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Jackson v. Vannoy

United States District Court, E.D. Louisiana

February 27, 2018

DAVON JACKSON
v.
DARREL VANNOY, WARDEN

         SECTION “F” (4)

          REPORT AND RECOMMENDATION

          KAREN WELLS ROBY CHIEF UNITED STATES MAGISTRATE JUDGE.

         This matter was referred to a United States Magistrate Judge to conduct hearings, including an evidentiary hearing if necessary, and to submit proposed findings and recommendations pursuant to 28 U.S.C. § 636(b)(1)(B) and (C), and as applicable, Rule 8(b) of the Rules Governing Section 2254 Cases. Upon review of the entire record, the Court has determined that this matter can be disposed of without an evidentiary hearing. See 28 U.S.C. § 2254(e)(2) (2006).[1]

         I. Factual Background

         The petitioner, Davon Jackson (“Jackson”), is a convicted inmate incarcerated in the Louisiana State Penitentiary, in Angola, Louisiana.[2] On January 2, 2003, Jackson was indicted by a Grand Jury in Orleans Parish for one count of second degree murder.[3] Jackson entered a plea of not guilty in the case.[4]

         The record reflects that on July 5, 2001, the body of Anthony St. Pierre was found at his residence at 12631 North Lake Carmel Drive in New Orleans East.[5] St. Pierre was found in his bedroom lying face up near the side of the bed and had sustained multiple gunshot wounds. His hands and feet were bound.

         According to Detective Darryl Ribet, the initial lead investigator on the case, there were no signs of forced entry to the house. Ribet testified that the house was not ransacked, but the bedroom looked like it had been rummaged through.

         On the morning of July 6, 2001, Dr. William Newman, an expert in forensic pathology, conducted St. Pierre's autopsy. Dr. Newman noted that St. Pierre's hands had been tied behind his back with pantyhose, and his legs had been tied together with stretch pants. St. Pierre sustained five gunshot wounds, each with a corresponding exit wound. The testing of the fluids collected from St. Pierre's body was negative for crack cocaine, heroin, and marijuana, and his blood alcohol content was 0.01%. St. Pierre's lower abdomen had some discoloration which indicated that he had been dead for more than twenty-four hours. Dr. Newman estimated that St. Pierre had been dead for approximately thirty-six to forty-eight hours and that he likely died sometime on July 4, 2001.

         Aaronne Simmons testified that St. Pierre was his godfather. He identified photographs of St. Pierre and his dogs, one of whom Simmons took possession of after the murder. Simmons explained that St. Pierre and Lakesha Alexis worked together at Medical Cart Pharmacy on Lake Forest Boulevard. Simmons testified that St. Pierre did not answer when he called him on the evening of July 4, 2001. After St. Pierre did not answer his telephone the next day, Simmons called his work, but no one answered the phone. Simmons went to the pharmacy, but St. Pierre was not there. Simmons became concerned that something was wrong so he borrowed a gun from a friend and had his wife drive him to St. Pierre's house. When he arrived, Alexis and another pharmacy employee were waiting outside of the house. Simmons entered the house and called for St. Pierre, but there was no answer. Upon opening the bedroom door, Simmons found St. Pierre lying on the floor with his hands and feet bound. Simmons recalled that one of St. Pierre's dogs had been enclosed in the room. Simmons testified that he let the dog out into the backyard and the dog generally would not allow anyone unknown to it to enter the house. He then asked Alexis to call the police. Simmons recalled that he spoke with an officer named Desmond Julian who was on the scene but was not on duty that day. He then went home and returned the gun to the man from whom he had borrowed it.

         Louisiana State Trooper Desmond Julian was an officer for the New Orleans Police Department at the time of St. Pierre's murder. He testified that he had been a friend of St. Pierre since childhood and that Julian and Jackson were cousins. Julian explained that he introduced Jackson and St. Pierre in 1989 or 1990. Julian testified that, although he was off duty on July 5, 2001, he went to St. Pierre's house when he heard about the murder, but explained that he was not permitted to enter the house. He recalled that many people were on the scene that day including Simmons and Alexis. Julian recalled speaking with Simmons, who was very upset and crying.

         Lakesha Alexis testified that St. Pierre was the pharmacist at Medical Cart Pharmacy where she worked as a pharmacy technician in July 2001. Alexis and St. Pierre became very good friends over the two years they worked together. Alexis explained that St. Pierre had many other friends who would visit him at the pharmacy. She identified Simmons and Julian as friends of St. Pierre. She testified that Jackson also visited the pharmacy often, but that St. Pierre would usually go outside to speak with Jackson. Alexis testified that she usually answered the telephone at the pharmacy, and she recognized Jackson's voice. She recalled that on July 3, 2001, St. Pierre and Jackson argued many times over the phone, and that St. Pierre was very upset and in tears and slammed down the phone many times. She testified that St. Pierre told her that Jackson kept asking him for money to buy a new outfit for the holiday. She explained that St. Pierre told her that he was tired of giving Davon Jackson money and he refused to give him money on this occasion. She stated that St. Pierre was the most upset that she had ever seen him and that St. Pierre was still upset when she called him later that evening.

