United States District Court, E.D. Louisiana
REPORT AND RECOMMENDATION
C. WILKINSON, JR., UNITED STATES MAGISTRATE JUDGE
matter was referred to a United States Magistrate Judge to
conduct hearings, including an evidentiary hearing, if
necessary, and to submit proposed findings and
recommendations for disposition pursuant to 28 U.S.C.
§§ 636(b)(1)(B) and (C) and, as applicable, Rule
8(b) of the Rules Governing Section 2254 Cases. Upon review
of the entire record, I have determined that a federal
evidentiary hearing is unnecessary. See 28 U.S.C.
§ 2254(e)(2). For the following reasons, I recommend
that the instant petition for habeas corpus relief be
DENIED and DISMISSED WITH
STATE COURT PROCEDURAL BACKGROUND
petitioner, Alfred Jones, is incarcerated in the Louisiana
State Penitentiary in Angola, Louisiana. On April 19,
2007, Jones was charged by bill of information in Orleans
Parish with two counts of first degree murder in violation of
La. Rev. Stat. § 14:30. The Louisiana Fourth Circuit
Court of Appeal summarized the facts determined at trial as
follows in relevant part:
It is undisputed that on February 15, 2007, Mr. Jones shot
and killed the Brooks Brothers. The issue at trial was
whether he did so in self-defense. The crime scene was a
vehicle driven by Darryl Kiefer; the Brooks Brothers were
passengers in the vehicle. The vehicle was parked in the 1000
block of Kentucky Street in New Orleans. Immediately before
the shootings, Mr. Kiefer gave Mr. Jones a ride to his
girlfriend's house. After he exited the vehicle, Mr.
Jones shot all three occupants. The Brooks Brothers both died
at the scene; Mr. Kiefer survived.
All three occupants of the vehicle-Mr. Kiefer and the Brooks
Brothers-had Young Fellows tattoos. Mr. Campbell, who was
murdered in January 2007, likewise had a Young Fellows
tattoo. The gun used to shoot the occupants of the vehicle
was the same gun that was used to shoot Mr. Campbell. The
trial court, as noted, granted the State's Prieur motion
to introduce evidence of Mr. Campbell's murder at trial
in this case.2
2As discussed elsewhere, Mr. Jones' sole
assignment of error relates to the introduction of the
evidence regarding Mr. Campbell's murder.
At trial, the State called the following ten witnesses: 1)
Darryl Kiefer, 2) Giselle Roussell, 3) Benja Johnson, 4)
Tarez Cook, 5) Ed Delery, 6) Regina Williams, 7) Lucinda
Barnes, 8) Harold Wischan, 9) Kenneth Leery, and 10) Dr. Paul
1) Darryl Kiefer
Darryl Kiefer was the driver of the vehicle and the surviving
victim. He grew up with the two deceased victims, the Brooks
Brothers, in the Treme area of New Orleans. After graduating
from J.F. Kennedy High School (“Kennedy”) in
2005, he went to Belen College in Texas on a basketball
scholarship. He only attended college there for one year. In
August 2006, he returned to New Orleans and attended SUNO. In
November or December 2006, he dropped out of school. In the
fall of 2006, he worked for Maximum Staffing Temporary
Service and began selling marijuana.
Mr. Kiefer stored the money he earned and the money Louis
Daniels-a drug dealer-earned at his house. He was friends
with Mr. Daniels and knew him from junior high school. He
also played basketball with him. Mr. Kiefer met the
defendant, Mr. Jones, through Mr. Daniels. Mr. Kiefer was
neither a friend of Mr. Jones, nor in business with him.
In December 2006, the money Mr. Kiefer stored at his
house-his and Mr. Daniels' money-was stolen. On the day
it occurred, the Brooks Brothers, Hillary Campbell, and
“Pookie” (a friend) met Mr. Kiefer at his house
before going to play basketball. The Brooks Brothers and
“Pookie” accompanied Mr. Kiefer to play
basketball, but Mr. Campbell took the bus home instead. When
Mr. Kiefer returned home from playing basketball, he
discovered that the money was missing. He called Mr. Daniels
and asked him if he had taken the money. Mr. Daniels denied
doing so and came to Mr. Kiefer's house. Mr. Daniels
questioned Mr. Kiefer regarding what had occurred. According
to Mr. Kiefer, Mr. Daniels told him “Don't worry
about it, it's going to come up”; and Mr. Daniels
never discussed the incident with him again.
On the day of the shootings (February 15, 2007), Mr. Kiefer
began his day in Thibodaux; and he went with his dad to
therapy. After therapy, his dad dropped him off at the Brooks
Brothers' house because his car was parked near their
house. Later that day, Mr. Kiefer and the Brooks Brothers
drove to “Tattoo Man's” house in the Ninth
Ward. After leaving “Tattoo Man's” house, the
trio drove through the Ninth Ward to say hello to Mr.
