Barnes v. Cain

Filing 61

ORDER: If the petitioner is not asserting his actual innocence as a basis for federal habeas corpus relief in Ground IV, the petitioner shall have 14 days to file an amended petition clarifying his claim in Ground IV. Signed by Magistrate Judge Stephen C. Riedlinger on 4/24/2014. (SMG)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA

DOUGLAS BARNES (#402782)
VERSUS

CIVIL ACTION

BURL CAIN

NUMBER 07-274-JJB-SCR
ORDER

Before the court is the Petition For Writ of Habeas Corpus
Under 28 U.S.C. § 2254 By a Person in State Custody filed on behalf
of Douglas Barnes, including the Supplemental Petition for Writ of
Habeas Corpus Under 12 (sic) U.S.C. § 2254 By a Person in State
Custody.

Record document numbers 1 and 50, respectively.
I. Procedural History

Petitioner was found guilty of one count second degree murder
in the Nineteenth Judicial District Court for the Parish of East
Baton Rouge, Louisiana on April 2, 2001.

Petitioner was sentenced

to life imprisonment at hard labor without benefit of probation,
parole, or suspension of sentence.
The Louisiana First Circuit Court of Appeal affirmed the
conviction and sentence.

State of Louisiana v. Douglas Barnes,

2002-0572 (La. App. 1st Cir. 11/20/02), 836 So.2d 704 (Table).
Petitioner’s application for supervisory review was denied by the
Louisiana Supreme Court.

State of Louisiana v. Douglas Barnes,

2002-3139 (La. 9/26/03), 854 So.2d 346.
Petitioner filed an application for post-conviction relief
(“PCRA”) in the state district court on September 24, 2004.
Petitioner raised the following grounds for relief:
(1) he was denied a right to a fair trial when;
(a)

the trial court erred in denying his motion for
post-verdict judgment of acquittal, or modified
verdict, or new trial because the evidence adduced
at trial was legally insufficient to support the
conviction;

(b)

the trial court erred in denying his motion for
severance

and

motion

for

new

trial,

which

was

based, in part, on an erroneous ruling with regard
to the motion for severance; and
(c)

the prosecution withheld exculpatory evidence in
violation of Brady v. Maryland;1

(2)

he was denied effective assistance of counsel on appeal;

(3)

he received an excessive sentence.

Petitioner filed a supplemental PCRA on March 1, 2005, raising
the following additional grounds:
(4)

there

was

insufficient

evidence

to

support

the

conviction; and
(5) he was denied effective assistance of counsel on appeal.
1

373 U.S. 83, 83 S.Ct. 1194 (1963).
2

The state district court denied the petitioner’s PCRA on
September 20, 2005.

Petitioner sought supervisory review from the

Louisiana First Circuit Court of Appeal.
denied review.

State of Louisiana v. Douglas Barnes, 2005-2614

(La. App. 1st Cir. 4/10/06).
Louisiana Supreme Court.
review.

The appellate court

Petitioner sought review by the

The Louisiana State Supreme Court denied

State of Louisiana v. Douglas Barnes, 2006-1106 (La.

2/2/07), 948 So.2d 189.
Petitioner filed his Petition For Writ of Habeas Corpus Under
28 U.S.C. § 2254 By a Person in State Custody (hereafter, “Original
Petition”) on May 1, 2007.

Petitioner asserted the following

grounds for relief:
(1)

the State withheld exculpatory evidence in violation of
his due process rights;

(2)

he was denied the right to cross-examine a witness; and,

(3)

there

was

insufficient

evidence

to

support

the

conviction.
On September 28, 2008, a Magistrate Judge’s Report was issued
recommending that the Original Petition be denied.2

Petitioner

filed an objection to the report and recommendation.3

The matter

was referred back to the magistrate judge for the issuance of a
supplemental

report

addressing

the

2

Record document number 16.