         The morning of July 5, 2001, St. Pierre was not at the pharmacy when Alexis arrived so she waited outside until another worker let her in the building. As Alexis could not start work in the pharmacy until St. Pierre arrived, she called his cell phone, but determined that it was turned off. She drove to St. Pierre's house and rang the bell and knocked on the door. Alexis stated that St. Pierre's two large dogs did not come to the door but that she could hear them barking inside the house. Alexis found the door unlocked, but she closed the door because she feared something was wrong. After she called the pharmacy, her coworker Kevin and a customer named John arrived, as did Simmons who drove up in a car with a young woman. Alexis, John, and Simmons went inside the house, and Simmons and John knocked on the bedroom door. Alexis could hear dogs inside the bedroom, growling and barking. She stayed back while Simmons opened the door. The men told her that St. Pierre was dead and tied up and asked her to call the police. Alexis ran outside and called 911. She indicated that Simmons was still on the scene when the police arrived. Julian arrived on the scene at some point, but Alexis did not remember seeing him speaking with Simmons, nor did she remember when Simmons left. She identified a tape of the 911 call she made, which was played for the jury.

         Rita Levy, St. Pierre's sister, testified that she had not visited him very much in the last few years of his life. She testified that, prior to the murder, there were no guards at the entrance to St. Pierre's subdivision. Levy recalled that she met Jackson once in 1999 when he accompanied St. Pierre to a family meeting at her house following the death of her father. She recalled that Jackson did not attend St. Pierre's funeral. Levy explained that she and her son went to clean St. Pierre's house a few days after the murder. Her son found a bullet under the carpet which police officers came and retrieved. Levy also found a stack of personal papers that included some letters Jackson wrote to St. Pierre.

         Cassandra Jackson, a friend of Davon Jackson, gave a statement to two detectives in August 2001 wherein she admitted that she drove Davon Jackson to St. Pierre's house to retrieve clothing on July 4, 2001, around 10:30 or 11:00 a.m. At trial, Cassandra Jackson testified that Davon Jackson had stayed with her on July 3, 2001. She admitted that she took Jackson to a house to retrieve clothes, but initially insisted it was before July 4, 2001. She testified that Jackson was inside the house less than a minute and returned with a bag of clothes. She first testified that after Jackson returned to the car they then drove to a nearby gas station where Davon Jackson paid for gas. Cassandra Jackson testified that they then returned to her house and Jackson left. She admitted that she did not see Jackson until the next day.

         When shown a picture of St. Pierre's house, she claimed she did not recognize it. Cassandra Jackson admitted that the detectives had shown her a photograph of a house, but testified that she did not remember if she told them that it was the house where she took Jackson. She initially testified that she did not know if St. Pierre's house was the place where she took Jackson. She later testified that it was not the house, but then changed her mind again and said she was not sure if it was the house.

         Cassandra Jackson admitted to giving detectives a statement, but claimed that she was scared when she gave the statement and told the detectives many false things. She first denied telling the detectives that Jackson had keys to the house when he exited the car. She then admitted that she told the detectives that he had keys, but stated that she lied. She claimed that she did not recall telling the detectives that Jackson was inside the house thirty minutes to an hour. She also did not recall telling the detectives that Jackson gave her a black bag containing clothing and shoes. She denied telling the detectives that Jackson did not get back in the car with her, but instead he walked to a nearby gas station, where he met her and she threw away the bag. She eventually admitted that Jackson walked to the gas station and met her there, but she denied that she was at the gas station for twenty minutes before he arrived.

         After listening to the audiotape of her statement to the detectives, Cassandra Jackson admitted that she told police she brought Davon Jackson to the house on July 4, 2001. She also admitted telling the detectives that Davon Jackson had keys in his hand when he walked towards the house, that he was in the house thirty minutes to an hour, and that she waited at the gas station for twenty minutes.

         On cross-examination, Cassandra Jackson denied taking Davon Jackson to the house on July 4, 2001 and claimed she had taken him there weeks before. She claimed the detectives had threatened to charge her if she did not admit she took Jackson to the house on July 4, 2001. On re-direct, Cassandra Jackson admitted that she had told the prosecutor immediately prior to trial that she took Davon Jackson to the house in early July 2001.

         Kerry Kennedy, who was married to Davon Jackson's cousin, testified that sometime around July 4, 2001, he attended the funeral of the grandfather of his wife and Jackson. According to Kennedy, Davon Jackson did not attend the funeral. Kennedy recalled that, sometime later that month, he had a conversation with Jackson at a second line parade. Kennedy asked Jackson why he had not attended his grandfather's funeral. Jackson asked Kennedy if he had heard what had happened to St. Pierre. When Kennedy told Jackson that he had heard about the murder, Jackson asked him if he knew what happened. Kennedy told him he did not and Jackson replied, “I had to take him under, take him out.” Kennedy testified that Jackson told him that St. Pierre was playing “gay games with him, trying to return and do sexual favors.” Kennedy recalled that Jackson told him, “Man, I got tired - tired of him playing with me with them sexual favors. I took him out. I took him under.” Jackson then showed him two nine-millimeter guns and asked Kennedy if he wanted to buy them. Kennedy told Jackson he was interested in the guns, but testified that he did so just to get away from Jackson. He stated that after he left Jackson, he and his wife and children went home.

         Kennedy did not call the police although his wife urged him to do so. A few days later, when Kennedy saw Detective Dwight Deal jogging in a park, he told him about his conversation with Jackson. Detective Deal put Kennedy in touch with the officers working on the St. Pierre case. Thereafter, Kennedy gave statements to the police on two occasions, one of which was recorded. Kennedy testified that after meeting with police he was supposed to attempt to purchase the guns from Jackson, but that Jackson was arrested before he could do so.

