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Chester v. Vannoy

United States District Court, E.D. Louisiana

June 11, 2018

TEDDY CHESTER, #359559
v.
DARREL VANNOY

         SECTION “E”

          ORDER & REASONS

          SUSIE MORGAN UNITED, STATES DISTRICT COURT JUDGE.

         Before the Court is a Petition for a Writ of Habeas Corpus filed by Petitioner Teddy Chester.[1] Chester was indicted by a Jefferson Parish, Louisiana grand jury on April 25, 1996 for the murder of John Adams. On May 14, 1997, after a two-day trial, the jury found Chester guilty of first degree murder. On May 16, 1997, the jury recommended a sentence of death. Chester unsuccessfully challenged his conviction and sentence in the state courts.[2] Having exhausted all avenues of relief in the state system, Chester filed a federal petition for a writ of habeas corpus under 28 U.S.C. § 2254(d), raising thirty-two claims for relief. For the reasons that follow, the Court grants the writ and orders the State of Louisiana to either retry Chester or release him from state custody within 120 days.[3]

         BACKGROUND

         During the guilt phase of Chester's trial, the State theorized that in the early morning of December 27, 1995, between 4:00 and 5:00 a.m., then 18-year-old Teddy Chester was attempting to sell fake drugs known as “bunk” on Calhoun Street in Kenner, Louisiana, an area known for drug trafficking. Meanwhile, 25-year-old Elbert “Feller” Ratcliff was also on Calhoun Street.[4] Ratcliff was attempting to sell a Guess t-shirt, which he was carrying in a plastic shopping bag, when a cab driven by Adams came to a stop on Calhoun Street. The State asserted that Chester and Ratcliff approached the cab, and Chester got in the rear driver's side seat. According to the State, after Adams refused to buy anything from them, Chester pointed a gun at Adams, demanding money. The State alleged that, when the cab began to accelerate forward, Chester shot Adams in the back of the head, killing him instantly.

         Crime scene investigators discovered a bloody plastic bag containing a Guess t-shirt hanging from the inside of the rear driver's side door and fingerprints on several of Adams' business cards, which had been strewn about the front driver's side floorboard. Although the money pouch Adams kept around his neck was missing, Adams had $284.64 elsewhere on his person.[5] A forensic analysis revealed the fingerprints on the business cards were Ratcliff's, which led the police to him.[6] Once in custody, Ratcliff told the police that Chester shot Adams. The police then apprehended Chester. Chester told the police he had been in the back passenger side of the cab and that it was Ratcliff who shot Adams.

         Several weeks later, the police conducted a search of Chester's home, recovering a pair of jeans and a Raiders baseball cap with two drops of blood on it: one on the bill and one on the inside of the cap.[7] The State's forensic expert concluded that the DNA on the cap was a mixture of blood contributed by multiple people, and that Chester and Adams could not be excluded as contributors to the mixture. Ratcliff's blood was not tested. The State's DNA testing on the cap consumed the entire sample, and no independent evaluation of the State's results could be conducted.

         Although there were reddish-brown transfer stains on Chester's jeans, the crime laboratory's testing of the jeans revealed there was no blood on them. The State conducted a search of Ratcliff's home, but discovered no evidence and did not recover the clothes Ratcliff was wearing the night of the murder.

         At trial, among other witnesses, [8] the Government presented the testimony of forensic investigator Mark Goldman, Sergeant Dennis Thornton, Quinice Pollard, [9] and Kaprice Pollard. Goldman testified that he did not see any blood spatter present on the rear passenger side of the vehicle. Sergeant Thornton testified that, in his experience as a police officer, blood spatter from a gunshot wound “blows back” in the direction from which it is fired. A stipulation was read to the jury that the blood found on the Raiders cap “was determined to consist of a combination of [Chester's] DNA and the victim's DNA.”[10]

         The State argued Goldman's and Sergeant Thornton's testimony along with the presence of Adams' blood on Chester's cap proved Chester was the shooter. They adduced that, if Chester had blood spatter on him, he must have been in the rear driver's side of the cab, where the shooter was, when the gun was fired.

         With respect to the Pollard sisters' testimony, Quinice testified that Chester had confessed to her that he shot Adams. On cross-examination, defense counsel impeached Quinice, pointing out that, up until two weeks before the trial, Quinice had maintained that on the night of the shooting Chester told her Ratcliff shot Adams. Kaprice testified that she overheard Chester's confession to Quinice on the night of the shooting.

         The defense rested after presenting a single witness, Chester's brother, Darren Chester. Darren testified that Quinice was at his apartment the night of December 26, that Kaprice was not there that night, and that Chester had not mentioned Adams' murder to him when Chester came home the next morning. On cross-examination, however, the following exchange took place:

Q: [Y]ou don't know if the night that you just talked about is the same night the cab driver was murdered at all; do you?
A: No, sir. . . .
Q: So we might be talking about two different nights completely; correct?
A: It's probable. . . .
Q: [W]hen was the first time you were asked to remember that December night?
A: It was like about two weeks ago probably.[11]

         After over four hours of deliberation, the jury returned a verdict of guilty.

         During the punishment phase, Defense counsel offered evidence of Chester's mental impairments and volatile family history as mitigating evidence. The prosecution argued Chester knew right from wrong and presented the testimony of Adams's parents, both of whom spoke of the victim's good character.

         On May 16, 1997, the jury recommended a sentence of death.[12]

         ANALYSIS

         In his habeas petition, Chester raises thirty-two claims of for relief.[13] Each of Chester's claims, and the appropriate standard of review, must be examined separately.

         LEGAL STANDARD

         Under the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), a federal habeas court may not grant a state prisoner's application for a writ of habeas corpus with respect to claims adjudicated on the merits in state court unless the state court adjudication resulted in a decision that was: (1) contrary to, or involved an unreasonable application of clearly established Federal law, as determined by the U.S. Supreme Court; or (2) based on an unreasonable determination of the facts in light of the evidence presented in the state court proceeding.[14] The state court's findings of fact are entitled to a presumption of correctness, rebuttable only by clear and convincing evidence.[15]

         Courts have held that the “‘contrary to' and ‘unreasonable application' clauses [of § 2254(d)(1)] have independent meaning.”[16] Regarding the “contrary to” clause, the Fifth Circuit 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 [U.S.] 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 [U.S.] Supreme Court and nevertheless arrives at a result different from [U.S.] Supreme Court precedent.[17]

         Regarding the “unreasonable application” clause, the U.S. Supreme Court has held that “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.”[18] 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.[19]

         As a result, 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.”[20] The Supreme Court has also expressly cautioned that “an unreasonable application is different from an incorrect one.”[21] Accordingly, a state court's merely incorrect application of Supreme Court precedent does not warrant habeas relief.[22]

         I. Chester's Conflict of Interest Claim

         Richie Thompson, the Chief Public Defender for the 24th Judicial District, and Carol Kiff represented Ratcliff. Thompson assigned Chester's case to two members of the Jefferson Parish Indigent Defender Board (“IDB”), Graham da Ponte and Cesar Vasquez. Chester contends that, while representing Ratcliff, Thompson continued to supervise da Ponte and Vasquez in their representation of Chester. Chester argues that, therefore, all the IDB lawyers labored under a conflict of interest.[23]

         According to Chester, at the time of his trial, the IDB attorneys shared secretarial staff and investigators, frequently collaborated on cases, and shared computer databases, printers, and photocopiers. Chester alleges the trial court was “put on notice” of this conflict, but failed to appoint non-IDB counsel or seek a waiver of the conflict from Chester, in violation of his right to conflict-free counsel under the Sixth and Fourteenth Amendments.[24] Notably, Chester provided no evidence that the trial court was notified or otherwise should have known of this alleged conflict of interest.[25] Chester raised the issue for the first time in his direct appeal of his conviction.

         Chester contends that “[a]s a result of this conflict, ” his trial counsel “failed to investigate or present ample evidence of Elbert Ratcliff's culpability” by not: (1) testing “physical evidence against Elbert Ratcliff's DNA”; (2) “present[ing] known witnesses who identified Elbert Ratcliff as the shooter”; and (3) “locat[ing] and present[ing] a witness who observed Elbert Ratcliff fleeing the crime scene with a gun in his hands.”[26]

         In support of his argument, Chester points to Holloway v. Arkansas, [27] in which the U.S. Supreme Court held that when the trial court is alerted to a potential conflict of interest, its failure to “appoint separate counsel or to take adequate steps to ascertain whether the risk was too remote to warrant separate counsel” deprives the defendant of the guarantee of assistance of counsel.[28] When the trial court is made aware of a potential conflict of interest, but does not take corrective action, “prejudice is presumed regardless of whether it was independently shown.”[29] When a defendant raises the issue of a conflict of interest after trial, however, he must establish that an “actual conflict” of interest adversely affected his lawyer's performance.[30]