3

Record document number 17.
3

objections

raised

by

the

petitioner.4
Judge’s

Report

On

October

was

27,

issued,

2008,

once

a

again

Supplemental
recommending

Magistrate
that

the

Original Petition be denied.5
On May 1, 2009, the petitioner filed Petitioner’s Motion to
Hold Habeas Corpus Petition in Abeyance.6 Following oral argument,
the Petitioner’s Motion to Hold Habeas Corpus Petition in Abeyance
was granted.7

On July 13, 2012, this case was administratively

terminated without prejudice to the right of the parties to reopen
the case.8
Petitioner returned to state court, where he filed his second
PCRA in the state district court on May 4, 2009.9

Petitioner

raised a single ground for relief:
(1)

newly discovered evidence — the affidavit of Joseph
Cosimini executed on March 18, 2009, – impeaches the
testimony of Alan Hill and Chad Babineaux.10

Petitioner supplemented his second PCRA on July 2, 2009,
raising the following additional grounds for relief:

4

Record document number 18.

5

Record document number 19.

6

Record document number 30.

7

Record document number 39.

8

Record document number 47.

9

Record document number 50-3.

10

Id.
4

(2)

the prosecution withheld favorable evidence regarding the
sentencing agreement with Cosimini, in violation of the
petitioner’s due process rights;

(3)

the prosecution knowingly introduced false testimony,
i.e., it concealed the sentencing agreement with Cosimini
in exchange for his testimony; and,

(4)

the petitioner was denied the right to confront Cosimini
about the deal between him and the district attorney.11

On January 10, 2013, the state district court denied the
petitioner’s second PCRA on the grounds that the PCRA was untimely
and repetitive, pursuant to La.C.Cr.P. arts. 930.8 and 930.4,
respectively.12

Petitioner

sought

supervisory

Louisiana First Circuit Court of Appeal.
denied review.

by

the

The appellate court

State of Louisiana v. Douglas Barnes, 2013-0339

(La. App. 1st Cir. 5/8/13).13
Louisiana Supreme Court.
review.

review

Petitioner sought review by the

The Louisiana State Supreme Court denied

State of Louisiana v. Douglas Barnes, 2013-1289 (La.

10/11/13), 123 So.3d 1226.

11

Record document number 50-4.

12

Record document numbers 50-10 and 50-13. A copy of the
trial court’s ruling was not attached as an exhibit to the
supplemental petition.
However, the petitioner referenced the
trial court’s ruling and the basis for the decision in his
applications for supervisory review by the Louisiana First Circuit
Court of Appeal and the Louisiana Supreme Court.
13

Record document number 50-12.
5

On January 22, 2014, the petitioner filed a Motion to Remove
Stay and Abey in this court.14 Petitioner also filed a Supplemental
Petition for Writ of Habeas Corpus Under 12 (sic) U.S.C. § 2254 By
a Person in State Custody (hereafter, “Supplemental Petition”).15
Therein the petitioner asserted the following four grounds for
relief:
I.

the

prosecution

withheld

favorable

and

impeachment

evidence regarding the sentencing agreement with Cosimini
and allowed Cosimini to testify falsely regarding the
sentencing agreement, in violation of the petitioner’s
due process rights;
II.

he was denied his Sixth Amendment right to confront
Cosimini regarding the sentence agreement;

III. there

was

insufficient

evidence

to

support

the

conviction; and,
IV.

newly discovered evidence casts doubt on the petitioner’s
second degree murder conviction, i.e., the petitioner is
actually innocent.
II. Mixed Petition

The State argued in its Memorandum in Opposition to Petition
for

Writ

of

Habeas

Corpus

that

14

Record document number 48.

15

Record document number 50.
6

Ground

IV

asserted

in

the

Supplemental Petition is clearly not exhausted.
One of the threshold requirements for a § 2254 petition is
that, subject to certain exceptions, the petitioner must have first
exhausted in state court all of his claims before presenting them
to the district court. 28 U.S.C. § 2254(b)(1) (“An application for
a writ of habeas corpus on behalf of a person in custody pursuant
to the judgment of a State court shall not be granted unless it
appears that ... the applicant has exhausted the remedies available
in the courts of the State....”) The Supreme Court has interpreted
§ 2254(b)(1) to require dismissal of a habeas corpus petition if it
contained even a single unexhausted claim - the “total exhaustion”
requirement.