         Officer Michael DiMarco testified that he and his partner, Donald Hayes, conducted a traffic stop of Jackson on July 11, 2001. Officer DiMarco stated that Jackson, who was driving a tan Mercury vehicle at a high rate of speed, drove the wrong way down Barracks Street. He then backed up the car and drove towards Officer DiMarco's vehicle. The officers effected a traffic stop. As he approached the vehicle, DiMarco noticed suspicious movements by the occupants. DiMarco ordered Jackson and the passenger out of the car. After they had exited, DiMarco looked inside the car and saw the butt of a handgun sticking out from under the seat. He placed Jackson and his passenger in handcuffs and then retrieved a loaded nine-millimeter gun.

         On August 1, 2001, Lieutenant Michael Mims of the New Orleans Police Department took a statement from Davon Jackson after advising him of his rights. Jackson told Mims that he had not seen St. Pierre since June 2001. Jackson claimed that he was at the home of Cynthia Jackson, his aunt, in the Iberville Housing Project on July 4, 2001. Davon Jackson said he then went to an amusement arcade in the French Quarter and later went to his grandmother's house in the Ninth Ward. Mims testified that Davon Jackson did not give him an address or telephone number for his aunt. Mims was unable to find Jackson's aunt's name amongst either the computer listing or a book of Iberville Housing Project residents. When Mims and Detective Ribet went to the arcade in an attempt to confirm whether Jackson was there on July 4, 2001, they learned that the arcade did not have surveillance cameras. Mims testified that no one was at home at Jackson's grandmother's house, which was the address Jackson gave at the time of his arrest. Mims also testified that a Bryco Arms Jennings Model 9 nine-millimeter semi-automatic pistol was confiscated from the vehicle Jackson was driving on July 11, 2001.

         Cynthia Jackson Slaughter, Jackson's aunt, testified that in July 2001 she lived in an apartment in the Iberville Housing Project with various relatives. According to Slaughter, Davon Jackson spent the night at her apartment on July 3, 2001, and remained there most of July 4, 2001. There was a large family gathering at the apartment on July 4, 2001. Slaughter recalled that Jackson left for a brief time in the afternoon with his cousins to go to the store. She testified that, at some time before 9:00 p.m., Jackson and others left to go to the French Quarter to see the fireworks.

         Tonya Jackson, Davon Jackson's sister, lived at Slaughter's apartment. According to Tonya Jackson, Davon Jackson spent the night at the apartment on July 3, 2001, and remained there on July 4, 2001. She testified that on the evening of July 4, 2001, she, her cousins and their friends, and Jackson went to an arcade on Canal Street where they remained until approximately 3:00 a.m. She stated that Davon Jackson was with them when they walked back to her aunt's apartment.

         Patricia Arnolie lived next door to St. Pierre at the time of his murder. She recalled that when she left her house on July 4, 2001, sometime between 12:30 and 1:00 p.m., she saw St. Pierre on his roof pruning trees. Arnolie returned with her children sometime between 9:30 and 10:00 p.m. At that time, she saw St. Pierre's dogs running up and down in his yard. She stated that she had never seen them out running around like that. She stated that St. Pierre's dogs were not outside barking on the morning of July 5, 2001.

         Kenneth Leary, a firearms examiner with the New Orleans Police Department Crime Lab, examined two nine-millimeter cartridge casings and two nine-millimeter bullets recovered from the crime scene. Leary concluded that the casings and bullets were each fired from the same weapon and that the weapon was a Bryco Arms Jennings Model 9 nine-millimeter semi-automatic pistol.

         Jackson was tried by a jury on December 10, 2007, through December 14, 2007, and Jackson was found guilty as charged.[6] During the trial, jurors accompanied the Trial Judge to a meeting at the City Council Chamber where members of the Criminal Justice Leadership Alliance, including the Trial Judge and one of the prosecutors, spoke.[7] Later that afternoon, defense counsel objected to the jury's “field trip” and moved for a mistrial.[8] The Trial Court denied the motion.[9]

         The Trial Court denied Jackson's motion for new trial and post-judgment verdict of acquittal as well as his supplemental motion for mistrial and motion for new trial.[10] On January 2, 2008, the Trial Court sentenced Jackson to life imprisonment at hard labor without the benefit of parole, probation, or suspension of sentence.[11]

         On direct appeal, Jackson's appellate counsel asserted four errors[12]: (1) the Trial Court erred in admitting into evidence letters purportedly written by Jackson to the victim; (2) the Trial Court erred by taking the jury on a “field trip” during trial to a meeting at the New Orleans Council Chamber; (3) the Trial Court erred in denying Jackson's motion for mistrial based upon the prosecution's comment on his invocation of his right not to testify; and (4) the evidence of identity was insufficient to sustain Jackson's conviction. The Louisiana Fourth Circuit affirmed the conviction finding no merit in the issues raised on September 9, 2008.[13]

         On October 9, 2009, Jackson's counsel filed a writ application with the Louisiana Supreme Court.[14] On October 16, 2009, Jackson filed a pro se writ application.[15] On April 23, 2010, the Louisiana Supreme Court denied Jackson's writ applications without stated reasons.[16] His conviction was final under federal law ninety (90) days later, on July 22, 2010, when he did not file a writ application with the United States Supreme Court. Ott v. Johnson, 192 F.3d 510, 513 (5th Cir. 1999) (period for filing for certiorari with the United States Supreme Court is considered in the finality determination under 28 U.S.C. § 2244(d)(1)(A)); U.S. Sup. Ct. Rule 13(1)).