Daniels. The people who were hanging out there told them that
Mr. Daniels was not there. Mr. Jones was there, and he asked
Mr. Kiefer for a ride to his girlfriend's house, which
was located about five minutes away. Mr. Jones got into the
back passenger seat of Mr. Kiefer's vehicle and gave Mr.
Kiefer directions to his girlfriend's house. Ivan Brooks
was in the front passenger seat; Damon Brooks was in the back
seat behind the driver, Mr. Kiefer.
When they arrived at Mr. Jones' girlfriend's house,
Mr. Jones exited the vehicle and stated: “Be
cool.” Mr. Jones then pulled out a gun and shot at Mr.
Kiefer and the Brooks Brothers. Mr. Jones shot Damon Brooks
first. Mr. Kiefer was shot ten times; he was shot in the arm,
leg, hands, and chest. After Mr. Jones fled, Mr. Kiefer
called 911. Mr. Kiefer saw a woman coming out of a house and
called out to her for help. When she failed to respond, he
drove the vehicle forward to the front of the woman's
house. The woman ran inside stating that she was going to
call the police. Shortly thereafter, the police arrived.
Mr. Kiefer acknowledged that in 2009 he pled guilty to
possession with intent to distribute marijuana and was
sentenced to five years of probation. When he was arrested
for the marijuana violation, there was a gun in the car in
which he was riding. He also acknowledged that in July 2010
he was arrested for possession of ecstasy; he testified that
there had been no discussions with the State about this open
charge. Mr. Kiefer denied having a gun in his car on the date
of the shootings (February 15, 2007).
Mr. Kiefer also denied murdering Mr. Campbell or having
anything to do with Mr. Campbell's murder. Indeed, he
testified that he found out about Mr. Campbell's murder
(which occurred in January 2007) by reading about it in the
newspaper. He also found out from the newspaper that Mr.
Campbell had a Young Fellows tattoo. Mr. Kiefer testified
that Young Fellows was a basketball team, not a gang. (As
noted elsewhere, Mr. Kiefer, the Brooks Brothers, and Mr.
Campbell all had Young Fellows tattoos.) Mr. Kiefer testified
that the Brooks Brothers were not hustlers; they were not
involved in anything illegal. On the other hand, Mr. Kiefer
acknowledged that Mr. Daniels was a hustler and a drug
2) Giselle Roussell
Giselle Roussell, an assistant police communications
supervisor, identified the tape of the 911 call received on
the date of the murders.
3) Benja Johnson
Officer Benja Johnson of the New Orleans Police Department
(“NOPD”) testified that he was one of the
officers who first responded to the call reporting the
shootings. When he arrived on the scene, Officer Johnson
observed a white vehicle parked in the street with the
passenger door open. When he approached the vehicle, Officer
Johnson observed that all three of its occupants had been
shot. Officer Johnson notified EMS and attempted to speak to
the driver of the vehicle. The driver indicated that
“Alfred” had shot them. The other two occupants,
one in the front passenger seat and one in the back seat, had
expired on the scene. Officer Johnson cordoned off the scene
until the crime lab technicians arrived.
4) Tarez Cook
Tarez Cook, a NOPD crime lab technician, was called to
process the crime scene. Ms. Cook photographed the scene,
collected the evidence found at the scene, and prepared a
crime scene report. Another crime scene technician prepared a
sketch of the scene, which Ms. Cook identified. Ms. Cook also
identified the photographs taken at the scene. No. firearms
were found on the victims or at the scene. Spent bullet
casings were collected.
5) Ed Delery
Ed Delery, an expert in the field of latent print development
and a member of the crime lab, processed the vehicle. Mr.
Delery took photographs of the vehicle, searched it for
evidence, and processed it for latent prints. Nineteen latent
prints were found on the exterior of the vehicle, and two
latent prints were found in the interior of the vehicle.
6) Regina Williams
Detective Regina Williams, who participated in the homicide
investigation, testified that she was sent to check on the
victim, Mr. Kiefer, who was transported to Elmwood Medical
Center (“Elmwood”). When Detective Williams
arrived at Elmwood, Mr. Kiefer was being prepared for
surgery. She spoke with Mr. Kiefer and the physicians
treating him. Mr. Kiefer told her that “Alfred”
shot him, that he knew Alfred from the Gallier Street area,
and that he did not know Alfred's last name. Mr. Kiefer
also told him that he gave Alfred a ride to his
girlfriend's house, and when Alfred exited the vehicle he
shot all three occupants. Mr. Kiefer described Alfred as
dark-skinned, slender, tall, and having dread locks.
Detective Williams recovered a spent bullet that fell out of
Mr. Kiefer's clothes during preparation for surgery.
Detective Williams relayed all the information she obtained
to Detective Lucinda Barnes.
7) Lucinda Barnes
Detective Lucinda Barnes testified that she was the chief
homicide investigator in this case. When she arrived on the
scene, she learned that two victims were fatally shot and
another victim was shot and transported to Elmwood. Detective
Barnes spoke with the first responding officers; they advised
her that the homicides occurred in the white vehicle that was
on the scene. Detective Barnes observed spent casings near
the residence at 1003 Kentucky Street; the vehicle came to
rest at 1035 Kentucky Street.
