miller was not guilty
and felt pressure from her fellow jurors to change her vote.115 The judge
informed Bazile that her vote mattered and that she did not have to change
her view, but she could change it if she believed her position was wrong.116
Less than two hours after the jury returned to deliberations, the judge
was advised that the jury had reached a verdict.117 The court was also advised
that Bazile did not want to leave the jury room and was throwing up.118 The
jury eventually appeared together and announced its ten-to-two verdict of

112
113
114
115
116
117
118

St. Rec. Vol. 17 of 91, Sentencing Transcript, at 10, 8/11/2009.
Id. at 2.
Id. at 5, 8.
Id. at 11-13.
Id. at 12-14.
Id. at 23.
Id.
37

guilty.119 During polling, it was determined that another juror, Edith M.
Jacob, qualified her guilty vote as being “under duress to get out of here.”120
The judge declared the verdict invalid and sent the jury back to deliberate,
reminding the jurors that they should not vote “for the mere purpose of
returning a verdict.”121 That same day, the jury returned with a second tento-two verdict, which the court accepted. The ten votes to convict came from
one African American juror and nine white jurors, including Jacob,122 while
the two not guilty votes both came from African American jurors, including
Bazile.123 When polled, Jacob did not qualify her vote of guilty.
Days later, Jacob spoke with a reporter at the Times-Picayune, stating
that she “changed her vote to guilty to end deliberations to protect a young
juror who felt [Miller] was innocent but who crumbled under ‘brutal’
pressure from other jurors.”124 Jacob also signed an affidavit in which she
maintained that the other jurors were “very abusive” to Bazile, calling her
names and using racial slurs.125 Both the article and affidavit were stricken

119
120
121
122
123
124
125

Id.
Id. at 26.
Id. at 27-28.
Jacob is described in the state trial record as a “white lady” and “white
woman.” Id. at 29-30.
Id. at 15 (defense counsel providing statistics of the verdict vote).
R. Doc. 1-2 at 105.
R. Doc. 1-3 at 97.
38

and not considered by the state courts on direct appeal or post-conviction
review as they impermissibly comprised materials outside of the evidence
under Louisiana Code of Evidence article 606. Now, in this federal habeas
proceeding, Miller again relies on Jacob’s statements to claim that juror
intimidation and racial harassment improperly influenced the guilty verdict.

2.

Merits of Jury Misconduct Claim

As an initial matter, the “abuse” described by Jacob and relied upon by
Miller constitutes “internal,” rather than “external,” influence during the
deliberation process.126 See United States v. Straach, 987 F.2d 232, 241 (5th
Cir. 1993) (distinguishing between external influences, such as newspapers
or statements by court personnel, and internal influences surrounding the
jury’s internal deliberations). Absent a showing of external influence, courts,
as a rule, may not inquire into the jury’s deliberative process based on
allegations of internal influence alone. See Greer v. Thaler, 380 F. App’x
373, 382 (5th Cir. 2010) (citing Tanner v. United States, 483 U.S. 107, 12021 (1987)). Nor may courts consider post-verdict affidavits or testimony
from a juror regarding the internal deliberation process and no such affidavit

126

R. Doc. 24 at 27-29.
39

or testimony can form the basis of a mistrial.127 See Straach, 987 F.2d at 241
(“[J]ury’s internal deliberations cannot result in a mistrial.”); Oliver v.
Quarterman, 541 F.3d 329, 336 (5th Cir. 2008) (“[I]nternal influences . . .
provide no basis for relief.”); see also United States v. Black, 843 F.2d 1456,
1464 n.7 (D.C. Cir. 1988) (“[A] juror’s affidavit is incompetent to impeach the
verdict for internal error; juror affidavits may only be used for the narrow
purpose of showing ‘extraneous influence,’ such as prejudicial publicity.”).
This bar against using juror testimony about internal processes to impeach a
verdict is known as the “no-impeachment rule.” See Pena-Rodriguez v.
Colorado, 580 U.S. 206, 211 (2017) (“A general rule has evolved to give
substantial protection to verdict finality and to assure jurors that, once their
verdict has been entered, it will not later be called into question based on the
comments or conclusions they expressed during deliberations.

