United States District Court, W.D. Louisiana, Shreveport Division
REPORT AND RECOMMENDATION
MARK L. HORNSBY, Magistrate Judge.
A Caddo Parish jury convicted Antonio Davenport ("Petitioner") of armed robbery. Petitioner was adjudicated a second-felony habitual offender and sentenced to 50 years imprisonment. He pursued a direct appeal, State v. Davenport, 978 So.2d 1189 (La.App.2d Cir. 2008), writ denied, 999 So.2d 748 (La. 2009), and a post-conviction application. He now presents several claims in a petition for federal habeas corpus relief. For the reasons that follow, it is recommended the petition be denied.
Sufficiency of the Evidence
A. The Evidence
Samuel Jeffers, a disabled Vietnam veteran (Tr. 113-59), had his disability benefits payments sent directly to a loan company to which he owed money. The company deducted the payment he owed, and Jeffers would pick up the difference in cash. On an occasion when Jeffers received a few thousand dollars in past due benefits, the loan company did not have enough cash on hand, so they gave Jeffers some cash and about six traveler's checks or money orders for $1, 000 each. (The testimony is not clear on the form of the financial instrument.)
Mr. Jeffers lived near the Salvation Army shelter, and he had struck up a friendship with two women, Aisha Pouncy and Meacha Davenport, who had been staying there. After Jeffers collected his money, he suggested to Pouncy and Davenport that they rent a truck and "just kind of get around a little bit." They first went by cab to a bank to cash some of the checks. Jeffers testified that he started with six of the checks, and he cashed two of them at the bank for $2, 000. Jeffers entered the bank alone, but Davenport later followed him in and saw that he cashed two of the checks.
The group then went by Mr. Jeffers' sister's house to repay her some money, and Jeffers next intended to go to his daughter's house and give her some money. Ms. Davenport, however, said that she had not seen her mother in a year and wanted to drive up to the Cooper Road area for a visit. Another (unnamed) man joined the group somewhere along the way.
Mr. Jeffers testified that he had been drinking brandy during the day, and he took his cup inside when they arrived at the home for the visit. He handed out some small amounts of money to some young children who were there. Soon after they arrived, Ms. Davenport went in the back of the house several times. She eventually returned with a young man who she introduced as her son, Antonio (Petitioner). Soon after, Jeffers and Ms. Pouncy went outside to sit in the truck. Jeffers testified that the two had been making out for about five minutes when he heard his passenger side door open, looked to see what was going on, and was hit in the face with a pistol. Jeffers said that Petitioner was the gunman, and Petitioner stuck the gun in Jeffers' side and said, "Give it up." Jeffers said he hesitated, and Petitioner said, "I ain't playing with you, man. I'm fixing to blow your head off right now if you don't give me that money." Jeffers said he asked Petitioner to not hurt him, reached in his pocket, and gave Petitioner all his money. Petitioner and another man who was with him ran off.
Mr. Jeffers testified that he noticed, as he was being robbed, that Ms. Pouncy was tussling with someone. Pouncy ran from the truck at about the same time the robbers left, and she used her cell phone to call police. Ms. Pouncy described the robbery similarly, although she said they had just arrived at the truck when it happened. She said that as she tried to get out of the truck and escape, Meacha Davenport was blocking her and saying, "Don't say nothing." Don't say nothing. That's my son. That's my son." Pouncy got her purse and started walking. At one point, two of the nephews approached her and "looked like they was going to do something, but I had my cell phone in my hand, dialing 911 then." Pouncy testified that she had met Petitioner once before, at Christmas, a couple of weeks before the robbery. Tr. 170-201.
Detective Michael McConnell (Tr. 201-16) testified that police developed two suspects and put together photo lineups. Ms. Pouncy identified Petitioner from the photo lineup. Mr. Jeffers could only narrow it down to two of the photographs, but one of them was of Petitioner. At trial, both witnesses made courtroom identifications of Petitioner as the robber. No firearm was ever found, and there was no evidence of fingerprints, recovered cash or monetary instruments, or other physical evidence to link Petitioner to the crime.
Louisiana law defines armed robbery as the taking of anything of value belonging to another from the person of another or that is in the immediate control of another, by use of force or intimidation, while armed with a dangerous weapon. La. R.S. 14:64. The jury returned a unanimous verdict of guilty and finding that Petitioner used a firearm in the crime. Tr. 246-49.
B. Jackson and Section 2254(d)
In evaluating the sufficiency of evidence to support a conviction "the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Jackson v. Virginia, 99 S.Ct. 2781, 2789 (1979). Petitioner has three issues that challenge the sufficiency of the evidence or argue that he is actually innocent. Each of his arguments will be considered, but they are all governed by the Jackson standard.
