United States District Court, W.D. Louisiana, Monroe Division
JOSEPH D. BLUEFORD L.A. DOC # 393195
TIMOTHY HOOPER, WARDEN
A. DOUGHTY JUDGE.
REPORT AND RECOMMENDATION
L. Hayis United States Magistrate.
Joseph D. Blueford, an inmate in the custody of the Louisiana
Department of Corrections in St. Gabriel, Louisiana, filed
the instant petition for writ of habeas corpus pursuant to 28
U.S.C. § 2254 on May 15, 2017. [doc. # 1]. Petitioner
attacks his March 22, 2012 convictions for aggravated battery
and possession of a firearm by a convicted felon, his
designation as a habitual offender, and his sentences of life
at hard labor and a concurrent 65-year hard labor term
imposed thereon by Louisiana's 4th Judicial District
Court, Parish of Morehouse. This matter has been referred to
the undersigned for review, report, and recommendation in
accordance with the provisions of 28 U.S.C. § 636 and
the standing orders of the Court.
was charged with two counts of attempted second degree
murder, a violation of La. R.S. 14:27 and 14:30.1, and
possession of a firearm by a convicted felon, a violation of
La. R.S. 14:95.1. On March 22, 2012, the jury acquitted
Blueford of one count of attempted murder and convicted him
of aggravated battery on the second count and possession of a
firearm by a convicted felon. Subsequently, the state filed a
habitual offender bill, and the district court found that the
defendant was a fourth-felony offender. On March 7, 2013,
Blueford was sentenced to serve a life sentence, without
parole, at hard labor for aggravated battery and a concurrent
65-year hard labor term, without parole, for possession of a
firearm by a convicted felon.
filed a direct appeal in the Second Circuit Court of Appeal,
raising six claims for relief: (1) insufficient evidence to
support the convictions; (2) evidence of prior crimes was
inadmissible; (3) limited cross examination was
impermissible; (4) excessive sentence; (5) illegal jury of 11
persons; and (6) conviction by a non-unanimous jury was
unconstitutional. [doc. # 16-4 at 1360-1403]. On March 5,
2014, the Second Circuit affirmed Blueford's convictions
and sentences. Blueford, 137 So.3d 54. The Louisiana
Supreme Court denied Blueford's subsequent application
for writ of certiorari on November 21, 2014. State v.
Blueford, 2014-0745 (La. 11/21/14), 160 So.3d 968.
Blueford filed a petition for certiorari in the United States
Supreme Court, which was denied on April 27, 2015.
Blueford v. Louisiana, 135 S.Ct. 1900 (2015).
April 8, 2016, Blueford filed an application for
post-conviction relief in the district court. He alleged he
was denied effective assistance of counsel when his trial
counsel, George W. Britton III, (1) failed to object to a
juror, Helen Massey, remaining on the jury and returning a
verdict when she said she had not heard or understood the
evidence; and (2) failed to file a Motion to Quash the
Habitual Offender Bill of Information on grounds that it
contained allegations of irrelevant convictions, and failed
to object to the inclusion and consideration of such
convictions at the habitual offender hearing. Blueford also
claimed that the trial court erred when it permitted juror
Massey to cast the deciding vote on guilt after admitting she
did not hear and did not understand any of the testimony.
[doc. # 16-5 at 1473-1504].
district court denied the application on August 29, 2016.
[doc. # 16-5 at 1505-08]. The Second Circuit Court of Appeal
denied Blueford's application on December 8, 2016. [doc.
# 16-5 at 1543]. On February 1, 2017, Blueford filed a writ
application in the Louisiana Supreme Court, [doc. # 16-5 at
1544-76], which the court denied as untimely on April 24,
2017. [doc. # 16-5 at 1577-78].
15, 2017, Blueford filed the instant federal habeas corpus
petition raising the same claims as in the state court:
Claim One: Petitioner was denied effective assistance of
counsel in violation of the Fifth, Sixth, and Fourteenth
Amendments to the United States Constitution and Article 1,
Section 13 of the Louisiana Constitution when counsel
(1) failed to object to Ms. Massey remaining on the jury and
returning a verdict when she said she had not heard or
understood the evidence; and
(2) failed to file a Motion to Quash the Habitual Offender
Bill of Information on grounds that it contained allegations
of irrelevant convictions, and failed to object to their
inclusion and consideration at the habitual offender hearing.
Claim Two: The trial court erred when it permitted a juror to
cast the deciding vote on guilt after admitting she did not
hear and did not understand any of the testimony, in
violation of the right to a fair trial and due process under
the Fifth, Sixth, and Fourteenth Amendments to the United
States Constitution and Article 1, Section 17 of the
[see docs. # 1-2, 5].