This

principle, itself centuries old, is often referred to as the no-impeachment
rule.”).
Miller contends that an exception to the no-impeachment rule should
be made under Pena-Rodriguez v. Colorado, 580 U.S. 206 (2017), because
the evidence shows that Jacob’s vote was motivated in part by racial
harassment directed at another juror.

127

Id. at 29.
40

Miller’s reliance on this case is

misplaced. In Pena-Rodriguez, the Supreme Court examined “whether there
is an exception to the no-impeachment rule when, after the jury is
discharged, a juror comes forward with compelling evidence that another
juror made clear and explicit statements indicating that racial animus was a
significant motivating factor in his or her vote to convict.” Id. at 211. There,
one juror said during deliberations that the defendant was guilty of sexual
misconduct “because [he was] Mexican and Mexican men take whatever they
want” and also because the defendant’s alibi witness was “an illegal.” Id. at
213. The Court held that when “a juror makes a clear statement that indicates
he or she relied on racial stereotypes or animus to convict a criminal
defendant,” the rule barring evidence of internal influence must “give way in
order to permit the trial court to consider the evidence of the juror’s
statement and any resulting denial of the jury trial guarantee.” Id. at 225.
But unlike Pena-Rodriguez, which concerned the jury’s use of racial animus
or stereotypes against the defendant when voting to convict, Miller’s claim is
solely based upon alleged racial harassment directed at Bazile by other
members of the jury. Miller does not contend that the verdict was motivated
by racial bias or animus against him. And Miller points to no Supreme Court
or Fifth Circuit precedent extending the Pena-Rodriguez exception to cases
involving juror harassment directed at another juror.
41

To the contrary, courts are generally in agreement that intra-jury
intimidation or harassment constitutes internal influence covered under the
no-impeachment rule. See, e.g., United States v. Brown, 934 F.3d 1278,
1302-04 (11th Cir. 2019) (holding that allegations of racial bias against police
officers did not satisfy the narrow exception under Pena-Rodriguez, that
allegations of intra-jury bullying were “nothing more than a typical feature
of jury deliberations . . . that [ ] fall[] squarely within the no-impeachment
rule,” and that allegations of gender bias by one juror against another did not
fall within an exception because the court has “never held that bias of one
juror against another juror constitutes an exceptional circumstances to the
no-impeachment rule.” (emphasis in original)); United States v. Bailey, Nos.
19-2280/2281/2354 & 20-1235, 2022 WL 2444930, at *9 (6th Cir. July 5,
2022) (“[C]laims that a juror ‘pressured’ and ‘berated’ other jurors to reach
a guilty verdict concern matters internal to the jury.”); United States v.
Lakhani, 480 F.3d 171, 184-85 (3d Cir. 2007) (“[E]vidence of discussions
among jurors, intimidation or harassment of one juror by another, and other
intra-jury influences on the verdict is within the rule, rather than the
exception, and is not competent to impeach a verdict.”); United States v.
Briggs, 291 F.3d 958, 963 (7th Cir. 2002) (affirming district court’s denial of
post-verdict motion based on a juror’s allegations that jurors and the jury
42

foreman exerted “extreme and excessive pressure on individuals to change
votes”); United States v. Moses, 15 F.3d 774, 778 (8th Cir. 1994) (holding that
hostility among jurors during deliberations may not be shown); Gov’t of V.I.
v. Gereau, 523 F.2d 140, 149-50 (3d Cir. 1975) (“[E]vidence of discussions
among jurors, intimidation or harassment of one juror by another, and other
intra-jury influences on the verdict is within the rule, rather than the
exception.” (emphasis omitted) (footnotes omitted)); Martinez v. Food City,
Inc., 658 F.2d 369, 373 (5th Cir. 1981) (“[J]uror testimony regarding the
possible subjective prejudices or improper motives of individual jurors has
been held to be within the rule, rather than within the exception for
‘extraneous influences.’” (citations omitted)). Without binding precedent to
the contrary, the Court rejects Miller’s objection.
Even if there were circumstances under which a claim of intra-jury
racial harassment would be cognizable, this case would not qualify. This is
not a case where any juror contends that his or her vote to convict was
significantly motivated by racial antagonism or intimidation directed at him
or her by other jurors. Indeed, Bazile herself, who bore the brunt of the
alleged racism and bullying, maintained her position that Miller was not
guilty throughout deliberations and ultimately voted not to convict. And
there is also no allegation that the two other African American jurors,
43

including one who voted not guilty, were subject to any racial animus or
harassment. See Robinson, 872 F.3d at 771 (holding that Pena-Rodriguez
does not overcome the no-impeachment rule when the racial animus of
another juror “appeared not to influence [other juror’s] votes”). Rather,
Jacob, who is white, was the only juror whose vote was allegedly influenced,
albeit indirectly, by the racial harassment aimed at another juror.