         “An ‘actual conflict' exists when defense counsel is compelled to compromise his or her duty of loyalty or zealous advocacy to the accused by choosing between or blending the divergent or competing interests of a former or current client.”[31] The “‘guiding principle in this important area of Sixth Amendment jurisprudence' . . . is whether counsel's allegiance to the accused was compromised by competing obligations owed to other clients.”[32] In finding an actual conflict of interest existed, the ethical rules “may be informative but are not determinative with respect to whether there is an actual conflict for Sixth Amendment purposes.”[33] “Assuming the [petitioner] establishes an actual conflict that adversely affected counsel's performance, prejudice is presumed without any further inquiry into the effect of the actual conflict on the outcome of the defendant's trial.”[34]

         The Louisiana Supreme Court found that “[Chester] did not raise the issue pre-trial, ” and, as a result, concluded that he must present evidence that his counsels' “actual conflict” of interest “adversely affected his lawyer's [sic] performance” to be entitled to relief.[35] With respect to Chester's argument that his trial counsel's representation met both requirements, the Louisiana Supreme Court found “no merit to this contention.”[36]It reasoned,

Defendant contends that his court-appointed public defenders, Graham da Ponte and Cesar Vasquez, labored under a conflict of interest because their supervisor, Richie Thompson, represented Elbert Ratcliff, his co-defendant. He argues that the decision of Mr. Thompson to appoint these persons as counsel, neither of whom had tried a case in Jefferson Parish and who were less skilled than he, implied that Mr. Thompson wished to increase the chances for Thompson's own client. He further argued that his counsel were inexperienced. . . .
Although defendant and Ratcliff had antagonistic defenses, they were not tried together, thus eliminating an actual conflict of interest and any chance of prejudice. A review of the record shows that Ms. Da Ponte had over ten years['] experience with mostly criminal cases and Mr. Vasquez had between five and ten years['] experience.”[37]

         The Louisiana Supreme Court's factual findings are not clearly erroneous. In his petition before this Court, Chester has not offered sufficient allegations that his trial counsel labored under an “actual conflict.”[38] He offers no evidence Thompson had any involvement in Chester's representation, beyond the fact that Chester's attorneys were supervised by Thompson.[39] Moreover, in his petition to this Court, Chester's arguments focus primarily on his contention that the IDB is “a ‘firm, ' imputing each IDB attorney's conflict of interest to all IDB attorneys.”[40] Essentially, Chester argues that, because Thompson had a conflict, and da Ponte and Vasquez were in the same “firm” as Thompson, da Ponte and Vasquez could not represent him. As previously stated, although such a claim might make out a violation of Louisiana's Rules of Professional Conduct, [41] the ethical rules “are not determinative with respect to whether there is an actual conflict for Sixth Amendment purposes.”[42]

         The Louisiana Supreme Court's discussion in State v. Garcia of what constitutes an “actual” conflict is instructive.[43] In Garcia, three capital defendants were all represented by the same indigent defender board, and the attorneys were supervised by the same public defender, Jerome D'Aquila, who also served as lead counsel for the defendant, Garcia.[44] The Louisiana Supreme Court found there was no conflict of interest, reasoning that,

there was no actual conflict in the attorneys' representation of defendant at trial because none of these attorneys' loyalties were divided. None of his attorneys jointly represented other defendants to whom the attorneys owed duties of loyalty. None of defendant's counsel was called upon to cross-examine any of his former or current clients in the State's prosecution, mandating reversal. Nor were any of defendant's attorneys called upon to take some action, or prevented from taking some action, based on a loyalty to another. Defendant was tried separately from his co-defendants.[45]

         The factual underpinnings of this case are strikingly similar. Although Chester's trial counsel were members of the same IDB board as Ratcliffs' counsel and were supervised by Ratcliff's counsel, there is no evidence suggesting Chester's counsel collaborated with Ratcliff's counsel in any way, that Chester's counsel owed any loyalties to Ratcliff, or that Thompson exercised any influence or control over Chester's defense.[46]

         In light of the fact that Chester did not raise this issue until his case was on appeal, and the Louisiana Supreme Court's finding that his trial counsel's performance was not adversely affected by an actual conflict of interest, the Court finds this assertion of error lacks merit, as Chester has not offered clear and convincing evidence that such findings were incorrect.[47]

         II. Prosecutorial Misconduct

         Chester next contends the prosecutors in his trial, Ronald Bodenheimer and Michael Reynolds, engaged in prosecutorial misconduct leading up to and during the trial. He argues the State violated: (1) Brady v. Maryland[48] by suppressing inconsistent statements made by the Pollard sisters;[49] (2) Batson v. Kentucky[50] for striking the only prospective black jurors from the jury venire;[51] (3) Napue v. Illinois[52] by “knowingly allowing” the Pollard sisters to testify falsely;[53] (4) Arizona v. Youngblood[54] by destroying potentially exculpatory evidence before the defense had the opportunity to inspect it;[55]and (5) Donnelly v. DeChristoforo[56] by making several misleading, prejudicial statements throughout trial.[57]

         A. Brady Claim

         On March 18, 1996, Kaprice Pollard called the police, complaining that her sister's boyfriend, Chester, refused to leave Kaprice's apartment at 1108 Newton Street. When police arrived, Kaprice told the officers her name was Keisha Gordon and that her sister Quinice's name was Latrisha Gordon. Police then arrested Chester after he jumped out of a bedroom window. Kaprice and Quinice, using the names Keisha and Latrisha, respectively, made statements to police that morning. Later, once police learned the sisters' true identities, they each made a second statement.

         In her first statement, Kaprice told police that on the night of Adams' murder, she and Quinice were at 1108 Newton Street when Chester came to Kaprice's apartment. Kaprice claimed Chester came to the apartment at about 10:00 p.m. and told her and Quinice “him and Fellow had just, uh, killed a cab driver. [Chester] said he pulled the trigger and the man swung and hit the pole or something.”[58] Kaprice also indicated Chester was wearing shorts and a black leather jacket.[59] She also told Sergeant Thornton that there was no blood on the jacket.[60]

         Five hours later, Kaprice made a second statement. This time, she told police Chester arrived at her apartment at around three or four in the morning and that Chester and Quinice went into a bathroom.[61] She explained that, when Chester and Quinice went into the bathroom, she overheard Chester tell Quinice “he had just shot a cab driver over some dope.”[62] This time, when Sergeant Thornton asked what Chester was wearing that night, Kaprice said Chester had on “blue jeans” and that there was “definitely [blood] on his blue Girbaud pants.”[63]

         Quinice made a statement to police that same day. She said that the night of Adams' murder, Chester ran to his house on Jackson Street and that she did not see him until the next day at Flake's Store. She told the interviewing officer that, after she saw Chester at Flake's Store, she and Chester walked to his apartment on Jackson Street.

         When the interviewing officer asked Quinice whether Kaprice was with her the first time she saw Chester following the murder, Quinice said:

No. No. No. I was by my . . . it was just me and Teddy in the kitchen that night talking. Just me and Teddy. When I did . . . now wait, let me tell you how it went. When Teddy told me what happened across the track, I went and told Prisa. I said, well Prisa, I say uh . . . you know I said they saying Teddy got something to do with the cab driver over there. I said. Teddy said that he didn't have nothing. I said Teddy said that Fella the one pulled the trigger. I said he said that he just was there. Like that. That's all that was said.[64]

         Sergeant Thornton then asked Quinice at what point she told Kaprice that Chester told her Ratcliff shot Adams, and Quinice stated:

The . . . it was like the day after. That part was true. The day after I did tell her but he did not. . . . Only thing came up when I told her, I said Teddy said that Fella said . . . no. That Teddy . . . Teddy said that Fella killed the cab driver and that he know he gonna put him in it. I said he at the house scared now. I was over there by my sister house by myself that day. I said he over at the house scared now. So she said well you, do you think put . . . so she asked me, she said, do you think he did it. I said, no he said Fella did it.[65]

         Two weeks before trial, Quinice changed her story and said that, when she saw Chester after the murder, he confessed to shooting Adams during an attempted robbery gone awry.[66]

         On May 17, 1996, defense counsel filed a motion for disclosure of evidence favorable to Chester pursuant to Brady and Kyles.[67] With respect to the Pollard sisters, the State filed a notice of possible Brady material, addressing the sisters' prior convictions and stating it would not object to an in camera review of the sisters' statements to police.[68]Following the trial court's review of the statements, the trial court provided defense counsel only with the portion of Quinice's statement in which she said Chester told her Ratcliff had shot Adams.