         On July 14, 2011, Jackson submitted pro se to the Trial Court an application for post-conviction relief and brief in which he raised the following grounds for relief[17]: (1) actual innocence; (2) denial of his right to due process and a fair trial when the Trial Judge took the jurors on a “field trip” to the City Council Chamber; (3) denial of effective assistance of counsel during a critical stage of the proceedings; (4) ineffective assistance of trial counseling in failing to (a) contemporaneously object to the “field trip”; (b) investigate and present impeachment evidence attacking the credibility of state witnesses; (c) effectively confront firearm testimony; (d) lodge critical objections; (e) move for a mistrial after the prosecutor's closing argument; (f) present mitigating evidence in support of a sentence less than life imprisonment; and (g) move for reconsideration of the excessive sentence; (5) his appellate counsel was ineffective in failing to (a) effectively present the issues assigned; and (b) raise other issues on appeal including violation of jury sequestration under La. Code Crim. P. art. 791, violation of the right to be present under La. Code Crim. P. art. 831(5), excessive sentence on appeal, non-unanimous verdict, and violation of right to poll the jury; (6) his sentence constituted cruel and unusual punishment; (7) the non-unanimous verdict violated his constitutional rights; and (8) newly discovered evidence.

         The Trial Court granted the State's procedural objections to claims one, six, seven, and eight.[18] Jackson filed a counseled writ application with the Fourth Circuit on December 17, 2012.[19]The Fourth Circuit denied relief finding the non-unanimous jury verdict claim to not be constitutionally valid, the excessive sentencing claim not to be a basis for post-conviction relief, the claim that new evidence undermined forensic expert testimony to be procedurally barred as not preserved for review, and the actual innocence claim as barred.[20] On September 27, 2013, the Louisiana Supreme Court did not consider Jackson's related writ application finding it untimely under La. S.Ct. Rule X § 5.[21]

         The Trial Court held a hearing on July 25, 2014, and denied the post-conviction application on August 21, 2015, finding Jackson's remaining claims to be without merit.[22] On January 26, 2016, the Louisiana Fourth Circuit denied Jackson's writ application.[23] Jackson filed an application for supervisory writs with the Louisiana Supreme Court in February 25, 2016.[24] On January 9, 2017, the Louisiana Supreme Court denied writs without stated reasons.[25]

         II. Federal Habeas Petition

         On January 10, 2017, Jackson filed a counseled petition for federal habeas corpus relief in which he asserts the following grounds for relief[26]: (1) actual innocence; (2) the juror “field trip” violated his rights to due process and a fair trial; (3) denial of effective assistance of counsel during a critical stage of the proceedings; (4) ineffective assistance of trial counsel; (5) ineffective assistance of appellate counsel; (6) excessive sentence; (7) non-unanimous verdict; and (8) newly discovered evidence.

         The State filed a response in opposition to the petition asserting that Jackson timely filed his federal petition.[27] The State asserts that four claims are not exhausted and are procedurally barred, and the remaining claims can be dismissed as meritless.

         III. General Standards of Review

         The Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), Pub. L. No. 104-132, 110 Stat. 1214, [28] applies to this petition, which is deemed filed in this Court on January 10, 2017. The threshold questions on habeas review under the amended statute are whether the petition is timely and whether the claim raised by the petitioner was adjudicated on the merits in state court; i.e., the petitioner must have exhausted state court remedies and the claims must not be in “procedural default.” Nobles v. Johnson, 127 F.3d 409, 419-20 (5th Cir. 1997) (citing 28 U.S.C. § 2254(b), (c)).

         The State concedes Jackson timely filed his federal petition and exhausted his claims enumerated as claims two, three, four, and five. The State contends that Jackson failed to exhaust his other four claims and that they are in technical procedural default. It contends that Jackson's remaining claims can be dismissed as meritless.[29]

         IV. Exhaustion Doctrine and Procedural Default

         “A fundamental prerequisite to federal habeas relief under § 2254 is the exhaustion of all claims in state court prior to requesting federal collateral relief.” Whitehead v. Johnson, 157 F.3d 384, 387 (5th Cir. 1998) (citing Rose v. Lundy, 455 U.S. 509, 519-20 (1982)); Nobles, 127 F.3d at 419. “A federal habeas petition should be dismissed if state remedies have not been exhausted as to all of the federal court claims.” Whitehead, 157 F.3d at 387 (citing 28 U.S.C. § 2254(b)(1)(A); Rose, 455 U.S. at 519-20).

         The well-established test for exhaustion requires that the substance of the federal habeas claim be fairly presented to the highest state court in a procedurally proper manner. Whitehead, 157 F.3d at 387 (citing Picard v. Connor, 404 U.S. 270, 275-78 (1971)). “[S]tate prisoners must give the state courts one full opportunity to resolve any constitutional issues by invoking one complete round of the State's established appellate review process, ” including discretionary review when that review is part of the State's ordinary appellate review procedures. O'Sullivan v. Boerckel, 526 U.S. 838, 845 (1999). “A federal court claim must be the ‘substantial equivalent' of one presented to the state courts if it is to satisfy the ‘fairly presented' requirement.” Whitehead, 157 F.3d at 387 (citing Picard, 404 U.S. at 275-78). “This requirement is not satisfied if the petitioner presents new legal theories or new factual claims in his federal application.” Id., 157 F.3d at 387 (citing Nobles, 127 F.3d at 420); Wilder v. Cockrell, 274 F.3d 255, 259 (5th Cir. 2001).

