United States District Court, E.D. Louisiana
LLOYD A. BARNES
DARRYL VANNOY, WARDEN
REPORT AND RECOMMENDATION
VAN MEERVELD, UNITED STATES MAGISTRATE JUDGE
matter was referred to this United States Magistrate Judge
for the purpose of conducting a hearing, including an
evidentiary hearing, if necessary, and submission of proposed
findings of fact and recommendations for disposition 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 in the
United States District Courts. Upon review of the record, the
Court has determined that this matter can be disposed of
without an evidentiary hearing. See 28 U.S.C. §
2254(e)(2). Therefore, for all of the following reasons,
IT IS RECOMMENDED that the petition be
DISMISSED WITH PREJUDICE.
Lloyd A. Barnes, is a state prisoner incarcerated at the
Louisiana State Penitentiary in Angola, Louisiana. On
December 1, 2010, he was convicted of one count of attempted
second degree murder and one count of second degree
murder. On February 4, 2011, he was sentenced on
the attempted second degree murder conviction to a term of
thirty years imprisonment and on the second degree murder
conviction to a concurrent term of life
imprisonment. On September 19, 2012, the Louisiana
Fourth Circuit Court of Appeal affirmed his convictions and
sentences. The Louisiana Supreme Court then denied
his related writ application on April 1, 2013.
about December 10, 2013, petitioner filed an application for
post-conviction relief with state district
court. That application was denied on February
14, 2014. His related writ applications were then
likewise denied by the Louisiana Fourth Circuit Court of
Appeal on April 15, 2014,  and by the Louisiana Supreme Court on
October 28, 2016.
March 7, 2017, petitioner filed the instant federal
application seeking habeas corpus relief. The state does
not challenge the timeliness of the
Standards of Review
Antiterrorism and Effective Death Penalty Act of 1996
(“AEDPA”) comprehensively overhauled federal
habeas corpus legislation, including 28 U.S.C. § 2254.
Amended subsections 2254(d)(1) and (2) contain revised
standards of review for pure questions of fact, pure
questions of law, and mixed questions of both. The amendments
“modified a federal habeas court's role in
reviewing state prisoner applications in order to prevent
federal habeas ‘retrials' and to ensure that
state-court convictions are given effect to the extent
possible under law.” Bell v. Cone, 535 U.S.
685, 693 (2002).
pure questions of fact, factual findings are presumed to be
correct and a federal court will give deference to the state
court's decision unless it “was 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); see also 28 U.S.C. §
2254(e)(1) (“In a proceeding instituted by an
application for a writ of habeas corpus by a person in
custody pursuant to the judgment of a State court, a
determination of a factual issue made by a State court shall
be presumed to be correct. The applicant shall have the
burden of rebutting the presumption of correctness by clear
and convincing evidence.”).
pure questions of law and mixed questions of law and fact, a
federal court must defer to the state court's decision on
the merits of such a claim unless that decision “was
contrary to, or involved an unreasonable application of,
clearly established Federal law, as determined by the Supreme
Court of the United States.” 28 U.S.C. §
2254(d)(1). Courts have held that the “‘contrary
to' and ‘unreasonable application' clauses [of
§ 2254(d)(1)] have independent meaning.”
Bell, 535 U.S. at 694.
the “contrary to” clause, the United States Fifth
Circuit Court of Appeals has explained:
A state court decision is contrary to clearly established
precedent if the state court applies a rule that contradicts
the governing law set forth in the [United States] Supreme
Court's cases. A state-court decision will also be
contrary to clearly established precedent if the state court
confronts a set of facts that are materially
indistinguishable from a decision of the [United States]
Supreme Court and nevertheless arrives at a result different
from [United States] Supreme Court precedent.
Wooten v. Thaler, 598 F.3d 215, 218 (5th Cir. 2010)
(internal quotation marks, ellipses, brackets, and footnotes
the “unreasonable application” clause, the United
States Supreme Court has held: “[A] state-court
decision is an unreasonable application of our clearly
established precedent if it correctly identifies the
governing legal rule but applies that rule unreasonably to
the facts of a particular prisoner's case.”