The state appellate court conducted a Jackson analysis on direct appeal and found the evidence sufficient. Habeas corpus relief is available with respect to a claim that was adjudicated on the merits in the state court only if the adjudication (1) 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 or (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the state court proceedings. 28 U.S.C. § 2254(d). Thus a state-court decision rejecting a sufficiency challenge is reviewed under a doubly deferential standard. It may not be overturned on federal habeas unless the decision was an objectively unreasonable application of the deferential Jackson standard. Parker v. Matthews, 132 S.Ct. 2148');"> 132 S.Ct. 2148, 2152 (2012).
Petitioner points to a number of what he contends are important conflicts in the evidence. For example, Mr. Jeffers volunteered that he was a "weapons expert" during the testimony about the gun used in the crime. Petitioner points out that Jeffers was, however, unfamiliar with the model 1911-A asked about by defense counsel. Jeffers said, "I shoot weapons. I don't identify them." Tr. 146-48. There was also disagreement between Jeffers and Aisha Pouncy about the nature of their relationship. Jeffers said that the couple had a romantic relationship of sorts, once had sex, and that they were making out in the truck before the robbery. Jeffers said he ended his pursuit of Pouncy when he learned that she was married. Pouncy testified that there was no romantic relationship and that it was all in Jeffers' imagination.
The witnesses admitted that they had been drinking during the day, and Mr. Jeffers had Ms. Pouncy drive to avoid a potential DWI arrest (he had two already). The testimony was that a group of four shared a bottle or perhaps two of brandy during the day. There was also mention of some Boone's Farm wine. Jeffers denied that he was intoxicated or impaired by the alcohol to the extent it would affect his ability to identify his attacker. Petitioner points to a reference in a report that $16, 000 was taken, which did not square with the testimony that only $6, 000 was at issue. Detective McConnell explained that this was likely the result of a handwriting or transcription error, which he had seen often in police reports.
The state appellate court reviewed the testimony, including Jeffers' and Pouncy's identifications of Petitioner as the man who held a gun to Jeffers and forced him to turn over his money. The appellate court noted the inability of Jeffers to identify the specific type of weapon used by the robber, the admission of drinking before the incident, and various discrepancies in the testimony that were brought out on cross-examination. It found that a jury was, however, entitled to credit Jeffers' testimony "despite the minor imperfections in his recollection." A rational jury could have found the elements of armed robbery proven beyond a reasonable doubt, so the conviction was affirmed. State v. Davenport, 978 So.2d at 1192-93. This court may not overturn that adjudication unless it was an objectively unreasonable application of Jackson.
Mr. Jeffers and Ms. Pouncy offered testimony that an armed robbery occurred and that Petitioner committed it. Petitioner argues that the two witnesses should not have been believed by the jury, but "under Jackson, the assessment of the credibility of the witnesses is generally beyond the scope of review." Schlup v. Delo, 115 S.Ct. 851, 868 (1995). "All credibility choices and conflicting inferences are to be resolved in favor of the verdict." Ramirez v. Dretke, 398 F.3d 691, 695 (5th Cir. 2005). And "it is the responsibility of the jury-not the court-to decide what conclusions should be drawn from evidence admitted at trial." Cavazos v. Smith, 132 S.Ct. 2, 4 (2011). Petitioner's credibility argument is simply beyond the scope of what is permitted on review under Jackson, and the state court's assessment of the evidence was entirely reasonable. Relief is not permitted on this claim.
Sequestration of Witnesses
The only trial witnesses were Mr. Jeffers, Ms. Pouncy, and Detective McConnell. Defense counsel began the trial by stating that he would "like the rule of sequestration." The court responded, "All right." Tr. 3. Petitioner has not pointed to any indication in the record that the rule was not honored, but he argued in his post-conviction application that the state court violated Louisiana statutes by allowing Jeffers to see the prosecutor identify the defendant during opening statements and allowing Pouncy to hear Jeffers testify before she took the stand.
Petitioner presented the argument in his post-conviction application and to this court as a claim for a violation of a "statutory right." Tr. 491. The trial court denied the application because such a claim is not a cognizable ground for post-conviction relief. Tr. 516-17. The state appellate court rejected the claim because no prejudice was demonstrated. Tr. 602. The Supreme Court of Louisiana denied writs without comment.
The habeas statute provides that a federal court may issue a writ of habeas corpus to a state prisoner only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States. 28 U.S.C. § 2254(a). A prerequisite is that the petitioner exhaust his state court remedies with respect to a federal constitutional claim. Scott v. Hubert, 635 F.3d 659, 667 (5th Cir 2011), citing Baldwin v. Reese, 124 S.Ct. 1347 (2004). Petitioner presented the state courts with nothing but a state law claim. The Supreme Court has "stated many times that federal habeas corpus relief does not lie for errors of state law." Swarthout v. Cooke, 131 S.Ct. 859, 861 (2011). Habeas relief is therefore not available even if Petitioner is correct on the state law issue. See also Passman v. Blackburn, 652 F.2d ...