         On May 17, 1996, defense counsel also filed a motion to “reveal the deal, ” including “any deals, implicit or explicit.”[69] The State responded that there were no deals, [70] but did not disclose that it had declined to prosecute either Kaprice or Quinice for alleged criminal activities. Notably, Kaprice and Quinice explained in the second statements they to gave to police that they initially gave police officers false names because Quinice was on probation for possession of crack cocaine and Kaprice had a warrant out for her arrest based on a probation violation.[71]

         Chester alleges that his trial counsel was unable to adequately cross-examine Kaprice and Quinice at trial because the only inconsistency of which trial counsel was aware was Quinice's prior statement that Chester told her Ratcliff shot Adams. Chester submits that “both individually and cumulatively, the State's failure to disclose all of the above impeachment evidence on the Pollard sisters was material under Brady and harmed the Petitioner's case.”[72]

         The Louisiana Supreme Court held that Chester “fail[ed] to show that any suppression occurred as to the portion of Quinice's statement that would have been suitable for impeachment, ” noting that “the state disclosed the portion of Quinice's statement in which she initially told police [Chester] informed her that Ratcliff was the shooter.” The court went on to state:

Moreover, even assuming the state withheld the remainder of both sisters' initial statements, Chester fails to show it did so in violation of Brady. The only other inconsistencies he points to do not rise to a level capable of undermining the verdict because they pertain to the sisters' particular recollections about when and how they learned Chester was the shooter- i.e., on the night of the crime or the next day-not to the material issue of whether they learned Chester was the shooter.[73]

         To make a Brady claim, a habeas petitioner must prove: (1) that the “evidence at issue [is] favorable to the accused, either because it is exculpatory, or because it is impeaching”; (2) that the “evidence [has] been suppressed by the State, either willfully or inadvertently”; and (3) that “prejudice [has] ensued.”[74]

         In United States v. Bagley, [75] the U.S. Supreme Court “disavowed any difference between exculpatory and impeachment evidence for Brady purposes, ”[76] and held that “regardless of request, favorable evidence is material, and constitutional error results from its suppression by the government, ‘if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different.'”[77] Moreover, “a showing of materiality does not require demonstration by a preponderance that disclosure of the suppressed evidence would have resulted ultimately in the defendant's acquittal.”[78]

         Even without the complete statements, trial counsel was able to impeach Quinice on her prior statement to police and was able to elicit testimony that called into question the veracity of her trial testimony:

Q: Did Elbert Ratcliff ever threaten you to do harm?
A: Yes. . . .
Q: Did you also tell me that you had been threatened by the police if you did not cooperate?
A: I told you that when we was in the room about being questioned, I was nervous and everything. I also told you that, the man, Detective Thornton told me if I can't get up and say what I said, he would “F” me. . . .
Q: And, you also told me that-let me ask you: Did you also tell me that Detective Thornton told you that you had to tell what you said in Court?
A: Yes ma'am.[79]

         Although trial counsel's cross-examination of Quinice and Kaprice would likely have been more effective had she been able to point out other contradictions in their statements, the Louisiana Supreme Court's conclusion that Chester was not prejudiced by the State's failure to disclose this information is not an unreasonable application of Brady.

         B. Batson Claim

         Chester argues the State acted in a discriminatory manner when it struck both of the only two prospective black jurors in the venire, and as a result, Chester was tried for a cross-racial crime before an all-white jury.[80]

         “Discrimination in jury selection . . . causes harms to the litigants, the community, and the individual jurors who are wrongfully excluded from participation in the judicial process.”[81] In Batson, the U.S. Supreme Court established a framework for determining whether peremptory strikes are racially motivated. Both the U.S. Supreme Court and the Fifth Circuit have granted writs of habeas corpus based on a finding that a state court made unreasonable factual determinations in rejecting a petitioner's Batson claim.[82] In those cases, the court relied heavily on a so-called “comparative juror analysis, ” wherein the reviewing court determines whether the reasons given by the prosecutor for striking black jurors apply equally to white jurors the prosecutor accepted.[83] Before a court undertakes such an analysis, however, the defendant must have first made a prima facie showing that the prosecutor exercised peremptory challenges on the basis of race; in response, the prosecutor must have articulated a race-neutral reason for striking the juror in question.[84] “‘[B]ecause a timely objection is an essential prerequisite to a Batson claim, ' a defendant is not entitled to raise a Batson claim on appeal if he did not object to the prosecutor's use of peremptory challenges in the district court.”[85] Thus, “a Batson challenge must be made timely or it will be rejected.”[86]

         During voir dire, defense counsel failed to object to the State's striking both of the two death-qualified African American prospective jurors.[87] As a result, the trial court did not have the opportunity to consider whether the State's use of peremptory strikes with respect to these two venire people was racially motivated. On Chester's direct appeal of his conviction, the Louisiana Supreme Court held that these alleged errors were without merit.[88]

         A Batson claim presents a mixed question of law and fact, which “focuses on the reasonableness of the decisions of the state courts-that is, whether those decisions constituted an unreasonable application of Supreme Court precedent.”[89] In addition, however, a Batson challenge regarding whether the prosecutor intended to discriminate impermissibly based on race is “a question of historical fact.”[90] “Under AEDPA, primary or historical facts found by state courts are presumed correct and are rebuttable only by clear and convincing evidence.”[91]

         In his petition before this Court, Chester offers no more than the ipse dixit assertion that the State's striking of these prospective jurors was racially motivated. The Louisiana Supreme Court's finding that Chester waived his Batson claim by failing to make a contemporaneous objection to the prosecutor's use of peremptories or to the composition of the jury is an independent and adequate state law ground for the judgment. The Louisiana Supreme Court made factual findings that Chester's trial counsel failed to raise an objection pursuant to Batson, and that, in any event, the prosecutor did not act with prejudicial intent. These findings are not clearly erroneous and are entitled to deference.[92] Accordingly, the Court finds this claim lacks merit.

         C. Napue Claim

         Chester argues the State violated Napue when the prosecution offered testimony from Quinice and Kaprice, arguing the prosecution knowingly elicited false testimony from both witnesses and failed to correct the sisters' false testimony.[93]

         In Napue, the U.S. Supreme Court explained that if “false testimony used by the State in securing the conviction of [a] petitioner may have had an effect on the outcome of the trial, ” the petitioner's conviction must be reversed.[94]

It is of no consequence that the falsehood bore upon the witness' credibility rather than directly upon defendant's guilt. A lie is a lie, no matter what its subject, and, if it is in any way relevant to the case, the district attorney has the responsibility and duty to correct what he knows to be false and elicit the truth. That the district attorney's silence was not the result of guile or a desire to prejudice matters little, for its impact was the same, preventing, as it did, a trial that could in any real sense be termed fair.[95]

         In support of his Napue claim, Chester points to a sworn statement from Sheryl Nelson, in which Nelson states Quinice changed her testimony only because “prosecutors told her they would put her in jail and take away her child” if she did not.[96] Chester also points to the inconsistencies in both Quinice's and Kaprice's testimony. Chester argues these inconsistencies and Nelson's sworn statement make clear that either Kaprice or Quinice was lying, and that the State knowingly offered perjured testimony.

         With respect to Nelson's sworn statement, the Louisiana Supreme Court, noting that a court must view “recantations ‘with the utmost suspicion, '” held that “Nelson's statement does not rise even to the level of an actual recantation from Quinice but is rather merely a third party assertion that she has since claimed she gave false testimony.”[97] The Louisiana Supreme Court was not persuaded that Quinince or Kaprice testified falsely and also was not persuaded that the State “knowingly” presented the allegedly perjured testimony. In his petition before this Court, Chester has not presented clear and convincing evidence that demonstrates (1) Quinice or Kaprice testified falsely, and (2) that the State knew either one's testimony was false, but offered it anyway. The Court finds the Louisiana Supreme Court's holding is based on a reasonable determination of the facts.[98] As a result, the Court will not issue the writ on this basis.

         D. Youngblood Claim

         Chester complains he was denied the ability to present a complete defense, including relevant evidence at trial, because (1) the State returned the cab to the King Cab Company about two days after the murder without first taking photographs of the back passenger-side seat or allowing the defense to inspect the cab, [99] and (2) the State's DNA testing consumed the entire blood sample found on Chester's cap before the defense could test it independently.[100]

         The Due Process Clause requires that the State disclose to a criminal defendant “evidence that is either material to the guilt of the defendant or relevant to the punishment to be imposed.”[101] To safeguard that right, the Supreme Court has developed “‘what might loosely be called the area of constitutionally guaranteed access to evidence.'”[102] As part of this guarantee, the State has a duty to preserve evidence known to be favorable to the accused. “Even in the absence of a specific request, the prosecution has a constitutional duty to turn over exculpatory evidence that would raise a reasonable doubt about the defendant's guilt.”[103]

         A different standard applies to evidence that is only speculatively or potentially exculpatory, as opposed to clearly exculpatory evidence falling more directly under Brady. “[T]he Due Process Clause requires a different result when we deal with the failure of the State to preserve evidentiary material of which no more can be said than that it could have been subjected to tests, the results of which might have exonerated the defendant.”[104] The State's duty to preserve this type of evidence is “limited to evidence that might be expected to play a significant role in the suspect's defense.”[105]

         The U.S. Supreme Court held in Youngblood, “that unless a criminal defendant can show bad faith on the part of the [State], failure to preserve potentially useful evidence does not constitute a denial of due process of law.”[106] Under these standards, the exculpatory value of the evidence must have been apparent “before the evidence was destroyed, and be of such a nature that the defendant would be unable to obtain comparable evidence by other reasonably available means.”[107] The mere fact that the State had control over evidence and failed to preserve it is insufficient, by itself, to establish bad faith, and bad faith will not be found in the State's negligent failure to preserve potentially exculpatory evidence.[108]

         In this case, the Louisiana Supreme Court rejected Chester's claims under Youngblood, finding that they were speculative, [109] and therefore holding that “because [Chester] does not show that the evidence was lost as a result of demonstrable bad faith by the state, ” relief was not warranted as to this claim.[110]

         In his petition before this Court, Chester contends his “right to a fair trial was denied because the State did not fulfill its constitutional duty to preserve potentially exculpatory evidence.”[111] Chester does not allege that the State acted in bad faith, nor does he offer any evidence to that effect, when it consumed the entire DNA testing sample and returned the cab to King Cab the day after the murder.[112] Thus, the Court finds this claim lacks merit.[113]

         E. Donnelly Claim

         Chester complains the State's arguments during both the guilt and punishment phases of his trial violated his right to due process as articulated in Donnelly.[114] In Donnelly, the U.S. Supreme Court held that, in some instances, a prosecutor's statements to the jury can be so egregious that they deprive the defendant of due process.[115] The petitioner in Donnelly was tried in Massachusetts State Court for first degree murder. During the course of his trial, one of the petitioner's co-defendants with whom he was being tried jointly elected to plead guilty to a lesser charge, and the trial judge advised the jury that the petitioner's co-defendant had pleaded guilty. The petitioner's trial then continued.