White v. Woodall, 134 S.Ct. 1697, 1706 (2014).
However, the Supreme Court cautioned:
Section 2254(d)(1) provides a remedy for instances in which a
state court unreasonably applies this Court's precedent;
it does not require state courts to extend that precedent or
license federal courts to treat the failure to do so as
error. 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. AEDPA's carefully constructed
framework would be undermined if habeas courts introduced
rules not clearly established under the guise of extensions
to existing law.
Id. (citations and quotation marks omitted).
Therefore, when the Supreme Court's “cases give no
clear answer to the question presented, let alone one in [the
petitioner's] favor, it cannot be said that the state
court unreasonably applied clearly established Federal
law.” Wright v. Van Patten, 552 U.S. 120, 126
(2008) (quotation marks and brackets omitted). The Supreme
Court has also expressly cautioned that “an
unreasonable application is different from an incorrect
one.” Bell, 535 U.S. at 694. Accordingly, a
state court's merely incorrect application of Supreme
Court precedent simply does not warrant habeas relief.
Puckett v. Epps, 641 F.3d 657, 663 (5th Cir. 2011)
(“Importantly, ‘unreasonable' is not the same
as ‘erroneous' or ‘incorrect'; an
incorrect application of the law by a state court will
nonetheless be affirmed if it is not simultaneously
the AEDPA standards of review are strict and narrow, they are
purposely so. As the United States Supreme Court has held:
[E]ven a strong case for relief does not mean the state
court's contrary conclusion was unreasonable.
If this standard is difficult to meet, that is because it was
meant to be. As amended by AEDPA, § 2254(d) stops short
of imposing a complete bar on federal court relitigation of
claims already rejected in state proceedings. It preserves
authority to issue the writ in cases where there is no
possibility fairminded jurists could disagree that the state
court's decision conflicts with this Court's
precedents. It goes no farther. Section 2254(d) reflects the
view that habeas corpus is a guard against extreme
malfunctions in the state criminal justice systems,
not a substitute for ordinary error correction through
appeal. As a condition for obtaining habeas corpus from a
federal court, a state prisoner must show that the state
court's ruling on the claim being presented in federal
court was so lacking in justification that there was an error
well understood and comprehended in existing law beyond any
possibility for fairminded disagreement.
Harrington v. Richter, 562 U.S. 86, 102-03 (2011)
(citations omitted; emphasis added); see also
Renico v. Lett, 559 U.S. 766, 779 (2010)
(“AEDPA prevents defendants - and federal courts - from
using federal habeas corpus review as a vehicle to
second-guess the reasonable decisions of state
Supreme Court has expressly warned that although “some
federal judges find [28 U.S.C. § 2254(d)] too confining,
” it is nevertheless clear that “all federal
judges must obey” the law and apply the strictly
deferential standards of review mandated therein. White
v. Woodall, 134 S.Ct. 1697, 1701 (2014).
instant case, petitioner was indicted for the second degree
murder of Korey “Project” Griffin and the
attempted second degree murders of Griffin's friends,
Clayton Burds and Robert Dilbert. At trial, the jury found
petitioner guilty of the second degree murder of Griffin and
the attempted second degree murder of Burds; however, it
found him not guilty of the attempted second degree murder of
Dilbert. On direct appeal, the Louisiana Fourth Circuit Court
of Appeal summarized the evidence adduced at trial as
Officer Micheleen Scott of the New Orleans Police Department
(NOPD) testified that on October 18, 2009, she investigated
an auto collision at Washington Avenue and LaSalle Street.
