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Francis v. State

United States District Court, W.D. Louisiana, Lafayette Division

November 28, 2017

JAMES R. FRANCIS LA. DOC #92059
v.
STATE OF LOUISIANA

         SECTION P

          REPORT AND RECOMMENDATION

          PATRICK J. HANNA UNITED STATES MAGISTRATE JUDGE.

         Pro se petitioner James R. Francis, an inmate in the custody of Louisiana's Department of Corrections, filed the instant petition for writ of habeas corpus pursuant to 28 U.S.C. §2254 on February 16, 2017. Petitioner attacks his 2012 conviction for second degree murder and the life sentence imposed thereon by the Fifteenth Judicial District Court, Lafayette Parish. This matter has been referred to the undersigned for review, report, and recommendation in accordance with the provisions of 28 U.S.C. §636 and the standing orders of the Court.

         Statement of the Case

         The underlying facts in this case have been set forth by the Louisiana Third Circuit Court of Appeal as follows:

On August 31, 2008, Defendant shot the victim, Qaher Abualoff, in the parking lot at Food World in Lafayette, Louisiana. The victim sustained a bullet wound to the head above the eyebrow and died two days later.
Tawfic "Sam" Saleh was a part owner of Food World and was in the process of transferring it to the new owners, the victim and Saber Zaben, at the time of the shooting. Defendant had worked for Mr. Saleh about two years before this incident as a "helper carpenter."
On the day of the shooting, Mr. Saleh first saw Defendant when he came into the store, very angry. Defendant asked for Mr. Saleh, who spoke to Defendant in the back of the store. When he saw Defendant walk out of the store, Mr. Saleh walked out also. As they talked outside, Defendant's brother, Michael Francis, came outside, and appeared to be very angry. Michael had been arguing with the victim inside the store.
The victim came outside, and Michael exchanged words with him. Mr. Zaben and the victim's wife also came outside, and all of them watched the argument. They tried to make Michael leave. Defendant then stepped back and lifted his shirt, and Mr. Saleh saw a gun. Defendant began shooting. The victim was shot in the head, and the others ran back inside. Mr. Saleh heard another shot that he thought was intended for him.
Everyone went to the office, then Mr. Saleh went back to look outside. He saw a green car with the trunk open, and he saw Michael grab the shotgun and put it in the trunk. Mr. Saleh never saw the victim do any threatening act.
Wagdan Hussein, Mr. Zaben's wife, testified that she saw Michael come in the store and purchase two beers. Michael became very upset because he wanted the victim to package the two beers in separate bags. Michael began yelling and swearing, and he walked outside. Mr. Zaben followed him outside to see why he was so mad. The victim tried to calm Michael and then asked him to leave and not come back. Mrs. Hussein testified that Defendant then pulled the gun and shot the victim. Mrs. Hussein identified Defendant as the shooter at trial.
Joshua Duruise, who was at the store at the time of the incident, testified that he saw Defendant hollering at Mr. Saleh outside the store on the day of the incident. According to Mr. Duruise, a man inside the store (Michael) was buying some beer and was yelling and complaining that the beer needed to be in two bags. A man behind the counter (Mr. Saleh) attempted to calm Michael and asked why he was so mad. When Michael threatened to go behind the counter and kick Mr. Saleh and then headed in that direction, "the guy behind the counter started to come out like he was going to fight him." Mr. Duruise stated that the victim, who "was trying to make peace, " urged the customer to leave the store. Mr. Duruise stated that Defendant was outside, and the victim went outside. The victim was holding his baby, and he gave the child to his wife when "[h]e went outside to break them up[, ] and he got shot." Mr. Duruise testified that he did not see anyone pushed or hit but that he saw Defendant pull a gun out of his shirt and kill the [Pg 3] victim. Less than a minute passed between the time they went outside and the time the shot was fired.
Patrena Rubin, who was shopping at Food World at the time of the incident, testified that she saw Mr. Saleh ask a man where he was from, "trying to be nice to the customer[, ] but the customer got upset." The customer went outside, and Ms. Rubin went outside and got in her car. She heard a gunshot and saw the victim fall to the ground. Ms. Rubin identified Defendant as the shooter.
Andy Latiolais testified that he was walking into Food World when he saw a "guy having an altercation with some people. He was very loud, arguing. The other man was saying, 'Leave, leave.'" The next thing Mr. Latiolais knew, a "guy in a big hat drew out a pistol and shot the [victim]." Mr. Latiolais heard another shot that "sounded close" and then heard a third shot. Although the victim and the other man (Michael) argued, the victim was keeping his distance, and Mr. Latiolais testified that he did not see anyone hit or push anyone else.
Michael Francis also testified at trial. He was charged with second degree murder of the victim and as a felon in possession of a firearm, but he had not yet gone to trial. Michael testified that when he and Defendant arrived at Food World on the day of the incident, Defendant left him to talk outside with Mr. Saleh, and Michael went inside to get some beer. According to Michael, a man in the store (the victim) asked Michael where he was from several times and followed him to his car outside. Mr. Saleh put his hands on Michael, "[a]nd he placed the little girl on [his] arm, " making Michael feel like he could not defend himself. Another man (apparently the victim) stood nearby with his hands on his pocket. Michael then heard a gunshot; he ran to the back seat of his car and grabbed a car jack to use as some type of protection.
Michael testified that the victim was trying to pry something out of his pocket. He never saw what was in the pocket, and he was never concerned about his safety. However, Michael testified that Mr. Saleh and the victim were approaching him and Defendant in a manner that did not feel friendly and that he felt as if they were trying to agitate him or take something from him. Michael stated that there was no physical contact other than Mr. Saleh grabbing Michael's arm.
At the time of his testimony, Michael was charged as a principal in another murder in Abbeville and with being a felon in possession of a firearm. He had a ...

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