         In his closing argument, the prosecutor stated he “honestly and sincerely believe[d] that there is no doubt [the defendant is guilty] in this case, none whatsoever” and that “They, ” meaning the petitioner and his counsel, “said they hope that you find him not guilty. I quite frankly think that they hope that you find him guilty of something a little less than first-degree murder.” The petitioner's counsel objected to the statements and later sought an instruction that the remark was improper and should be disregarded. The trial court instructed the jury that the prosecutor's statements were not evidence and told the jury to “[c]onsider the case as though no such statement[s] [were] made.”[116]

         The jury found the petitioner guilty of first degree murder, and his conviction was affirmed on appeal by the Massachusetts courts. The petitioner then sought habeas corpus relief in the U.S. District Court for the District of Massachusetts, which denied the writ. The First Circuit reversed.[117] The circuit court reasoned that the prosecutor's remarks, when combined with the guilty plea of the petitioner's co-defendant, would probably have conveyed to the jury a notion that the petitioner had also sought to enter guilty plea, but had been refused.[118] The circuit court explained that, because the prosecutor's statements created this impression, the petitioner was denied due process.[119]

         The U.S. Supreme Court reversed.[120] The Court cautioned that, although “[t]he ‘consistent and repeated misrepresentation' of a dramatic exhibit in evidence may profoundly impress a jury and may have a significant impact on the jury's deliberations, ” “[i]solated passages of a prosecutor's argument, billed in advance to the jury as a matter of opinion not of evidence, do not reach the same proportions.”[121] The Court reasoned that, given that the district court and the court of appeals had differing opinions as to what conclusion the jury might have drawn from the prosecutor's statements, “it is by no means clear that the jury did engage in the hypothetical analysis suggested by the majority of the Court of Appeals, or even probable that it would seize such a comment out of context and attach this particular meaning to it.”[122] Ultimately, because the trial court properly instructed the jury to disregard the prosecutor's statements and it was not clear what inference the jury might have made as a result of the comments, the Court found the prosecutor's comments did not render the petitioner's “trial so fundamentally unfair as to deny him due process.”[123]

         1. Defaulted claims

         During the guilt phase of trial, Chester's trial counsel failed to object to the statements about which Chester now complains. With respect to these unobjected to statements, the Louisiana Supreme Court held Chester's claims of error were procedurally defaulted:

He argues that [during the guilt phase of trial] the prosecutor misstated the law of principals and gave incorrect definitions of reasonable doubt, he expressed his personal opinion regarding defendant's guilt and the facts of the case, he bolstered the testimony of Kaprice Pollard and his own position in the criminal justice system, he misstated the law and evidence in several instances throughout trial, and he thanked the jury “on behalf of the people of Jefferson and the family of John Adams” during his closing statement. Defendant failed to object to these comments of the prosecutor during trial or closing arguments. Any claim of error based on prosecutorial misconduct in the guilt phase not objected to was therefore waived.[124]

         When a state court invokes a procedural rule to deny a prisoner's claims, a federal habeas court is precluded from reviewing the claims if “the state procedural rule is a nonfederal ground adequate to support the judgment and the rule is firmly established and consistently followed.”[125] This doctrine is not without exceptions, however. “A prisoner may obtain federal review of a defaulted claim by showing cause for the default and prejudice from a violation of federal law.”[126] Ineffective assistance of counsel may qualify as cause for the default.[127]

         Chester contends he can overcome this procedural bar to federal habeas review, as his trial counsel's failure to object to these statements constitutes ineffective assistance. Even assuming defense counsel's failure to object rendered her performance constitutionally deficient, however, Chester has not shown he was prejudiced by the statements.[128] Thus, finding no exception to the general rule that a federal habeas court is barred from considering claims defaulted in state court applies in this case, the Court does not consider these claims.[129]

         2. Statements Made During the Penalty Phase

         Chester contends the State “made a number of improper statements on closing argument of the penalty phase that deprived Mr. Chester's sentencing determination of the reliability that the Sixth, Eighth, and Fourteenth Amendment[s] require[].”[130] First, Chester contends the State mischaracterized Professor Dean Burk Foster's testimony. Second, Chester argues the State misstated the law of mitigation. Third, Chester submits prosecutor Bodenheimer improperly “interjected his own personal beliefs into the case and resorted to personal experience.”[131] Because Chester argues these statements, when taken as a whole, deprived him of his right to due process, the Court analyzes them together.

         a. Professor Foster

         During the penalty phase, the defense called Professor Foster to discuss conditions at Angola, the prison where an adult male sentenced to life in prison in Louisiana would more than likely serve his time.[132] During the State's cross-examination of Professor Foster, the State asked Professor Foster about “institutionalization” in the criminological context. Professor Foster explained that it meant “[an inmate] adapt[s] to the conditions of an institution to the point that [he] become[s] so affixed to the routine that it's difficult for [him] to function outside of prison.”[133] The State then asked Professor Foster to “describe the conditions at Angola and the conveniences at Angola compared to, let's say troops in Dessert Storm, ”[134] adding “[is there] [a]nybody in Angola living in tents?” Professor Foster responded that, in fact, some inmates had been housed in tents, but that “[the inmates] don't ordinarily live in tents, no.”[135]

         In his closing argument to the jury, the prosecutor, referring to Professor Foster, stated Chester's “own expert talked to you about institutionalization. And that happens every day at Angola. It's people who become so happy, so content with their surroundings, they don't even want to leave prison.”[136]

         b. Law of Mitigation

         At the penalty phase, defense counsel offered evidence of Chester's difficult upbringing and evidence of his learning disabilities, including that Chester is dyslexic.

         During closing arguments, the prosecutor stated Chester's “dyslexia and abuse . . . [has] got nothing to do with all of this. It's got nothing. You know what this has got to do with, two things: does he know right from wrong? And everybody said yes, he knows right from wrong. And the second is your choice. You make your choices as you live.”[137]

         c. Interjection of Personal Beliefs

         During rebuttal the prosecutor stated,

So we don't say ‘an eye for an eye and a tooth for a tooth' in all cases, but in this one, I say yes. And some people say, ‘Well then, you've got a society of people who are both blind and toothless.' And I say, ‘If you don't, you're going to have a society where victims are blind and toothless and murders can see and chew.' That's the alternative. Our victims are going to be slaughtered in the street, but were going to give life to their killers. That, to me, make no sense whatsoever.[138]

         Shortly after that, he added:

And I know, because I have a mother, you know-she's dead now, but she used to complain that I didn't call her every day. . . . But John Adams did. I hate to say it, but he was a better son than I was, because I couldn't get to my mother every day. You know, I just got busy. But, you know, every day he called his mom. He was a giver.[139]

         The prosecution also challenged the defense “to answer to [the juror's] satisfaction”: “What good it's going to do society to give him, to award him [with] life in prison?”[140] On rebuttal, the prosecutor then argued the death penalty is “the only way you can be 100 percent sure that Chester never kills again, ”[141] adding that the death penalty will only be a deterrent once “the jurors stand up and start enforcing the laws, ”[142] by “cut[ting] off the cancer to save society.”[143]

         3. Analysis

         Chester claims all of the prosecutor's statements during the penalty phase, taken as a whole, deprived him of his right to a fair trial, pointing to Berger v. United States.[144]In Berger, the U.S. Supreme Court stated “improper suggestions, insinuations and, especially, assertions of personal knowledge are apt to carry much weight against the accused when they should properly carry none.”[145]

         On the direct appeal of his conviction, the Louisiana Supreme Court concluded that the prosecutor's statements were improper, but nevertheless held they did not prejudice Chester.[146] The Louisiana Supreme Court explained:

We do not find these remarks were of such a nature as to require a mistrial nor did they exceed the scope of proper closing argument. The state is permitted to argue why the death penalty is appropriate for a defendant and for the crime. [With respect to the prosecutor's statements regarding Dr. Foster's testimony, ] [we] find that the misstatements were not so prejudicial, and in any event, the trial judge properly instructed the jury on the law of mitigation.
The defense claims prosecutorial misconduct when the prosecutor referred to facts not in evidence when he declared that “Teddy Chester has escaped responsibility his whole life.” We consider this to be a comment on defendant's life style based upon witnesses' testimony at trial and as such is not a reiteration of a fact. Defendant further complains that the prosecutor interjected his own personal beliefs into rebuttal when he stated, “And I know, because I have a mother, you know-she's dead now, but she used to complain that I didn't call her every day. But John Adams did. I hate to say it, but he was a better son that I was, because I couldn't get to my mother every day.” We find that the remark was within the considerable latitude allowed prosecutors in closing argument, and, in any event, we do not think the jury was ever in doubt that the ultimate decision was theirs and that the prosecutor was only arguing the state's position. . . . These assignments of error are without merit.[147]