The occupants of one of the vehicles, Griffin and Burds, had
both sustained gunshot wounds but were able to communicate
with her at the scene. Burds gave Officer Scott a narrative
of the shooting and the vehicle accident, describing the
shooter as a male approximately six feet tall wearing grey
sweatpants. Officer Scott wrote the initial report of the
collision, noting that no weapons were found in or near the
Officer Shandrell Privott of the NOPD crime lab processed the
collision scene and photographed a maroon car and
Griffin's silver Chevy Malibu. The officer recalled that
the back passenger window of the Malibu was shattered and
that the car's airbags had deployed. While the front seat
of the Malibu contained blood spots, the only other evidence
- a spent bullet - was found in the back seat.
Detective Tim Sison of the NOPD assumed the investigation of
the auto collision from Officer Micheleen Scott. Detective
Sison learned that the collision was related to a shooting in
the 2000 block of Second Street and, at the time of the
collision, the Malibu was traveling north on Washington
Avenue, against traffic, when it collided with a parked car.
The occupants of the Malibu had been removed and placed in
separate EMS units for transport to University Hospital.
Sison's cursory inspection of the vehicle indicated that
no weapons were found in or near the vehicle. Detective Sison
relocated to University Hospital and obtained a description
of the shooter from Burds but was able to speak with the
Griffin very briefly. In addition to explaining the events
leading to the shooting, Griffin and Burds gave a description
of their assailant. Detective Sison collected, labeled and
placed the blood stained clothing worn by Griffin and Burds
into Central Evidence. Upon returning to the hospital the
next day, Detective Sison learned that Burds had been
released but that Griffin had died during surgery. Upon the
Griffin's death, Detective Sison transferred the
investigation to the NOPD homicide division.
Under cross examination, Detective Sison related that Burds
described the shooter as being about six feet tall and
wearing gray sweat pants.
Homicide Detective Robert Long of the NOPD assumed the
investigation from Detective Sison, who provided him the
names and contact information for the decedent's family.
The day after the shooting, Long met with the decedent's
mother, Ms. Patricia Griffin, who gave him a gist of the
shooting incident. She also provided contact phone numbers
for Burds and Dilbert. Detective Long also retrieved a
deformed projectile from the hospital. According to Detective
Long, Burds and Dilbert had described the shooter in
statements to Detective Sison as a bald, older male with
missing teeth and a stocky build who was wearing a white tee
shirt and gray sweat pants. Pursuant to his conversation with
Burds and Dilbert, Detective Long relocated to the house
where the shooting had purportedly occurred and spoke to
“Carolyn, ” who was said to be associated with
Subsequently, on October 20, 2009, Detective Long executed a
search warrant at 2023 Second Street, the residence of Ms.
Carolyn Lofton and the defendant. He transported Ms. Lofton
and the defendant to the homicide office to interview them.
Based upon Ms. Lofton's revelation that she was an
eyewitness to the shooting, Detective Long obtained a warrant
for the defendant's arrest. Detective Long identified the
photo lineups from which Burds and Dilbert identified the
defendant as the man who shot and killed the victim.
Officer Kathy Robertson, the 911 communications supervisor of
the New Orleans Police Department (NOPD), testified that all
911 calls are recorded, documented by date, time and location
of the incident, and assigned an incident item number that is
referenced to the investigation of the incident reported.
Officer Robertson listened to a portion of a tape recording
and identified it as the 911 call reporting the shooting in
Pathologist Dr. Richard Tracy performed the autopsy on the
decedent's body. Dr. Tracy explained that the decedent
sustained three gunshots to the back of his body. The bullet
that caused his death entered his back, traveled to his
abdomen and passed through major blood vessels, causing him
to bleed to death. Dr. Tracy opined that even though the
wound was fatal, the decedent could have remained conscious
for about a minute before passing out. According to Dr.
Tracy, two of the gunshot wounds were consistent with the
victim being shot while he was on the ground.
Dilbert related that on the day that Griffin was killed,
Griffin and Burds met him at his house at about 7:00 a.m.