         For exhaustion purposes, it also is not enough for a petitioner to have raised the claims in the lower state courts if the claims were not specifically presented to the State's highest court, and vice versa. Baldwin v. Reese, 541 U.S. 27, 32 (2004). Furthermore, a petitioner does not fairly present a claim to the State's highest court if that court must read beyond the petition or brief, such as a lower court opinion, to find a claim not otherwise specifically raised. Id., 541 U.S. at 32.

         The record shows, and the State concedes, that Jackson (through counsel) exhausted state court review of the claims listed above as federal claims two, three, four and five. However, the record also reveals that Jackson has not exhausted state court review of the other claims and arguments raised.

         A review of the state court pleadings reflects that Jackson raised his claims of actual innocence (claim one), excessive sentence (claim six), non-unanimous verdict (claim seven), and newly discovered evidence (claim eight) in his application for post-conviction relief and in his writ application to the Fourth Circuit. His attempt to seek review in the Louisiana Supreme Court included these claims.

         However, Jackson's writ application to the Louisiana Supreme Court was not considered by the Court because it was not timely filed. It is clear that a claim presented in an untimely writ application has not been “fairly presented” for exhaustion purposes. See, e .g., Murphy v. Cooper, Civ. Action No. 12-1339, 2012 WL 5463864, at *5 (E.D. La. Oct. 1, 2012), adopted, 2012 WL 5463857 (E.D. La. Nov. 8, 2012) (citing Dupuy v. Butler, 837 F.2d 699, 702 (5th Cir.1988) (noting that a state court has a fair opportunity to pass upon a claim only if it is presented to the court in “a procedurally proper manner according to the rules of the state courts”)); Bias v. Wendom, Civ. Action No. 6:15-cv-0630, 2015 WL 4545142, at *6 (W.D. La. July 27, 2015) (petitioner failed to exhaust claims where his sole writ application to Louisiana Supreme Court was untimely and not properly filed), certificate of appealability denied, 15-30719 (5th Cir. June 14, 2016). As the United States Supreme Court has reiterated, when a pleading is untimely under state law, “that [is] the end of the matter” and the pleading was not properly filed. See Pace v. DiGuglielmo, 544 U.S. 408, 414 (2005). Therefore, these four claims - actual innocence, excessive sentence, non-unanimous verdict, and newly discovered evidence - were not presented to the Louisiana Supreme Court in a procedurally proper manner and cannot be considered to have been exhausted.

         Normally, the Court would recommend that Jackson's petition be dismissed without prejudice to allow him to pursue exhaustion of his claims in the appropriate state courts. However, unexhausted claims, those claims which were not “fairly presented” to the state courts, may be considered “technically” exhausted if the habeas petitioner is now prohibited from litigating those claims in the state courts because of some procedural rule. If that is so, then those “technically” exhausted habeas claims might be considered procedurally defaulted.

         If a claim has not been adjudicated on the merits in state court, federal review of that claim may be barred by the doctrine of procedural default if the petitioner has failed to meet state procedural requirements for presenting his federal claims, thereby depriving the state courts of an opportunity to address those claims in the first instance. See Cone v. Bell, 556 U.S. 449, 465 (2009) (noting that, “[w]hen a petitioner fails to properly raise his federal claims in state court, he deprives the State of ‘an opportunity to address those claims in the first instance' and frustrates the State's ability to honor his constitutional rights”) (quoting Coleman v. Thompson, 501 U.S. 722, 732 (1991)). When state court remedies are rendered unavailable by the petitioner's own procedural default, federal courts are normally barred from reviewing those claims. See Coleman, 501 U.S. at 722. “[I]f the petitioner failed to exhaust state remedies and the court to which petitioner would be required to present his claims in order to meet the exhaustion requirement would now find the claims procedurally barred, ... [then] there is a procedural default for purposes of federal habeas ...” Id., at 735 n. 1.

         A petitioner has “technically exhausted” his claims if he fails to properly and timely present them to each level of the Louisiana courts and thereafter would be barred from seeking relief in those courts. Magouirk v. Phillips, 144 F.3d 348, 358 (5th Cir. 1998) (citing Coleman, 501 U.S. at 731-33 and Sones v. Hargett, 61 F.3d 410, 416 (5th Cir. 1995)); Fuller v. Johnson, 158 F.3d 903, 905-06 (5th Cir. 1998). In such a case, there is no difference between non-exhaustion and procedural default. Magouirk, 144 F.3d at 358. Accordingly, when a petitioner fails to exhaust state court remedies because he has allowed his federal claims to lapse, those claims are “technically” procedurally defaulted and may be dismissed. Id.

         In this case, it is reasonable to conclude that Jackson is now unable to litigate claims one, six, seven and eight in the Louisiana courts, and that any attempt to litigate these claims would result in dismissal on state procedural grounds. Based on the record and the fact that he has already had a prior post-conviction application in the state courts, any attempt to litigate these claims now would likely be dismissed as repetitive under La. Code Crim. P. art. 930.4(D) or (E)[30] or as time- barred by the provisions of La. Code Crim. P. art. 930.8.[31] Therefore, the claims are now considered procedurally defaulted. Sones, 61 F.3d at 416 (citing Steele v. Young, 11 F.3d 1518, 1524 (10th Cir. 1993)). The procedural default doctrine bars federal habeas corpus review if the state courts would now refuse to address a habeas petitioner's unexhausted federal claims because litigation of those claims would be barred by state procedural rules.

