SUPERVISORY WRITS TO THE FOURTEENTH JUDICIAL DISTRICT COURT,
PARISH OF CALCASIEU
In 2004, a Calcasieu Parish jury found relator, Jason M.
Reeves, guilty of the first degree murder of four-year-old
M.J.T. At trial, the state presented evidence
that Reeves abducted, raped, and murdered M.J.T. on the
afternoon of November 12, 2001. The state's evidence
linking Reeves to the murder included semen matching
Reeves's DNA profile recovered from M.J.T.'s anus,
fibers and dog hairs linking the victim's clothing to
Reeves's vehicle, man-trailing dog evidence which tracked
Reeves's scent to critical areas associated with the
crime, witness statements placing Reeves and his vehicle at
the trailer park from which M.J.T. was abducted and the
cemetery near which her body was found, and a confession.
finding Reeves guilty as charged, jurors unanimously agreed
to impose a sentence of death in light of the aggravating
circumstances that Reeves was engaged in the perpetration or
attempted perpetration of aggravated rape at the time of the
murder; that the victim was under the age of 12 years; and
that the offense was committed in an especially heinous,
atrocious, or cruel manner. The trial court sentenced Reeves
to death by lethal injection in accord with the jury's
determination. This Court affirmed the conviction and
sentence. State v. Reeves, 06-2419 (La. 5/5/09), 11
So.3d 1031, cert. denied, 558 U.S. 1031, 130 S.Ct.
637, 175 L.Ed.2d 490 (2009).
2009, Reeves filed a pro se "shell" application for
post-conviction relief. Through counsel, Reeves subsequently
amended and supplemented his original application to allege
some 18 claims for relief. Two of those claims have already
been fully litigated. See State ex rel. Reeves v.
Vannoy, 16-2199 (La. 1/23/17), 209 So.3d 87 (finding no
abuse of the district court's discretion in denying
Reeves's request to further supplement his application
for post-conviction relief with a claim under Penry v.
Lynaugh, 492 U.S. 302, 109 S.Ct. 2934, 106 L.Ed.2d 256
(1989)); State v. Reeves, 15-1668 (La. 4/4/16), 188
So.3d 257 (denying writs because Reeves failed to prove by a
preponderance of the evidence that he suffers from a mental
disability that renders him ineligible for execution). The
district court denied three other claims on procedural
grounds and dismissed four others without prejudice.
the district court conducted an evidentiary hearing to
address the remaining nine claims, all of which urged
ineffective assistance of trial counsel. It heard testimony
from Kerry Cuccia (lead defense counsel from Reeves's
first trial), now-Judge Ronald Ware (lead defense counsel
from Reeves's second trial), Rick Bryant (the district
attorney who prosecuted Reeves in both trials), and Cynthia
Killingsworth (an assistant district attorney who aided
Bryant in both trials). The district court also considered a
deposition from Charles St. Dizier, a member of Ware's
team in the second trial whose primary responsibility was in
the penalty phase. After consideration of this evidence, the
district court denied each claim, finding them meritless.
now assigns eight errors and seeks review of the district
court's denial of 10 of his post-conviction claims for
relief (one procedural ruling and nine merits rulings). For
the following reasons, the district court reached the correct
result in denying the application for post-conviction relief.
State v. Lee, 14-2374, pp. 8-9 (La. 9/18/15), 181
So.3d 631, 638, another post-conviction capital case, we
explained that an "attempt to re-litigate a claim that
has been previously disposed of, by couching it as a
post-conviction ineffective assistance of counsel claim,
[should be] generally unavailing." As we found in
Lee, Reeves's post-conviction ineffective
assistance of counsel claims predicated upon issues which
were in fact resolved on appeal are not truly new claims. The
district court correctly dismissed Reeves's first
claim-that Ware and his team suffered from "forced
ineffectiveness" as a result of their appointment with
just over six months to prepare for trial-under La.C.Cr.P.
art. 930.4(A). On direct review, this Court devoted
considerable attention to the propriety of this substitution
of counsel under the circumstances of this case, and we
expressly addressed the contention that the trial court erred
in failing to grant a continuance. See Reeves,
06-2419, pp. 12- 74, 11 So.3d at 1042-79. Reeves's
standalone "forced ineffectiveness" claim finds
itself predicated upon these same issues and is barred from
Reeves argues that Ware rendered ineffective assistance by
failing to utilize three experts called by Cuccia in the
first trial: 1) a DNA expert to testify that the sample
recovered from the victim's anus was "too
pristine" given the circumstances of where and when her
body was located; 2) a fingerprint expert who purportedly
would have testified that the latent prints found on the
victim's arm and inner thigh could exclude Reeves as a
source; and 3) a traffic engineer to cast doubt upon the
state's proposed timeline of events.
the standard for ineffective assistance of counsel set out in
Strickland v. Washington466 U.S. 669, 104 S.Ct.