         Chester argues the Louisiana Supreme Court's finding was an “unreasonable factual determination, as it understates the influence a prosecutor has on a jury- particularly when he has just persuaded them to find a man guilty-and the potential for that influence to sway their decision on impermissible grounds.”[148] However, the Court agrees with the Louisiana Supreme Court that the prosecutor's statements did not render Chester's “trial so fundamentally unfair as to deny him due process.”[149] As a result, this Court is not persuaded that the Louisiana Supreme Court's holding was: (1) contrary to, or involved an unreasonable application of clearly established Federal law, as determined by the U.S. Supreme Court; or (2) based on an unreasonable determination of the facts in light of the evidence presented in the state court proceeding.[150]

         III. Atkins Claim

         Chester next contends that his death sentence violates Atkins v. Virginia, [151]claiming that he is intellectually disabled and the Louisiana Supreme Court's finding to the contrary is not entitled to the presumption of correctness.[152]

         The Court first addresses Chester's contention that his Atkins claim should be viewed through the lens of Roper v. Simmons, [153] a case in which the U.S. Supreme Court held the execution of a person who committed his or her crime as a minor violates the Eighth and Fourteenth Amendments, as Chester's crime took place only forty-seven days after his eighteenth birthday. The U.S. Supreme Court's holding in Roper was clear: “The Eighth and Fourteenth Amendments forbid imposition of the death penalty on offenders who were under the age of 18 when their crimes were committed.”[154] Thus, Roper plainly does not “govern” Chester's case, and his Atkins claim cannot be viewed through that lens.

         In Atkins, the U.S. Supreme Court held that executing an intellectually disabled person violates the Eighth Amendment's prohibition on cruel and unusual punishment.[155]The Court relied heavily on current medical standards, [156] which indicate individuals with an intelligence quotient (“IQ”) of approximately seventy or below are considered intellectually disabled.[157] Later, in Hall v. Florida, the U.S. Supreme Court evaluated a Florida statute that created a bright line rule making anyone whose IQ was above seventy eligible for execution.[158] In Hall, the Court held that Florida's bright line rule made the possibility that an intellectually disabled person would be executed too great, explaining that IQ scores constitute only a part of what should be considered in determining whether a person has deficient general intellectual functions.[159]

         The Supreme Court's holding in Atkins, issued in June of 2002, applies retroactively.[160] Chester, having been sentenced to death in 1997, sought to overturn his death sentence on the basis of his alleged intellectual disability. Pursuant to this assertion, the Louisiana district court held an extensive post-conviction Atkins hearing on November 12-15, 2013.[161]

         On December 10, 2013, the state district court denied Chester's Atkins claim, explaining:

Petitioner fails to meet his burden of proving he is mentally retarded by [a] preponderance of evidence. Petitioner did not submit sufficient evidence to meet this burden. Moreover, the State presented ample evidence that Petitioner is not mentally retarded. The court has had the opportunity to observe Petitioner in court on several occasions, and is impressed with petitioner's intellectual abilities to discuss complicated legal issues with an obvious degree of understanding. Petitioner has also filed numerous pleadings and has a strong grasp of the law in areas at issue.[162]

         On review, the Louisiana Supreme Court found Chester's Atkins claim was procedurally barred, as Chester “failed to timely seek review of the District Court's December 5, 2013, ruling dismissing it.”[163] Chester contends the state court “erroneously applied an inapplicable and inadequate state procedural bar, ” noting that on November 21, 2013, Chester's post-conviction counsel filed a “Notice of Intent to Seek Writ of Review.”[164] Even assuming Chester has not procedurally defaulted this claim, however, the Court concludes Chester has failed to demonstrate the Louisiana district court's determination that he is not intellectually disabled was: (1) contrary to, or involved an unreasonable application of, Atkins; or (2) based on an unreasonable determination of the facts in light of the evidence presented in the state court proceeding.[165] Thus, the Court will not grant the writ based on this claim.

         IV. Trial Court's Alleged Errors

         Chester alleges the trial court made several errors that deprived him of his right to a fair trial. The Court notes at the outset that “federal habeas corpus relief does not lie for errors of state law, ”[166] including whether “evidence was ‘incorrectly admitted . . . pursuant to [Louisiana] law.'”[167] Thus, a federal habeas court may grant a writ of habeas corpus only if the petitioner demonstrates the state court's errors “violated the Constitution, laws, or treaties of the United States.”[168]

         A. Bill of particulars amended the morning of trial

         Chester and Ratcliff were indicted by a Jefferson Parish, Louisiana grand jury on April 25, 1996 for the murder of John Adams.[169] The indictment stated:

The Grand Jurors of the State of Louisiana, duly empaneled and sworn, in and for the body of the Parish if JEFFERSON, in the name and by the authority of the said State, upon their Oath, present: That one
TEDDY CHESTER, n/m 11/10/77 ELBERT RATCLIFF, n/m 9/30/70
late of the Parish of JEFFERSON, on or about the 27th day of December in the year of our Lord, One Thousand Nine Hundred and Ninety-Five (1995) with force and arms, in the Parish of JEFFERSON aforesaid, and within the jurisdiction of the Twenty-Fourth Judicial District Court of Louisiana, in and for the Parish of JEFFERSON aforesaid, then and there being violated R.S. 14:30 in that they did commit first degree murder of John Adams, contrary to the form of the Statute of the State of Louisiana, in such case made and provided, and against the peace and dignity of the State.[170]

         On May 17, 1996, the defense filed a bill of particulars, [171] asking:

If this prosecution is based on LSA R.S. 14:30(6), specify the controlled substance involved in the transaction, the schedule under which is it [sic] classified, whether the victim was distributing or purchasing the controlled dangerous substance and whether the offender was distributing or purchasing the controlled dangerous substance.[172]

         The defense asked a similar question on the same date with respect to the penalty phase of trial.[173] On September 10, 1996, the prosecution responded to the question, stating with respect to the guilt phase of trial: “Cocaine; 40:967(c). The offender was attempting to rob the victim.”[174] With respect to the penalty phase, on January 31, 1997, the prosecution stated: “The defendant was attempting to acquire cocaine, a violation of R.S. 40:967(c).”[175] According to defense counsel, she interpreted these responses to mean the State alleged Chester had murdered Adams after Chester tried to rob Adams of cocaine.[176]

         On the morning of trial, May 6, 1997, the prosecution filed a supplemental bill of particulars for first degree murder, adding another aggregating factor: “While engaged in the attempted distribution, exchange, or sale of a controlled dangerous substance listed in the uniform controlled dangerous substance law, and/or during the course of armed robbery.”[177] The trial court allowed the amendment, over defense counsel's objection.[178]

         Chester claims this amendment violated the Sixth, Eighth and Fourteenth Amendments to the United States Constitution, as his “right to notice was violated when the prosecution changed the aggravating circumstance it was alleging on the morning of trial.”[179] According to Chester, “This case featured a bait and switch of statutory elements where Mr. Chester prepared to defend against a robbery of cocaine, only to find on the morning of trial that he needed to actually prepare a defense for a drug sale.”[180]

         In opposition, the State submits this issue is moot, as the jury ultimately rejected the State's argument that Chester committed the murder while attempting to sell cocaine. Rather, the jury found the aggravating circumstance that made Chester “death-eligible” was that Chester “committed the murder during an attempted armed robbery, ” the aggravating factor the State listed in its original bill of particulars.[181] The State argues that its initial response to Chester's request for a bill of particulars-that Chester “was attempting to rob the victim”[182]-in addition to Chester's prior statements to the police, in which he admits to attempting to sell Adams “bunk, ” but alleges Ratcliff attempted to rob Adams, provided Chester with sufficient notice that he would need to defend against the allegation that he committed the murder during the commission of a robbery.[183]

         The Louisiana Supreme Court agreed with the State and found Chester was not prejudiced by this amended response because Chester's counsel was aware of the accusation that Chester had committed the murder during the commission of a robbery.[184] In his petition to this Court, Chester does not argue he was prejudiced by the State's amendment to the bill of particulars, other than to state that “the prejudice in lack of notice is readily apparent.”[185]

         Although amending the bill of information the morning of trial is far from best practice, the Court's “distaste for the government's conduct does not . . . warrant a reversal, ” as “an error in administering the discovery rules is not reversible absent a showing that the error was prejudicial to the substantial rights of the defendant.”[186] The Court finds no error in the Louisiana Supreme Court's conclusion that Chester was not prejudiced by the State's amendment to the bill of information the morning of trial, and as a result, the Court concludes the Louisiana Supreme Court's holding with respect to this claim was not (1) contrary to, and did not involve an unreasonable application of, clearly established Federal law, as determined by the U.S. Supreme Court, nor was it (2) based on an unreasonable determination of the facts in light of the evidence presented in the state court proceeding.[187]

         B. Trial Court's Statements During Voir Dire

         Chester next complains he was prejudiced by the trial court's statements to the jury during voir dire. Specifically, Chester alleges he was prejudiced when the trial court judge told the initial nine jurors selected that they would be sequestered and informed them of the location of their sequestration, adding:

All right. If you want to make a phone call, just let somebody know what's going on, that that's where you'll be staying. Ask them not to repeat that to anybody. We don't, we don't want the Press or anybody to know where you're staying, or the defendant. It's just better for you just to have some privacy; okay?[188]

         Chester contends this statement and an instruction to the prospective jurors that they not disclose their addresses in open court “were indisputably reversible error, ” as the statements demonstrate Chester did not receive the “full protection of the presumption of innocence.”[189] On direct appeal, the Louisiana Supreme Court found this claim lacked merit, finding that the trial court's statements, when viewed “in the context of the entire colloquy, ” made clear that the trial court did not single Chester out in the jury's presence or infer that she did not want Chester to know where the jurors were staying because he was dangerous. Rather “the trial judge explained that the reason for secrecy was for the jurors' privacy and to avoid communication with people in general, the press, the jurors' families as well as [Chester].”[190] The Court agrees with the Louisiana Supreme Court that this claim lacks merit.