         Federal habeas review of a “technically” exhausted and now procedurally defaulted claim is barred “... unless the prisoner can demonstrate cause for the default and actual prejudice as result of the alleged violation of federal law, or demonstrate that failure to consider the claims will result in a fundamental miscarriage of justice.” Coleman, 501 U.S. at 750-51.

         To establish cause for a procedural default, a petitioner must demonstrate that some objective factor external to the defense impeded his efforts to comply with the state's procedural rule. Murray v. Carrier, 477 U.S. 478, 488 (1986). The mere fact that a petitioner or his counsel failed to recognize the factual or legal basis for a claim, or failed to raise the claim despite recognizing it, does not constitute cause for a procedural default. Id. at 486.

         In this case, Jackson has not offered any cause for the default which would excuse the procedural bar imposed by the Louisiana Supreme Court. The Court's review of the record does not support a finding that any factor external to the defense prevented Jackson from raising the claims in a procedurally proper manner. The record also does not reflect any action or inaction on the part of the State which prevented him from doing so.

         “The failure to show ‘cause' is fatal to the invocation of the ‘cause and prejudice' exception, without regard to whether ‘prejudice' is shown.” Hogue v. Johnson, 131 F.3d 466, 497 (5th Cir. 1997) (citing Engle v. Isaac, 456 U.S. 1707, 134 n.43 (1982)). Having failed to show an objective cause for his default, the Court need not determine whether prejudice existed, and petitioner has not alleged any actual prejudice. Ratcliff v. Estelle, 597 F.2d 474, 477 (5th Cir. 1979) (citing Lumpkin v. Ricketts, 551 F.2d 680, 681-82 (5th Cir. 1977)).

         Jackson's defaulted arguments are therefore procedurally barred from review by this federal habeas corpus court. See Trest v. Whitley, 94 F.3d 1005, 1008 (5th Cir. 1996) (finding habeas review precluded when petitioner neglected to allege actual prejudice and cause of failure to comply with state procedural rule concerning time restriction on filing for state post-conviction relief), vacated on other grounds, 522 U.S. 87 (1998).[32]

         Jackson may avoid this procedural bar only if a fundamental miscarriage of justice will occur if the merits of his claim are not reviewed. Hogue, 131 F.3d 497 (citing Sawyer v. Whitley, 505 U.S. 333, 339 (1992)). To establish a fundamental miscarriage of justice, Jackson must provide this court with evidence that would support a “colorable showing of factual innocence.” Kuhlmann v. Wilson, 477 U.S. 436, 454 (1986); accord Murray, 477 U.S. at 496; Glover v. Cain, 128 F.3d 900, 902 (5th Cir. 1997). To satisfy the factual innocence standard, Petitioner must establish a fair probability that, considering all of the evidence now available, the trier of fact would have entertained a reasonable doubt as to the defendant's guilt. Campos v. Johnson, 958 F.Supp. 1180, 1195 (W.D. Tex. 1997) (footnote omitted); see Nobles, 127 F.3d at 423 n.33 (actual innocence factor requires a showing by clear and convincing evidence that, “but for constitutional error, no reasonable factfinder would have found the applicant guilty of the underlying offense.”).

         The Court recognizes that Jackson has raised a claim of actual innocence (claim one) as an independent substantive ground for habeas relief. However, the United States Supreme Court has not recognized any free-standing actual innocence claim to support habeas relief. McQuiggin v. Perkins, 569 U.S. 383, 392 (2013) (citing Herrera, 506 U.S. at 404-05); Coleman v. Thaler, 716 F.3d 895, 908 (5th Cir. 2013); Burton v. Stephens, 543 F. App'x 451, 458 (5th Cir. 2013) (citing McQuiggin, 569 U.S. at 392 and Herrera, 506 U.S. at 400); In re Warren, 537 F. App'x 457 (5th Cir. 2013). The Supreme Court, however, has recognized that a credible showing of actual innocence may act as a gateway to overcome a procedurally defaulted or untimely filed federal habeas corpus claim. McQuiggin, 569 U.S. at 392. Because there is no underlying constitutional violation in Jackson's actual innocence claim (claim one), it is not cognizable.

         Under a broad reading, Jackson may intend for the Court to consider his arguments as related to the actual innocence exception to the state imposed procedural bar to review of his federal habeas claims of excessive sentence, non-unanimous jury, and newly discovered evidence. Nevertheless, Jackson has not met the rigorous burden of proof imposed under the actual innocence exception to excuse his procedural default of those claims.

         The actual innocence standard encompasses three principles. First, a “credible [actual innocence] claim requires new reliable evidence-whether it be exculpatory scientific evidence, trustworthy eyewitness accounts, or critical physical evidence-that was not presented at trial.” House v. Bell, 547 U.S. 518, 537 (2006) (quoting Schlup v. Delo, 513 U.S. 298, 324 (1995)). The United States Fifth Circuit Court of Appeals has held that evidence is “not ‘new' [when] it was always within the reach of [petitioner's] personal knowledge or reasonable investigation.” Moore v. Quarterman, 534 F.3d 454, 465 (5th Cir. 2008). Second, the court's analysis is not limited to the new evidence presented by a petitioner in support of his actual innocence claim. Id. “The habeas court must consider all the evidence, old and new, incriminating and exculpatory, without regard to whether it would necessarily be admitted under rules of admissibility that govern at trial.” Bell, 547 U.S. at 538 (quoting Schlup, 513 U.S. at 327). In doing so, the court “must assess the probative force of the newly presented evidence in connection with the evidence of guilt adduced at trial.” Schlup, 513 U.S. at 331-32. Third, the “demanding” actual innocence standard “permits review only in the extraordinary case.” Bell, 547 U.S. at 538 (citation omitted); see also Fairman v. Anderson, 188 F.3d 635, 644 (5th Cir. 1999) (“[O]ur precedent confirms that the mountain ... a petitioner must scale in order to prove a fundamental miscarriage claim is daunting indeed.”).

