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Barnes v. Vannoy

United States District Court, E.D. Louisiana

March 12, 2018

LLOYD A. BARNES
v.
DARRYL VANNOY, WARDEN

         SECTION: “N” (1)

          REPORT AND RECOMMENDATION

          JANIS VAN MEERVELD, UNITED STATES MAGISTRATE JUDGE

         This 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.

         Petitioner, 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.[1] 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.[2] On September 19, 2012, the Louisiana Fourth Circuit Court of Appeal affirmed his convictions and sentences.[3] The Louisiana Supreme Court then denied his related writ application on April 1, 2013.[4]

         On or about December 10, 2013, petitioner filed an application for post-conviction relief with state district court.[5] That application was denied on February 14, 2014.[6] His related writ applications were then likewise denied by the Louisiana Fourth Circuit Court of Appeal on April 15, 2014, [7] and by the Louisiana Supreme Court on October 28, 2016.[8]

         On March 7, 2017, petitioner filed the instant federal application seeking habeas corpus relief.[9] The state does not challenge the timeliness of the application.[10]

         I. Standards of Review

         The 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).

         As to 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.”).

         As to 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.

         Regarding 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 omitted).

         Regarding 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 unreasonable.”).

         While 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 courts.”).

         The 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).

         II. Facts

         In the 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 follows:

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 vehicle.
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 the defendant.
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 this case.
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 shooter.
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 dealers.
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 Street residence.
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 Saints' game.
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.[11]

         III. Petitioner's Claims

         A. Sufficiency of the Evidence

         Petitioner claims that there was insufficient evidence to support his convictions.[12] 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 ...

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