         C. Jury Selection

         Chester next contends the Louisiana trial court deprived him of his right to be tried by a fair and impartial jury when it allowed Leslie Dawson to serve on the jury.[191] Citing to Ross v. Oklahoma, [192] Chester argues Dawson's presence on the jury violated his Sixth and Eighth Amendment rights.

         “[T]he Constitution presupposes that a jury selected from a fair cross section of the community is impartial, regardless of the mix of individual viewpoints actually represented on the jury, so long as the jurors can conscientiously and properly carry out their sworn duty to apply the law to the facts of the particular case.”[193] In Wainwright v. Witt, the U.S. Supreme Court held that “the proper standard for determining when a prospective juror may be excluded for cause because of his or her views on capital punishment . . . is whether the juror's views would ‘prevent or substantially impair the performance of his duties as a juror in accordance with his instructions and his oath.'”[194] To serve on a capital jury, a person must be willing to consider all potential sentencing options, in this case both death and life imprisonment.[195] If the prospective juror's opinions would prevent her from considering any sentencing option, then she must be stricken for cause.[196]

         During jury selection, both parties questioned the members of the venire about their positions on the death penalty. Dawson was asked what her position on the death penalty was, to which she responded:

Well, I believe if someone premeditated, it's a premeditated situation, that I don't feel why should they have even life imprisonment? If they take somebody else's life and this was thought about beforehand, if they're going to do this act why should they get the opportunity to life[?]”[197]

         Thereafter, the following exchange took place:

Q: So if the State of Louisiana proves a murder with specific intent, that they say-as we say-premeditated is not the word in Louisiana-but premeditated, would you-you're saying you would never be able to consider life imprisonment for that?
A: I wouldn't say never.
Q: Okay. What sort of information would you have to hear, what sort of evidence would you have to hear to be able to consider life imprisonment?
A: Well, it's kind of hard to answer that, to pinpoint one specific thing. I mean I think there's two sides to every story, so I'd have to know all the facts before I could do it, of course. But I do believe in it.
Q: Do you subscribe to the theory, “An eye for an eye, a tooth for a tooth”?
A: Pretty much. . . . Well, I mean there's always going to be some circumstances that will, you know, make me say differently, but I do believe in it.
Q: But you can't think of any of those circumstances?
A: When you were asking the other gentlemen about the age [whether the defendant's youth would be a factor], you know, I don't feel like that's a factor. I feel like if you're performing an adult crime, murder, then you need to pay the price. . . .
Q: What about the fact that the defendant was raised in an abusive alcoholic environment, would that make a difference?
A: I don't know. Because to me that's like putting the blame on someone else, “This poor person, because of what they were up against.” I just think back of years ago, I mean I think everything now is out of whack. I mean years ago when our parents were coming up and brought up in the Depression, they didn't go around killing people like they do today. That's just something you didn't do. And now everything's acceptable.[198]

         Defense counsel then moved to strike Dawson for cause, which the Court denied.[199]

         Chester raised this issue in his direct appeal to the Louisiana Supreme Court. The court found no error in the trial court's ruling, noting “Ms. Dawson did not rule out the consideration of a life sentence.”[200]

         A trial court's “predominant function in determining juror bias involves credibility findings whose basis cannot be easily discerned from an appellate record. These are the ‘factual issues' that are subject to § 2254(d).”[201] Although Dawson was not able to articulate the specific mitigating evidence that would sway her in favor of a life sentence rather than one of death, she at no point indicated she would be incapable of considering each potential sentencing option, including a life sentence. Thus, the Court finds this claim lacks merit.[202]

         D. The state trial court's jury charges

         Chester argues the state trial court's jury instructions during the guilt phase of trial violated his constitutional rights. Specifically, Chester contends the state trial court's instructions regarding Chester's right to testify own his own behalf, the burden of proof, commutation, and aggregating and mitigation factors, as well as the state trial court's failure to instruct the jury regarding Chester's theory of defense, violated Chester's Sixth Amendment right to a fair trial.

         1. The state trial court's instruction regarding Chester's right to testify on his own behalf

         Chester did not testify on his own behalf at trial. Following closing arguments, the trial court charged the jury as follows with respect to Chester's decision not to testify:

The defendant is permitted by law to testify in his own behalf. When he does not avail himself of this privilege, you should not consider this fact, or permit it to raise a presumption of guilt against him, and you should consider in determining his guilt or innocence only those facts testified to and brought out in the trial of this case.[203]

         Chester argues the trial court should have instructed the jury that Chester has a Fifth Amendment right not to testify and that the trial court's instructions impermissibly drew the jury's attention to Chester's decision not to testify.[204] He points to the U.S. Supreme Court's holding in Carter v. Kentucky, in which the U.S. Supreme Court held the trial court erred in refusing to instruct jury that defendant had a right not to testify and that the jury could draw no adverse inferences from his decision not to testify.[205] Ultimately, in Carter, the U.S. Supreme Court held that “the Fifth Amendment requires that a criminal trial judge . . . give a ‘no-adverse-inference' jury instruction when requested by a defendant to do so.”[206]

         In opposition, the State points to the U.S. Supreme Court's discussion in Boyde v. California, wherein the Court explained:

jurors do not sit in solitary isolation booths paring instructions for subtle shades of meaning in the same way that lawyers might. Differences among them in interpretation of instructions may be thrashed out in the deliberative process, with commonsense understanding of the instructions in the light of all that has taken place at the trial likely to prevail over technical hairsplitting.[207]

         The Louisiana Supreme Court found Chester's claim involved the kind of “technical hairsplitting” the U.S. Supreme Court cautioned against in Boyde. The Louisiana Supreme Court explained: “Read in its entirety, [the trial court's jury instructions] instructs the jurors that they are not to draw any inference from defendant's decision not to testify.”[208] This Court agrees.

         Further, the facts in Carter are readily distinguishable from this case. In Carter, the district court refused entirely to instruct the jury regarding the defendant's right not to testify on his own behalf entirely. In this case, the district court properly instructed the jury that Chester's decision not to testify should not be considered, and that the jury should not “permit it to raise a presumption of guilt against him, ”[209] in compliance with Carter.[210] As a result, the Court finds the Louisiana Supreme Court's holding is not (1) contrary to and did not involve an unreasonable application of, clearly established Federal law, as determined by the U.S. Supreme Court, nor was it (2) based on an unreasonable determination of the facts in light of the evidence presented in the state court proceeding.[211]

         2. The state trial court's instruction regarding the burden of proof

         Chester next complains the state trial court's jury instruction regarding the definition of reasonable doubt “reduce[d] the State's burden of proof below the standard set by [the U.S. Supreme Court in] In re Winship.”[212] According to Chester, the court erroneously placed an obligation on Chester to call witnesses and present a defense by instructing the jury that:

Witnesses are weighed and not counted. Your function is to determine the facts, and this is not done by counting noses. The test is not which side brings the greater quantity of evidence, but rather, which witnesses and which evidence appeals to your minds as being the most convincing.[213]

         The Louisiana Supreme Court held that “review of the instruction reveals that it tracks the language in the Louisiana Judge's Criminal Bench Book, Vol I, § 303 (1993) and did not include any terms which would mislead the jury.”[214] The Court finds the Louisiana Supreme Court's resolution of this claim was reasonable and not otherwise contrary to AEDPA or U.S. Supreme Court precedent.

         3. The state trial court's instruction regarding commutation

         Next, Chester submits the trial court's instruction regarding the fact that the governor of Louisiana has the power to commute life and death sentences violated his Eighth and Fourteenth Amendment rights.[215] With respect to this claim, the Louisiana Supreme Court found it lacked merit, as “[t]he instruction tracked the language of the statute” and that the Louisiana Supreme Court had “recently found that the statute is constitutional.”[216] The Court finds the Louisiana Supreme Court's resolution of this claim was reasonable and not otherwise contrary to AEDPA or U.S. Supreme Court precedent.