         Jackson attempts to make a colorable showing of factual innocence by pointing to the 2009 report from the National Academy of Sciences, Strengthening Forensic Science in the United States: A Path Forward, calling into question the ability of toolmark analysis to individuate shell casings. Jackson claims the report undermines Leary's testimony that the bullets and casings from the crime scene came from the firearm found during a search of the vehicle Jackson was driving on July 11, 2001. He also attacks the credibility of Cassandra Jackson, as he did at trial, and claims that he was celebrating with his family on July 4, 2001.

         The report is not newly discovered evidence. Spear v. Ryan, No. CV-00-01051-PHX-SMM, 2016 WL 6699681, at *3-5 (D. Ariz. Nov. 15, 2016) (citing Rues v. Denney, No. 5:09-CV- 06056-DGK, 2010 WL 1729181, at *2 (W.D. Miss. April 29, 2010) (“As a threshold matter the February 18, 2009 report does not constitute newly discovered evidence. While this particular report may be new, the arguments it advances are not. The gist of the report-that forensic methodologies have not been sufficiently studied in peer reviewed journals to be accepted as scientifically accurate-is not new.”), aff'd, 643 F.3d 618, 620 (8th Cir. 2011)).

         Further, the report is insufficient, when considered in light of all of the evidence presented at trial, to show that it is more likely than not that no reasonable juror would have convicted Jackson. The uncontested evidence demonstrated that Jackson and St. Pierre had a heated argument on July 3, 2001.[33] There was evidence that Jackson was at St. Pierre's house for thirty minutes to an hour on July 4, 2001, and that he left the house carrying a black bag, which he threw in a dumpster.[34] There was uncontroverted evidence that Jackson admitted to Kennedy that he committed the murder and that Jackson showed Kennedy two nine-millimeter firearms which he offered to sell him.[35] Additionally, a nine-millimeter firearm was found during a traffic stop of the vehicle Jackson was driving.[36] That vehicle was the same vehicle that Cassandra Jackson used to take Jackson to St. Pierre's house on July 4, 2001.[37]

         While Jackson presented alibi evidence at trial, that evidence was inconsistent. For instance, Cassandra Jackson testified that Jackson spent the night with her on July 3, 2001, while Slaughter and Tonya Jackson testified that he spent the night at Slaughter's apartment.[38]Additionally, while Tonya Jackson claimed that Davon Jackson returned to the apartment with her in the early morning of July 5, 2001, Davon Jackson told detectives that he went to his grandmother's house.[39] Jackson's attack on the credibility of Cassandra Jackson along with his argument of innocence were presented to the jury and the state courts and resolved against him. For these reasons, Jackson's assertion of actual innocence is not sufficient to meet his burden of establishing that it would be a fundamental miscarriage of justice to fail to consider his claims. He, therefore, has failed to overcome the procedural bar to his claims. The claims of excessive sentence (claim six), non-unanimous jury (claim seven), and newly discovered evidence (claim eight) are procedurally barred and should be dismissed with prejudice.

         V. Standards for a Merits Review

         The AEDPA standard of review is governed by § 2254(d) and the Supreme Court's decision in Williams v. Taylor, 529 U.S. 362 (2000). It provides different standards for questions of fact, questions of law, and mixed questions of fact and law.

         A state court's determinations of questions of fact are presumed correct and the Court must give deference to the state court findings unless they were based on an unreasonable determination of the facts in light of the evidence presented in the state court proceeding. 28 U.S.C. § 2254(d)(2) (2006); see Hill v. Johnson, 210 F.3d 481, 485 (5th Cir. 2000). The amended statute also codifies the “presumption of correctness” that attaches to state court findings of fact and the “clear and convincing evidence” burden placed on a petitioner who attempts to overcome that presumption. 28 U.S.C. § 2254(e)(1) (2006).

         A state court's determination of questions of law and mixed questions of law and fact are reviewed under § 2254(d)(1), as amended by the AEDPA. The standard provides that deference be given to the state court's decision unless the decision is “contrary to or involves an unreasonable application of clearly established federal law” as determined by the United States Supreme Court. Hill, 210 F.3d at 485. The “critical point” in determining the Supreme Court rule to be applied “is that relief is available under § 2254(d)(1)'s unreasonable-application clause if, and only if, it is so obvious that a clearly established rule applies to a given set of facts that there could be no ‘fairminded disagreement' on the question.” White v. Woodall, __ U.S. __, 134 S.Ct. 1697, 1706-07 (2014) (citing Harrington v. Richter, 562 U.S. 86, 103 (2011)). “Thus, ‘if a habeas court must extend a rationale before it can apply to the facts at hand, ' then by definition the rationale was not ‘clearly established at the time of the state-court decision.'” White, 134 S.Ct. at 1706 (quoting Yarborough v. Alvarado, 541 U.S. 652, 666 (2004)).