Griffin was driving a Chevy Malibu, and Burds and Dilbert
rode as passengers in the front and rear seats, respectively.
The three drove around the central city area smoking
marijuana and then decided to stop at a residence in the 2000
block of Second Street. Burds and Dilbert remained in the car
while Griffin went inside for about five minutes. According
to Dilbert, Griffin was irate when he returned to the car,
demanding an apology from someone in the residence. Dilbert
and Burds decided to return to the residence with Griffin.
They approached the house by walking in the street. None of
them entered the front yard of the residence, nor did they go
onto the steps or the porch of the residence. Dilbert stated
that they were unarmed and had no weapons in the Malibu. A
few moments after they arrived at the residence, the
defendant and Carolyn Lofton exited the front door arguing.
When Ms. Lofton saw Griffin, she explained to the defendant
that he was a “regular.” Still irate, Griffin
demanded an apology from the defendant, who refused to
apologize and began shooting at them. Dilbert turned and ran
down Danneel Street to Washington Avenue.
Dilbert related the specifics of the shooting to Detective
Long and identified the defendant from a photo lineup as the
Under cross-examination, Dilbert denied that he, Griffin and
Burds got together that day to buy or sell drugs. He also
said that the first shot the defendant fired hit Burds.
Burds testified that he and Griffin arrived in the city
around 6:00 p.m. on the day before the shooting and sold
drugs all night at Ms. Lofton's Second Street residence.
The next morning, Burds, Griffin, and Dilbert met in the
mid-city area. Burds stated that they were not armed that
day. They rode around the uptown area, purchased marijuana
and then returned to Ms. Lofton's residence on Second
Street. Griffin entered the residence while he and Dilbert
remained in the car. A few moments later, Griffin returned to
the car and said: “Nigger up in there tripping.”
Just then, the defendant and Carolyn Lofton exited the house
and stood on the porch. Ms. Lofton asked Griffin what was
going on and he responded that he wanted an apology from the
defendant. The defendant refused to apologize and said:
“I ain't apologizing for shit. That shit
dead.” Neither Burds, Dilbert nor Griffin entered the
yard or went to the door of the residence. Immediately after
Ms. Lofton explained to the defendant that she knew Griffin,
the defendant shot Burds in the leg. Burds and Griffin ran
toward Saratoga Street while Dilbert ran in the opposite
direction. The defendant chased Burds and Griffin on foot.
Burds made it into the parked Malibu but the defendant fired
at the Malibu shattering the back window and hitting Burds in
the back. Then the defendant chased and shot Griffin. As
Griffin lay on the ground, the defendant stood over him and
continued to shoot. Burds tried to run over the defendant
with the Malibu, but the defendant ran into the Second Street
residence. Griffin got into the Malibu's driver's
seat and drove while Burds called 911. Burds passed out as he
contacted the 911 operator but awoke when he heard the
operator's voice. Griffin was able to drive the Malibu
for a few blocks before he passed out and collided with a
parked vehicle. Burds spoke to detectives at the hospital and
he identified the defendant from a photo lineup as the
shooter. Burds stated that Griffin was not a violent person
and never carried a gun.
In 1999, Sergeant Jimmie Turner investigated a shooting in
the 3200 block of General Ogden Street. Sergeant Turner spoke
to the victim, Cornelius Wells, who identified the defendant
as his assailant. Wells identified the defendant from a photo
lineup. Cornelius Wells testified that the defendant shot him
in the arm, back, leg and stomach on May 13, 1999, on General
Ogden Street. He explained that a man gave him money to buy
drugs for him, but Wells failed to return with the drugs. The
man later tracked him down, and the defendant shot him.
The State and defense stipulated that if Officer Kenneth
Leary were called to testify, he would be qualified as an
expert in the area of ballistics and firearms examination and
identification. He would testify that the bullet recovered
from the vehicle collision scene and the bullet recovered
during the victim's autopsy were consistent with .45
caliber class ammunition and were fired from the same weapon.