         4. The state trial court's instruction on aggravating and mitigation factors

         Chester next contends the trial court instructed the jury that it must “weigh” the aggravating circumstances against the mitigating circumstances in determining the appropriate sentence in violation of his Fifth, Sixth, Eighth, and Fourteenth Amendment rights.[217] The trial court provided the following charge to the jury at the close of the sentencing phase:

You are required to consider the existence of aggravating and mitigating circumstances in deciding which sentence should be imposed. Each individual juror shall weigh the aggravating circumstances found unanimously to exist and any mitigating circumstances found by the individual jurors to exist. . . .
Even if you find the existence of an aggravating circumstance, you must also consider any mitigating circumstances before you decide that a sentence of death should be imposed. . . .
However, in addition to those specifically provided mitigating circumstances, you must also consider any other relevant mitigating circumstances which are defined. You may consider any other relevant circumstances which you feel should mitigate the severity of the penalty imposed.[218]

         According to Chester, this is an incorrect statement of Louisiana law, and “at best, unclear.”[219]

         The Louisiana Supreme Court found this claim to be without merit because “Although the court used the word ‘weigh' in instructing the jurors, the instruction did not suggest that the jurors balance the number of aggravating circumstances against the number of mitigating circumstances.”[220] The Louisiana Supreme Court went on to state: “The record supports a conclusion that the jury understood any weighing as a qualitative rather than a quantitative process.”[221] This Court agrees with the Louisiana Supreme Court and finds its resolution of this claim was reasonable and not otherwise contrary to AEDPA or U.S. Supreme Court precedent.[222]

         5. The state trial court's failure to instruct the jury regarding Chester's theory of defense

         Finally, Chester argues the state trial court's failure to instruct the jury that a substance falsely represented as a controlled dangerous substance is not a controlled dangerous substance under Louisiana law.[223] The Louisiana Supreme Court denied this claim as moot. The Louisiana Supreme Court explained:

Defense counsel argued that defendant admitted in his second statement that he had only fake cocaine or bunk on his person; however, the prosecutor argued that in his first statement, defendant stated he was attempting to sell crack cocaine and that defendant changed his story from selling crack to selling “bunk” to avoid implicating himself in criminal activity. Nonetheless, the trial judge allowed defense counsel to argue the issue in closing argument, thus fully informing the jury of the defense. Moreover, considering that the jury only found the aggravating circumstance of attempted armed robbery during the penalty phase it appears that jurors completely rejected the state's drug transaction scenario. Therefore, the trial judge's failure to read the special charge did not prejudice defendant.[224]

         This Court agrees with the Louisiana Supreme Court and finds its resolution of this claim was reasonable and not otherwise contrary to AEDPA or U.S. Supreme Court precedent.

         V. Juror Misconduct

         A. Improper experimentation

         During deliberations following the guilt phase of trial, jurors requested access to “all physical evidence, ” including photographs of the crime scene and a mannequin head that was used as a prop in the State's case-in-chief. According to Chester, “In a post-conviction interview, foreman John Guillot revealed that jurors attempted to identify the bullet trajectory for themselves by experimenting in deliberations with the State's mannequin prop.”[225] Guillot explained the jurors used the prop to determine whether Chester was in fact the shooter.[226] Chester argues this violated his Sixth Amendment right to a fair trial.[227]

         On review, the Louisiana Supreme Court held that “Because Chester does not allege that jurors conducted any experiment which effectively gave rise to evidence other than that presented at trial, he fails to show any basis for examining the jury's deliberations as to this issue.”[228] In support of his argument that the Louisiana Supreme Court's holding with respect to this claim is unreasonable, Chester points to United States v. Beach, [229] a case from the Fourth Circuit. In Beach, the Fourth Circuit explained:

A jury may not conduct experiments which have the effect of putting them in possession of evidence not offered at the trial. Jurors conducting such an experiment are guilty of misconduct warranting a new trial, unless in the circumstances no prejudice results, as where the verdict has already been agreed upon and is clearly right. Improper experiments include experiments with firearms to test the truth of testimony, and ascertainment by jurors for themselves whether voices can be heard out-of-doors, whether signatures can be perfectly traced, or whether a worn shoe would make tracks described at the trial.[230]

         Even assuming the rationale in Beach applies, which the Louisiana Supreme Court found it did not, [231] Chester has not pointed to any U.S. Supreme Court holding that such juror experimentation violates the Sixth Amendment. The Court will not issue the writ on this basis.

         B. Consulting the Bible

         Again pointing to the post-Judgment statement from Guillot, Chester contends a female juror, presumably Iris Gravelee, [232] made her decision to vote in favor of a death sentence only after consulting her Bible.[233] According to Guillot, Gravelee initially indicated she would vote for a life sentence before the jury suspended deliberations for the evening, but when the jury reconvened in the morning, Gravelee had “changed her vote to death” and had “made her decision with her Bible.”[234]

         Chester contends this “external influence” prejudiced him and deprived him of his Sixth Amendment right to a fair trial. Chester points to Oliver v. Quarterman, [235] in support of his assertion. In Oliver, the Fifth Circuit explained that a Bible will serve as a particularly powerful influence when consulted by jurors during penalty deliberations in a capital trial “precisely because it may . . . influence[] the jurors simply to answer the questions in a manner that would ensure a sentence of death instead of conducting a thorough inquiry into the[] factual areas.”[236]

         The state district court concluded Chester could not present evidence related to this claim, applying Louisiana Code of Evidence article 606(B), Louisiana's juror shield law. On review, the Louisiana Supreme Court found the district court's application of the juror shield law was erroneous, but nevertheless affirmed the outcome as the Louisiana Supreme Court found the juror's consultation of the Bible did not have a “substantial and injurious effect on the verdict.”[237] The Louisiana Supreme Court explained:

Chester fails to make the required showing of a substantial and injurious effect on the verdict because, although he asserts his post-conviction interviews with Foreperson Guillot and Juror Lawson contained detailed descriptions of their observations of Gravlee's consultation of a Bible after an overnight recess, which allegedly led Gravelee to decide her penalty phase vote, Chester has not provided the necessary proof to substantiate his allegations. Even setting aside whatever practical concerns may arise from the fact that Gravlee has since passed away, no affidavits from Guillot or Lawson were attached as exhibits to the instant application. Because Chester has not substantiated his assertions, he fails to show any grounds for remand.[238]

         Chester contends this holding was an unreasonable factual conclusion, as the Louisiana Supreme Court simultaneously held that (1) the state district court erred in barring Chester from presenting evidence with respect to this claim, but that (2) Chester had failed to present sufficient evidence in support of the claim.[239]

         Noting the contradictory nature of the Louisiana Supreme Court's holding, on January 16, 2018, Chester filed a motion for an evidentiary hearing in this Court, arguing he is entitled to a hearing on, inter alia, his claim that Ms. Gravlee's consultation of her Bible and subsequent vote in favor of the death sentence violated his Sixth Amendment rights.[240] Under AEDPA, requests for an evidentiary hearing are evaluated under the provisions of 28 U.S.C. § 2254(e)(2).[241] AEDPA allows a federal district court to hold an evidentiary hearing if two conditions are met: (1) the petition's factual allegations, if true, would entitle the petitioner to relief; and (2) for reasons beyond the petitioner's control, the factual claims were not previously the subject of a full and fair hearing in the state court.[242]

         The second factor, that the state did not afford Chester a full and fair hearing, is met in this case. Louisiana Code of Criminal Procedure articles 926 and 928 set forth the pleading requirements for post-conviction petitioners. These articles explain that a petitioner's burden in his initial petition is to set forth the factual basis of his claims with reasonable particularity and to plead claims which, if established, would entitle him to relief.[243] In turn, if issues of fact exist that cannot be resolved on the pleadings alone, Article 930 requires the Louisiana district court to hold an evidentiary hearing.[244] Thus, under Louisiana law, there is no requirement that a post-conviction petitioner submit affidavits in support of his well-pleaded claims, and therefore, Chester's failure to attach Guillot's affidavit to his state court petition does not bar this Court from considering the claim.

         Having found that Chester's factual claims were not previously the subject of a full and fair hearing in the state court for reasons beyond Chester's control, the Court now considers whether Chester has alleged facts that, if taken as true, would entitle him to relief. In his petition, Chester alleges that while deliberations during the penalty phase of trial were suspended overnight, a juror consulted her Bible outside of the jury room, and the next day changed her vote to death as a result.