         A state court's decision can be “contrary to” federal law if: (1) the state court arrives at a conclusion opposite to that reached by the Supreme Court on a question of law; or (2) the state court decides a case differently than the Supreme Court has on a set of materially indistinguishable facts. Williams, 529 U.S. at 405-06, 412-13; Penry v. Johnson, 532 U.S. 782, 792-93 (2001); Hill, 210 F.3d at 485. A state court's decision can involve an “unreasonable application” of federal law if it correctly identifies the governing rule but then applies it unreasonably to the facts. White, 134 S.Ct. at 1706-07; Williams, 529 U.S. at 406-08, 413; Penry, 532 U.S. at 792.

         The Supreme Court in Williams did not specifically define “unreasonable” in the context of decisions involving unreasonable applications of federal law. See Williams, 529 U.S. at 410. The Court, however, noted that an unreasonable application of federal law is different from an incorrect application of federal law. Id. “‘[A] federal habeas court may not issue the writ simply because that court concludes in its independent judgment that the state-court decision applied [a Supreme Court case] incorrectly.'” Price v. Vincent, 538 U.S. 634, 641 (2003) (quoting Woodford v. Visciotti, 537 U.S. 19, 24-25 (2002)) (brackets in original); Bell v. Cone, 535 U.S. 685, 699 (2002)).

         Thus, under the “unreasonable application” determination, the Court need not determine whether the state court's reasoning is sound, rather “the only question for a federal habeas court is whether the state court's determination is objectively unreasonable.” Neal v. Puckett, 286 F.3d 230, 246 (5th Cir. 2002). The burden is on the petitioner to show that the state court applied the precedent to the facts of his case in an objectively unreasonable manner. Price, 538 U.S. at 641 (quoting Woodford, 537 U.S. at 24-25); Wright v. Quarterman, 470 F.3d 581, 585 (5th Cir. 2006). In addition, review under § 2254(d)(1) is limited to the record before the state court that adjudicated the claim on the merits. Cullen v. Pinholster, 563 U.S. 170, 181 (2011).

         VI. Unfair Trial/Tainted Jury (Claim No. 2)

         Jackson claims his rights to due process and a fair trial by an impartial jury were denied when the Trial Judge took the jury on a “field trip” to a City Council Chamber where members of the Criminal Justice Leadership Alliance spoke to the Criminal Justice Committee of the City Council about the progress made in implementing recommendations of the Vera Institute of Justice. Various representatives from the criminal justice system, including both the Trial Judge and the chief prosecutor, spoke about criminal justice issues including the need to focus resources on violent crimes. Jackson claims that the City Council meeting injected extraneous influences of social issues into the jury's purview and caused the verdict to be influenced by circumstances other than the evidence presented at trial.

         Jackson raised this issue on direct appeal to the Fourth Circuit. The Fourth Circuit found that, while there were a few references to the time it takes to go to trial in cases involving violent crimes and the effect of violent crimes on the city, the meeting focused on alternatives to incarceration for non-violent offenders and a pilot program to expedite certain cases through the court system. The Fourth Circuit found that the Trial Judge's comments during the City Council hearing, which it explained focused on the use of alternatives to prevent crime and minimize the cost of incarceration, did not constitute comments on the facts of the case or a charge to the jury and were not in violation of La. Code Crim. P. art. 772 or art. 806. It further found that taking the jury to the meeting did not violate La. Code Crim. P. art. 762, as the meeting was not a session of the court. Finally, the Fourth Circuit found that Jackson failed to show that the jurors' attendance at the meeting provided them with prejudicial information that contributed to the verdict and, as a result, the Trial Court did not err in denying Jackson's motion for mistrial and motion for new trial.[40]

         Jackson raised the issue again in his application for post-conviction relief. The Trial Court held a hearing at which the Trial Judge testified.[41] In in denying relief, the Trial Court noted the Fourth Circuit's previous ruling and found that, “Based on the showing made, this court is not convinced that any error that may have arisen as a result of the jurors attending the City Council hearing conducted on December 12, 2007, surely contributed to the verdict.”[42] This was the last reasoned opinion on the issue. Ylst v. Nunnemaker, 501 U.S. 797, 802 (1991) (when the last state court judgment does not indicate whether it is based on procedural default or the merits of a federal claim, the federal court will presume that the state court has relied upon the same grounds as the last reasoned state court opinion).

         The Due Process Clause guarantees an accused the right to an impartial jury that will determine guilt based on the evidence and the law as instructed, rather than on preconceived notions or extraneous information. Morgan v. Illinois, 504 U.S. 719, 726-27 (1992); Patton v. Yount, 467 U.S. 1025, 1037 n.12 (1984). “[T]he Supreme Court has clearly established a constitutional rule forbidding a jury from being exposed to an external influence.” Oliver v. Quarterman, 541 F.3d 329, 336 (5th Cir. 2008). The Court has long held that “[p]rivate communications, possibly prejudicial, between jurors and third persons, or witnesses, or the officer in charge, are absolutely forbidden, and invalidate the verdict, at least unless their harmlessness is made to appear.” Mattox v. United States, 146 U.S. 140, 150 (1892). The Court later restated the rule and elaborated on the presumption of prejudice arising from an outside influence:

In a criminal case, any private communication, contact, or tampering directly or indirectly, with a juror during a trial about the matter pending before the jury is, for obvious reasons, deemed presumptively prejudicial, if not made in pursuance of known rules of the court and the instructions and directions of the court made during the trial, with full knowledge of the parties. The presumption is not conclusive, but the burden rests heavily upon the Government to ...

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