As

Magistrate Judge Roby discussed, there is no showing of any racial slurs or
other race-based harassment or intimidation directed at Jacob herself with
the purpose of influencing her vote of guilty.128 Jacob at most vaguely alleges
the use of non-specific “racial slurs” toward Bazile, which allegedly
influenced Jacob’s guilty vote because she wished to end deliberations and
allow the jury to return home.129 This is insufficient to impeach Miller’s
guilty verdict.

See Brown, 934 F.3d at 1302 (holding that the no-

impeachment rule prohibits evidence that a juror “was overcome by

128
129

Id. at 30-31.
While unnecessary to the Court’s decision, the Court notes that Jacob’s
assertion that she voted to convict Miller in part out of a desire to end
the bullying and racial abuse of this young African American juror is
inherently self-contradictory. This is because her actions had the
certain result of convicting Miller, a young African American man, of
second-degree murder, based on evidence Jacob now says she
considered insufficient to convict. Thus, Jacob oddly contends that her
disapproval of racial harassment of an African American woman
motivated her to vote to convict an African American man of seconddegree murder.
44

weariness or unsound arguments of other jurors, or by a desire to return
home”).
The Court further notes that, although Jacob qualified her first vote as
guilty under duress to end deliberations, her second polling contained no
such qualifier. Before sending the jury back in to deliberate, the trial judge
clearly instructed that no juror should vote a certain way “for the mere
purpose of returning a verdict.”130 Even with this cautionary instruction,
Jacob did not reconsider and alter her vote to convict Miller. Jacob also took
no action, beyond the qualification of her initial vote, to alert the state court
of any of the harassment, coercion, or intimidation allegedly occurring in the
jury room towards Bazile.
Accordingly, Miller’s claim based on vague, non-specific allegations of
intra-jury racial harassment, without evidence of outside influence, does not
give rise to a post-verdict inquiry. The Court therefore accepts Magistrate
Judge Roby’s conclusion that Miller’s jury misconduct claim is meritless, and
no evidentiary hearing is warranted on this claim.
In sum, the Court, having reviewed de novo the petition, the record,
the applicable law, the Magistrate Judge’s R&R, and Miller’s objections,
adopts the Magistrate Judge’s R&R as its opinion. Miller’s objections are

130

R. Doc. 24 at 27-28.
45

overruled, and his petition is dismissed for the reasons stated in the
Magistrate Judge’s R&R and in this Order.

II.

CERTIFICATE OF APPEALABILITY
Rule 11 of the Rules Governing Section 2254 Proceedings provides that

“[t]he district court must issue or deny a certificate of appealability when it
enters a final order adverse to the applicant.” A court may issue a certificate
of appealability only if the petitioner makes “a substantial showing of the
denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). The “controlling
standard” for a certificate of appealability requires the petitioner to show
“that reasonable jurists could debate whether (or, for that matter, agree that)
the petition should have been resolved in a different manner or that the
issues presented [are] ‘adequate to deserve encouragement to proceed
further.’” Miller-El, 537 U.S. at 336 (quoting Slack v. McDaniel, 529 U.S.
473, 475 (2000)).
Miller’s petition does not satisfy these standards. For the reasons
stated in this Court’s Order and in the R&R, the Court finds that Miller has
not demonstrated that he is entitled to federal habeas relief under § 2254 or
that his claims would engender debate among reasonable jurists or deserve
encouragement to proceed further. Thus, the Court will not issue a COA.
46

III. CONCLUSION
IT IS ORDERED that Miller’s petition is DISMISSED WITH
PREJUDICE. The Court will not issue a certificate of appealability.

New Orleans, Louisiana, this _____
13th day of November, 2023.
_____________________
SARAH S. VANCE
UNITED STATES DISTRICT JUDGE

47