         Under U.S. Supreme Court case law, the Sixth Amendment forbids a jury from being exposed to external influences during its deliberations.[245] In Oliver, the case to which Chester points in support of his claim, the petitioner appealed the district court's denial of a writ of habeas corpus, arguing the jury violated the Sixth Amendment by considering passages from the Bible during the sentencing phase of its deliberations. The Fifth Circuit held that the jury's consideration of the Bible, which was not in evidence, violated the Sixth Amendment. The Fifth Circuit nevertheless affirmed the district court's denial of the writ, stating that “[a]lthough the jury improperly consulted the Bible, ” the petitioner was not entitled to a writ of habeas corpus, because the petitioner did “not present[] clear and convincing evidence to rebut [the Louisiana court's] factual finding” “that the Bible did not influence the jury's decision.”[246]

         The factual underpinnings of Oliver are significantly more troublesome than the facts Chester alleges, and, even under that scenario, the Fifth Circuit affirmed the denial of the writ. In Oliver, several jurors brought Bibles into the jury room with them. Moreover, during deliberations, one juror read several passages aloud to his fellow jurors. As the Fifth Circuit in Oliver explained:

The question before us is not whether a juror must leave his or her moral values at the door or even whether a juror may consult the Bible for his or her own personal inspiration during the deliberation process. This case is also not about whether jurors must forget that, generally, the Bible includes the concept of an “eye for an eye.” Therefore, we need not address these issues. Instead, here, several jurors collectively consulted a Bible, in the jury room, and likely compared the facts of this case to the passage that teaches that capital punishment is appropriate for a person who strikes another over the head with an object and causes the person's death.[247]

         Chester's allegation that Ms. Gravlee voted for death only after consulting her Bible does not establish a Sixth Amendment violation under Oliver. Moreover, although the U.S. Supreme Court has held the Sixth Amendment forbids a jury from being exposed to external influences during its deliberations, it is not clearly established that a juror's consultation of the Bible outside of the deliberation room constitutes such an external influence.

         On this point, the lack of U.S. Supreme Court precedent addressing the issue, Justice Thomas's dissent from the denial of certiorari in Hurst v. Joyner is instructive.[248]In Hurst, the petitioner asserted that his constitutional rights were violated when a juror asked her father where she could look in the Bible for passages about the death penalty. The petitioner attached the affidavit of juror Christina Foster, in which she stated she had “often had lunch with [her] father who worked near the courthouse” during the trial and, before deliberations, had asked him “where [she] could look in the Bible for help and guidance in making [her] decision for between life and death.” Her father gave her “the section in the Bible where [she] could find ‘an eye for an eye.'” Based on this background, the U.S. District Court for the Middle District of North Carolina denied the writ.[249] The Fourth Circuit reversed, finding Ms. Foster had inappropriately consulted the Bible in violation of the Sixth Amendment.[250] The State then filed a petition for certiorari, which the U.S. Supreme Court denied.[251]

         Justice Thomas, who was joined by Justice Alito, dissented from the Court's denial of certiorari, explaining:

One of the all too common errors that some federal courts make in applying § 2254(d) is to look to their own precedents as the source of “clearly established Federal law” for purposes of § 2254(d)(1), even though that provision expressly limits that category to Supreme Court precedents.
The Fourth Circuit's decision in Barnes-upon which it relied in Hurst- committed the same error. That court reasoned that our decision in Remmer “created a rebuttable presumption of prejudice applying to communications or contact between a third party and a juror concerning the matter pending before the jury.” But Remmer offered no specific guidance on what constituted “the matter pending before the jury.” Nevertheless, the Court of Appeals turned to its own precedents to determine whether the moral and spiritual implications of the death penalty as a general matter constituted “the matter pending before the jury.” It cited its earlier decisions in Stockton v. Virginia, 852 F.2d 740 (4th Cir. 1988), and United States v. Cheek, 94 F.3d 136 (4th Cir. 1996), as setting forth a “‘minimal standard'” under which “[a]n unauthorized contact between a third party and a juror concerns the matter pending before the jury when it is ‘of such a character as to reasonably draw into question the integrity of the verdict.'” Neither of those decisions is a precedent of this Court.[252]

         Justice Thomas explained that he would have granted the petition for certiorari to correct what he perceived as the Fourth Circuit's error-applying its own case law to overturn a state court judgment. Instead, the Fourth Circuit could overturn the state court judgment only based on U.S. Supreme Court precedent, as AEDPA requires.[253]

         Because granting a writ of habeas corpus based on this claim-specifically, that a single juror's consultation of the Bible outside of the jury room violates the Sixth Amendment-would be an extension of both U.S. Supreme Court and Fifth Circuit precedent, the Court finds the Louisiana Supreme Court's disposition of this claim was not was contrary to or an unreasonable application of the Supreme Court precedents applicable to juror-influence claims, and this Court will not issue the writ on this basis.

         VI. Sufficiency of the Evidence

         Chester next contends the evidence against him was not sufficient to support his conviction and death sentence.[254] “[A] federal court may not overturn a state court decision rejecting a sufficiency of the evidence challenge simply because the federal court disagrees with the state court. The federal court instead may do so only if the state court decision was ‘objectively unreasonable.'”[255]

         In this case, at trial, the State presented the testimony of Quinice and Kaprice Pollard, both of whom testified that Chester confessed that he shot Adams. Further, although the validity of the testimony and forensic evidence have since come into question, at trial the State also presented testimony that: (1) Chester had Adams' blood on his hat, and (2) the only way Chester could have gotten Adams' blood on him is if he were the shooter. In determining whether the evidence presented at trial is sufficient to sustain a conviction, the Court must draw all inferences in favor of upholding the jury's verdict:

Unless the evidence is of such quality and weight that reasonable and impartial jurors could not arrive at such a verdict, the findings of the jury must be upheld. [The Court] may not reweigh the evidence, re-evaluate the credibility of the witnesses, nor substitute our reasonable factual inferences for the jury's reasonable inferences. [The Court] must view the evidence in the light most favorable to upholding the jury's verdict and may only reverse if the evidence points so strongly and overwhelmingly in favor of one party that the court believes that reasonable men could not arrive at a contrary conclusion.[256]

         Based on the evidence offered at trial, the Court concludes the Louisiana Supreme Court's determination that the State presented sufficient evidence of Chester's guilt is not objectively unreasonable.

         VII. Eighth Amendment Claims

         Chester complains that solitary confinement and the death penalty constitute cruel and unusual punishment in violation of the Eighth Amendment.[257] Without such a pronunciation from the U.S. Supreme Court, this Court finds Chester's Eighth Amendment claims lack merit.

         VIII. Cumulative Error Claim

         Chester argues his trial was so filled with error as to deprive him of his right to a fair trial.[258] He contends the Louisiana Supreme Court's failure to view each of his claims for cumulative error was contrary to clearly established Federal law, pointing to Derden v. McNeel, a case in which the Fifth Circuit recognized an independent claim based on cumulative error.[259] In Derden, the Fifth Circuit explained the cumulative error doctrine applies only where “(1) the individual errors involved matters of constitutional dimensions rather than mere violations of state law; (2) the errors were not procedurally defaulted for habeas purposes; and (3) the errors ‘so infected the entire trial that the resulting conviction violates due process.'”[260] Although some U.S. Courts of Appeals have recognized the cumulative error doctrine, [261] the U.S. Supreme Court has not explicitly done so. Thus, the Louisiana Supreme Court's failure to apply the doctrine to Chester's case was not contrary to clearly established Federal law, as articulated by the U.S. Supreme Court, and the Court will not grant Chester a writ of habeas corpus on this basis.

         IX. Chester's Ineffective Assistance Claims

         At trial, the State based its case against Chester on: (1) the theory that the only way Chester's cap could have gotten blood on it was if Chester was positioned directly behind Adams when the gun was fired, not in the rear passenger seat, as Chester stated to police; (2) the argument that the DNA found on Chester's cap was Adams', and (3) testimony from Quinice and Kaprice Pollard, both of whom testified that Chester confessed to shooting Adams. In addition, the State rested its theory with respect to the blood spatter evidence on: (1) the DNA testing done on Chester's cap, [262] and (2) Sergeant Thornton's testimony that blood spatter from a gunshot wound “blows back” in the direction from which the shot was fired.[263] Chester's counsel presented a single witness to testify on his behalf during the guilt phase.

         In his petition for habeas in state court and before this Court, Chester argues his trial counsel rendered ineffective assistance of counsel during the guilt and penalty phases of his trial. In support of this claim, Chester presents several pieces of evidence discovered by his state habeas counsel:

(1) Evidence that Chester's blood can be scientifically excluded from the blood drops found on his cap;[264]
(2) Evidence that the blood found on Chester's cap was likely not Adams' blood and that the statistical probability the blood sample contained Adams' blood is a “scientific nullity”;[265]
(3) Evidence that Sergeant Thornton's “description of the phenomenon [blood spatter] and his interpretations of the [blood] stains [in Adams' cab] . . . were inaccurate”;[266] and
(4) Evidence that eight witnesses, including an eyewitness, none of whom was interviewed by the defense, would have substantiated Chester's contention that Ratcliff, not Chester, shot Adams and would have offered testimony suggesting Quinice testified falsely.[267]

         Chester submits, among other ineffective assistance claims, [268] that trial counsel's failure to (1) present testimony from several witnesses who would have corroborated Chester's assertion that he was not the shooter, (2) challenge Sergeant Thornton's lay blood spatter testimony, and (3) determine the validity of the State's DNA testing before stipulating to its results rendered her performance constitutionally deficient and that those deficiencies prejudiced Chester. The Court considers each claim in turn.

         A. Standard of Review

         The clearly established Federal law applicable to Chester's ineffective assistance claim is Strickland v. Washington's familiar two part test.[269] Under Strickland, a petitioner must demonstrate (1) that his counsel's performance was deficient and (2) that his counsel's deficient performance prejudiced ...


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