Detective Long was called by the defense and stated that
neither the victim, Burds or Dilbert told him they were drug
Ms. Carolyn Lofton testified for the defense that, through
his friendship with her son, she had known
“Project” for years. On the morning of the
shooting, she was sleeping in her residence on Second
Street[FN 1] when Griffin arrived. She awoke to an argument
between the defendant and Griffin over Griffin entering her
house while she slept. Ms. Lofton quelled the confrontation
and told Griffin to leave. As Griffin was leaving, he warned
the defendant that he better not go outside that day. Ms.
Lofton locked the door behind Griffin but then had to open it
to allow the defendant to leave. When she reopened the door,
Griffin and two of his friends were approaching her
residence. Griffin pointed the defendant out to his friends
and said: “That's him ... [h]e's going to
apologize to me.” Ms. Lofton stood on the porch and the
defendant stood behind her. She feared that Griffin and his
friends had come to “jump” the defendant.
Although she warned them not to come into her yard, one of
Griffin's friends jumped on the porch and swung at the
defendant. As the other friend entered the gate, Ms. Lofton
heard a gunshot but did not know where it came from. Burds
fell off the porch and they all ran away. According to Ms.
Lofton, she went back to sleep. Under cross-examination, Ms.
Lofton admitted that she told the police that the gunshot
came from behind her.
[FN 1] In closing argument, the prosecutor referenced Ms.
Lofton's residence as “a crack house ... a straight
up crack house.” (Tr. trans. p. 764).
The defendant testified that his name was Lloyd Bornes,
though his name is sometimes incorrectly spelled
“Barnes.” He admitted to having criminal
convictions - 1985 simple robbery; 2006 and 2007 assaults;
2008 evading arrest and criminal trespassing. At the time of
the shooting, the defendant was living with Ms. Lofton at
2023 Second Street. He testified that there was no buying or
selling of drugs at the residence. The defendant's usual
daily routine was to have coffee with his friend, Mr. Duey,
in the morning and then go to his mother's house.
Typically, at the end of the day, he returned to the Second
The defendant recalled that about 7:30 a.m. on the day of the
shooting, he was preparing to have his morning coffee with
Mr. Duey when Griffin knocked at the door asking for
“moms”, the name given Ms. Lofton by her children
and their friends. The defendant advised Griffin that Ms.
Lofton was asleep and suggested that he come back later but
Griffin demanded that he wake her up. The defendant refused
and a verbal confrontation erupted. The defendant walked to
the back of the house and called to Ms. Lofton. As the
defendant turned around, he discovered that Griffin had
followed him to Ms. Lofton's bedroom. The defendant
admonished Griffin for his disrespectful behavior, to which
Griffin responded: “F--- you.” Just then, Ms.
Lofton appeared asking what the loud talking was about. The
defendant explained the situation to her. Ms. Lofton told
Griffin to leave and, as he did so, he said to the defendant:
“Just for that, you can't come outside
today.” Griffin told Ms. Lofton: “That nigger
gonna apologize. He don't know me.” Ms. Lofton
closed the door. Moments later, she noticed Griffin and two
of his friends coming to the house. Griffin climbed the front
steps and Burds jumped onto the porch. Dilbert remained at
the front gate. Griffin stood directly in front of Ms. Lofton
and swung at the defendant. The defendant shot Burds out of
fear for his and Ms. Lofton's safety. Then the defendant
shot Griffin as he ran away and continued to shoot until his
gun was empty. Griffin and Burds drove away in a Malibu. The
defendant placed his gun in the utility shed in the back of
the house. The defendant claimed that he did not know that he
had shot anyone.