2052, 80 L.Ed.2d 674 (1984), a reviewing court must reverse a
conviction if the petitioner establishes (1) that
counsel's performance fell below an objective standard of
reasonableness under prevailing professional norms; and (2)
that counsel's inadequate performance prejudiced
defendant to the extent that the trial was rendered unfair
and the verdict suspect. Whether to call a witness is within
the ambit of trial strategy. See State v. Johnson,
619 So.2d 1102, 1109 (La.App. 4 Cir. 1993).
explicitly testified at the evidentiary hearing that he did
not have a strategic reason for opting not to call any of
these witnesses. However, he did not testify that he was
unaware of these witnesses because of any lack of
preparation; instead, Ware stated he felt "certain"
and "sure" that he reviewed these witnesses'
testimony from the first trial. He cited no funding issues
with respect to securing the presence of any of these
witnesses, but in one case-concerning the fingerprint
expert-he explained that there might have been trouble
locating the witness.
simply impossible to determine from the evidence elicited at
the evidentiary hearing why Ware did not call at least two of
these proposed witnesses. "Judicial scrutiny of
counsel's performance must be highly deferential. . . .
Even the best criminal defense attorneys would not defend a
particular client in the same way." Strickland,
466 U.S. at 689, 104 S.Ct. at 2065. That Ware proceeded
differently than did Cuccia is not itself indicative of
deficient performance, especially where Ware's testimony
lends little insight into exactly why these witnesses were
assuming deficient performance, however, Reeves has failed to
prove resultant prejudice. Though these three witnesses may
have cast doubt upon certain portions of the state's
case, the evidence introduced at the post-conviction
proceedings does not rise to the level of proving that the
omission of this testimony at the second trial "more
likely than not altered the outcome in the case."
See Strickland, 466 U.S. at 693, 104 S.Ct. at 2068.
In addition to the evidence these witnesses' testimony
may have undermined, the state also presented fiber evidence,
man-trailing dog evidence, eyewitness identifications, and
Reeves's confession. This claim lacks merit.
Reeves asserts that Ware failed to take adequate steps to
challenge or otherwise confront the state's evidence from
the man-trailing dog handler, including securing a defense
expert to attack the dog's reliability and challenging
the dog's qualifications.
man-trailing dog and its handler were the subject of an
assigned error on direct appeal. At that time, Reeves argued
that the trial court erred in failing to hold a
Daubert hearing concerning the dog and handler's
expertise. This Court explained that Ware objected both
pretrial and at trial to the introduction of this evidence,
Thereafter, Mark Holmes, a detective with the Port Arthur,
Texas Police Department, and the K-9 handler for the
man-trailing dog which participated in the investigation of
this matter, "Bo," was examined in the presence of
the jury on his own training, certification, and experience,
as well as on his dog's pedigree, training and
experience. Only after this foundation was laid did the state
elicit testimony regarding their involvement in the
Reeves, 06-2419, p. 110 (unpub'd appx.).
the dog and handler's qualifications were probed before
the jury, even if Ware himself might not have
"challenged" them. While Ware expressed some regret
at the evidentiary hearing about how he handled the
cross-examination of this witness, counsel's choices of
which questions to ask on cross-examination fall well within
the ambit of trial strategy. See, e.g.,
State v. Brooks, 94-2438, pp. 6-7 (La. 10/16/95),
661 So.2d 1333, 1337. Although Ware could not articulate at
the evidentiary hearing why he failed to ask certain
questions of the dog handler, Reeves's current claims
rely improperly upon the "distorting effects of
hindsight" cautioned against in Strickland, 446
U.S. at 689, 104 S.Ct. at 2065.
though Reeves faults Ware for failing to call a
counter-expert, he fails to demonstrate that funding was (or
could have been made) available or the nature of that
proposed expert's testimony. See La.C.Cr.P. art.
930.2; see also Day v. Quarterman, 566 F.3d 527, 538
(5th Cir. 2009) ("[T]o prevail on an ineffective
assistance claim based on counsel's failure to call a
witness, the petitioner must name the witness, demonstrate
that the witness was available to testify and would have done
so, set out ...