State filed its response on March 14, 2018. [docs. # 15,
On March 26, 2018, Blueford filed a reply. [doc. # 17]. On
August 28, 2018, the undersigned held an evidentiary hearing
on the issue of juror competence, with testimony from
Petitioner, his trial counsel, the prosecutor in his case,
Stephen Sylvester, and a member of the petit jury from
Petitioner's trial. [docs. # 19, 28]. After post-hearing
briefing, [docs. # 30, 31, 32], the matter is now ripe.
of Review - 28 U.S.C. § 2254
Antiterrorism and Effective Death Penalty Act
(“AEDPA”) of 1996, 28 U.S.C. § 2254, governs
habeas corpus relief. The AEDPA limits how a federal court
may consider habeas claims. After a state court has
adjudicated a prisoner's claims on the merits, federal
review “is limited to the record that was before the
state court.” Cullen v. Pinholster, 563 U.S.
170, 181 (2011). An application for a writ of habeas corpus
should be granted if the petitioner shows that the
adjudication of the claim in state court:
(1) resulted in a decision that was contrary to, or involved
an unreasonable application of, clearly established Federal
law, as determined by the Supreme Court of the United States;
(2) resulted in a decision that was based on an unreasonable
determination of the facts in light of the evidence presented
in the State court proceeding.
28 U.S.C. § 2254(d)(1)-(2).
decision is “contrary to” clearly established
Federal law “if the state court arrives at a conclusion
opposite to that reached by . . . [the Supreme Court] on a
question of law or if the state court decides a case
differently than . . . [the Supreme Court] has on a set of
materially indistinguishable facts.” Dowthitt v.
Johnson, 230 F.3d 733, 740-41 (5th Cir. 2000) (quoting
Williams v. Taylor, 529 U.S. 362, 412-13 (2000)).
“The ‘contrary to' requirement refers to
holdings, as opposed to the dicta, of . . . [the Supreme
Court's] decisions as of the time of the relevant
state-court decision.” Id. at 740 (citations
and internal quotations omitted). Under the
“unreasonable application” clause, a federal
habeas court may grant the writ only if the state court
“identifies the correct governing legal principle from
. . . [the Supreme Court's] decisions but unreasonably
applies the principle to the facts of the prisoner's
case.” Id. at 741.
2254(d)(2) speaks to factual determinations made by the state
courts. Federal courts presume such determinations to be
correct; however, a petitioner can rebut this presumption by
clear and convincing evidence. 28 U.S.C. § 2254(e)(1).
AEDPA has put into place a deferential standard of review,
and a federal court must defer to a state court adjudication
on the merits. Valdez v. Cockrell, 274 F.3d 941, 950
(5th Cir. 2001). “As a condition for obtaining habeas
corpus from a federal court, a state prisoner must show that
the state court's ruling on the claim being presented in
federal court was so lacking in justification that there was
an error well understood and comprehended in existing law
beyond any possibility for fairminded disagreement.”
Harrington v. Richter, 562 U.S. 86, 103 (2011).
statutory scheme is designed to discourage state prisoners
from submitting new evidence in federal court.
Cullen, 563 U.S. at 186. However, when a state court
fails to adjudicate a claim on the merits, a federal court
may consider new evidence. See Rapelje v. McClellan,
134 S.Ct. 399, 400 (2013) (“A federal evidentiary
hearing is permissible for a particular claim only if . . .
the claim was not ‘adjudicated on the merits by a state
court.'”). Here, the state court did not hold a
hearing or make findings of fact on Blueford's claim that
his Sixth Amendment right to effective assistance of counsel
was violated when trial counsel failed to object to a juror
remaining on the jury after she said she failed to hear or
understand the evidence. Accordingly, this Court may consider
new evidence and render a decision on the merits. See
Banks v. Vannoy, 708 Fed.Appx. 795, 800 (5th Cir. 2017)
(citing Rapelje, 134 S.Ct. at 400).
Claim One: Ineffective Assistance of Counsel
asserts that his counsel was ineffective in two respects: (1)
in failing to object to Ms. Massey remaining on the jury and
returning a verdict when she had not heard or understood the
evidence; and (2) in failing to file a Motion to Quash the
Habitual Offender Bill of Information and failing to object
to the inclusion and consideration of prior convictions at
the habitual offender hearing.
prevail on an ineffective assistance claim, a petitioner (1)
“must show that counsel's performance was
deficient, ” and (2) “that the deficient
performance prejudiced [him].” Strickland v.
Washington, 466 U.S. 668, 687 (1984). A failure to prove
either prong defeats the claim. Green v. Johnson,
160 F.3d 1029, 1035 (5th Cir. 1998). The prongs of this test
need not be analyzed in any particular order. See
Strickland, 466 U.S. at 697. Further, “[m]ere
conclusory allegations in support of a claim of ineffective
assistance of counsel are insufficient to raise a
constitutional issue.” Green, 160 F.3d at
satisfy the first prong, Blueford must prove his
counsel's performance “fell below an objective
standard of reasonableness.” Strickland, 466
U.S. at 688. In applying the first prong, federal courts
presume counsel has provided competent professional
assistance. See Id. at 689-90. A court deciding an
ineffectiveness claim must judge the reasonableness of
counsel's conduct on the facts of the case, at the time
of the conduct, keeping in ...