The defendant said that Griffin was not armed when they
confronted one another on the porch. He did not know whether
Burds was armed, but he did not see a weapon. The defendant
said that he did not know what Griffin and his friends were
going to do when they returned, but he felt that they were
going to “kick his ass.” After the shooting, the
defendant went to his mother's house to watch the
Under cross-examination, the defendant affirmed that he shot
the victim and Burds in the back. Further, he fired all the
bullets in his gun as the three men were running. He did not
see a weapon in either the victim's or Burds' hands
as they approached the porch. During a phone call while he
was incarcerated, the defendant told his mother to remind Ms.
Lofton that everything happened on the porch. The State
played the recording of the call in which the defendant told
his mother to tell Ms. Lofton that Mr. Duey was going to tell
the police everything happened on the porch.
Sufficiency of the Evidence
claims that there was insufficient evidence to support his
convictions. On direct appeal, the Louisiana Fourth
Circuit Court of Appeal denied that claim, holding:
[T]he defendant complains that the State failed to prove his
guilt beyond a reasonable doubt. Specifically, he argues that
the State failed to prove that he did not act in self-defense
when he shot and killed the victim and shot Burds.
The standard for reviewing a claim of insufficient evidence
is whether, after viewing the evidence in the light most
favorable to the prosecution, a rational trier of fact could
have found the essential elements of the offense proven
beyond a reasonable doubt. Jackson v. Virginia, 443
U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). The reviewing
court is to consider the record as a whole and not just the
evidence most favorable to the prosecution; and if rational
triers of fact could disagree as to the interpretation of the
evidence, the rational decision to convict should be upheld.
State v. Mussall, 523 So.2d 1305 (La. 1988).
Additionally, the court is not called upon to decide whether
it believes the witnesses or whether the conviction is
contrary to the weight of the evidence. Id. The
trier of fact determination of credibility is not to be
disturbed on appeal absent an abuse of discretion. State
v. Cashen, 544 So.2d 1268 (La.App. 4 Cir. 1989).
The defendant herein was found guilty of second-degree murder
and attempted second-degree murder. Second-degree murder is
defined as the killing of a human being with the specific
intent to kill or inflict great bodily harm. La. R.S.
14:30.1; State v. Guy, 95-0899 (La.App. 4 Cir.
1/31/96), 669 So.2d 517.
La. R.S. 14:27, which defines “attempt, ” reads
in pertinent part:
A. Any person who, having a specific intent to commit a
crime, does or omits an act for the purpose of and tending
directly toward the accomplishing of his object is guilty of
an attempt to commit the offense intended; and it shall be
immaterial whether, under the circumstances, he would have
actually accomplished his purpose.
Thus, to convict the defendant of attempted second-degree
murder, the State had to prove beyond a reasonable doubt that
he specifically intended to kill Burds and that he committed
an “act for the purpose of and tending directly toward
the accomplishing of” that intent. La.Rev.Stat.
14:27(A); 14:30.1(A)(1). “Specific criminal intent is
that state of mind which exists when the circumstances
indicate that the offender actively desired the prescribed
criminal consequences to follow his act or failure to
act.” La.Rev.Stat. 14:10(1). It may be “inferred
from the defendant's actions and the circumstances of the
transaction.” State v. Brown, 2003-897, p. 22
(La. 4/12/05), 907 So.2d 1, 18.
When a defendant claims that he acted in self-defense, the
State must prove beyond a reasonable doubt that the homicide
was not justifiable under La.Rev.Stat. 14:20. State v.
Causey, 96-2723 (La.App. 4 Cir. 10/21/98), 721 So.2d 78.
A homicide is justifiable if committed by one in defense of
himself when he reasonably believes that he is in imminent
danger of being killed or of receiving great bodily harm and
that the homicide is necessary to save himself from that
danger. La.Rev.Stat. 14:20(A)(1). Although there is no
unqualified duty to retreat, the possibility of escape is a
factor in determining whether or not the defendant had a
reasonable belief that deadly force was necessary to avoid
the danger. State v. McClain, 95-2546 (La.App. 4
Cir. 12/11/96), 685 So.2d 590. However, a defendant who is
the aggressor or who brings on a difficulty cannot claim ...