Rose v. Lundy, 455 U.S. 509, 518-19, 102 S.Ct. 1198

(1982).
In Rhines v. Weber, 544 U.S. 269, 125 S.Ct. 1528 (2005), the
Supreme Court created an exception to Lundy for mixed petitions.
The Supreme Court held that a district court may stay a mixed
petition rather than dismiss it, holding the petition in abeyance
while the petitioner seeks exhaustion of any unexhausted claims in
state court.

Id.

However, the Court feared that liberal use of

this stay-and-abeyance procedure might undermine the Antiterrorism
and Effective Death Penalty Act’s twin purposes of encouraging the
swift execution of criminal judgments and favoring the resolution
of habeas claims in state court, if possible, before resorting to
federal review.

Id. at 276-78, 125 S.Ct. at 1534-35.

7

Therefore,

Rhines mandated that a district court should grant a stay and
abeyance only in limited circumstances where: (1) the petitioner
had good cause for his failure to exhaust his claims first in state
court, (2) his unexhausted claims are potentially meritorious, and
(3)

there

is

no

indication

that

the

petitioner

intentionally dilatory litigation tactics.

engaged

in

Id.

The State understood the petitioner to be asserting in Ground
IV of the Supplemental Petition that he is actually innocent of the
crime for which he was convicted, and that his actual innocence
claim

is

a

stand-alone

ground

for

relief.

The

State’s

interpretation is a fair reading of the petitioner’s Ground IV.16
As such, the petitioner fails to satisfy the three requirements set
forth in Rhines as to Ground IV, understood as an actual innocence
claim.

First, a careful review of the petitioner’s state court

filings does not reveal any good reason for not asserting his
actual innocence as a ground for relief in his second PCRA.
Second, the Supreme Court has never held that actual innocence is
a stand-alone ground for granting federal habeas corpus relief.
16

See record document number 50, p. 12-13, where the
petitioner made the following arguments: “There is a constitutional
right, enforceable in habeas corpus proceedings, to freedom from
convictions later shown to be erroneous on the basis of newly
discovered evidence.”; “Federal courts traditionally have held that
newly discovered proof of innocence makes out a cognizable habeas
corpus claim when coupled with an independent constitutional
violation.”; “If this case were presented to a jury today, the
evidence would neither support a conviction based on Barnes having
delivered fatal blows, or support a conviction [of] Barnes as a
principal to the murder.”
8

Third,

as

to

engaging

in

dilatory

litigation

tactics,

the

petitioner obviously seeks to have this court address the merits of
Ground IV notwithstanding his apparent failure to exhaust it.
However, it is not clear at this time whether the petitioner would
seek another stay and abey order so that he may again return to the
state court to exhaust his actual innocence claim.

Should he do

so, that would be a clear indication that the petitioner is
engaging in dilatory litigation tactics.
Should this court’s and the State’s interpretation of the
petitioner’s Ground IV claim be incorrect - meaning that he is not
asserting his actual innocence as a basis for federal habeas corpus
relief

–

the

petitioner

needs

to

file

an

amended

petition

clarifying his claim in Ground IV.
Therefore;
IT IS ORDERED that, if the petitioner is asserting his actual
innocence as a basis for federal habeas corpus relief in Ground IV
of the Supplemental Petition, the petitioner shall have 14 days
from the date of this order to file a motion dismissing this ground
for relief as it has not been fully exhausted through the state
courts.
Alternatively;
IT IS ORDERED that, if the petitioner is not asserting his
actual innocence as a basis for federal habeas corpus relief in
Ground IV, the petitioner shall have 14 days to file an amended

9

petition clarifying his claim in Ground IV.
If the petitioner fails to comply with either of the above
alternatives, Ground IV of his Supplemental Petition will be
interpreted at asserting his actual innocence as a basis for
federal habeas corpus relief.
Petitioner is cautioned that dismissal of his federal habeas
corpus petition, which includes both the Original Petition and the
Supplemental Petition, in its entirety as a mixed petition may
adversely

impact

his

ability

to

timely

file

another

§

petition.
Baton Rouge, Louisiana, April 24, 2014.

STEPHEN C. RIEDLINGER
UNITED STATES MAGISTRATE JUDGE

10

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