The day after the shootings Detective Barnes met with the
surviving victim, Mr. Kiefer, at Elmwood. Mr. Kiefer told
Detective Barnes that “Alfred” shot him.
Detective Barnes then put together a photographic lineup and
showed it to Mr. Kiefer. Mr. Kiefer identified Mr. Jones as
the person who shot him and the Brooks Brothers. Mr. Kiefer
also gave a statement to Detective Barnes about the shooting.
Detective Barnes then obtained a warrant to arrest Mr. Jones
for the first degree murders of the Brooks Brothers.
Detective Barnes also investigated Mr. Kiefer's
background. She discovered that Mr. Kiefer was a member of
the Young Fellows. (As noted, Mr. Kiefer claimed Young
Fellows was a basketball group, not a gang.) At that time
(February 2007), Mr. Kiefer had no criminal record. Nor did
either of the Brooks Brothers have a criminal record. No.
weapons were found on the victims or in the vehicle.
8) Harold Wischan
On January 3, 2007, NOPD Detective Harold Wischan was
notified by Louisiana National Guardsmen, who were patrolling
in the area of Press Drive, that they found the body of young
man in a grassy area near some abandoned houses. (This area
was devastated in August 2005 by Hurricane Katrina.) The
victim was identified as Mr. Campbell. Eleven spent nine
millimeter shell casings were found near the body. The victim
had two five dollar bills and a plastic bag containing crack
cocaine. The victim also had tattoos (one on each arm)
identifying him as a member of the Young Fellows.
Subsequently, Detective Wischan was contacted by Detective
Barnes, who indicated that the spent casings found at his
crime scene might match the spent casings found at the scene
of the Brooks Brothers' murders.
9) Kenneth Leary
Kenneth Leary, an expert in firearms examination, testified
that he examined the casings and bullets from both the Brooks
Brothers' murders and Mr. Campbell's murder and
determined that the casings and bullets were fired from the
10) Dr. Paul McGarry
Dr. Paul McGarry, a forensic pathologist, performed the
autopsies on Mr. Campbell and the Brooks Brothers. Briefly,
his findings as to each autopsy were as follows:
• Hillary Campbell: Mr. Campbell
suffered eight gunshot wounds; six were in the back of the
head, one went through the right shoulder, and one went into
the right hip. Dr. McGarry recovered bullet fragments from
the head and a whole bullet from the right hip.
• Ivan Brooks: Ivan Brooks suffered
three gunshot wounds. One gunshot wound was to the top of the
head; the bullet went downward and backward to the base of
the brain. Another gunshot wound was to the back of the head
about level to the victim's ear; the bullet went into the
head, hit the skull and went downward into the neck. The
third gunshot wound was to the right upper back. The bullet
went into the spine, damaging the spinal cord. Dr. McGarry
found all three bullets in the victim's body. Dr. McGarry
opined that the brain injury was the fatal shot and that
death would have occurred within minutes. Dr. McGarry further
opined that the bullet wounds indicated that the victim was
shot at close range. The wounds on the head and neck had
stippling around them. He concluded that Ivan Brooks'
death was a homicide.
• Damon Brooks: Damon Brooks was also
shot at close range, and he suffered two gunshot wounds to
his head. Dr. McGarry testified that both of Damon
Brooks's gunshot wounds had stippling around them. One
bullet went downward through the brain to the base of the
skull. The second bullet entered the neck and ended in the
upper left back. Dr. McGarry found both bullets in the
victim's body. Dr. McGarry stated that the brain injury
was fatal, and the victim would have died within minutes. He
noted that the weapon would have been aimed in the direction
of the victim's right side. Dr. McGarry also stated that
both wounds were in a downward angle. Dr. McGarry concluded
that Damon Brooks' death was a homicide.
At trial, the defense called two witnesses: (I) Binatas
Norman, and (ii) the defendant, Mr. Jones.
(I) Binatas Norman
Binatas Norman is the person that Mr. Jones was going to
visit when Mr. Kiefer gave him a ride on the day of the
shootings (February 15, 2007). Ms. Norman testified that Mr.
Jones is the father of her son. She testified that in
February 2007 she lived one block from the crime scene, the
1000 block of Kentucky Street.
(ii) Alfred Jones
Alfred Jones testified on his own behalf. He grew up in the
Ninth Ward. He, like Mr. Kiefer, attended Kennedy, but he
graduated from Douglass High School. He stated that Mr.
Daniels and Mr. Kiefer played basketball together in school.
Mr. Jones further stated that he, Mr. Kiefer, and Mr. Daniels
were drug dealers. He knew that Mr. Daniels kept his money at
Mr. Kiefer's house. The money was kept in a cabinet that
had a lock on it, and only Mr. Kiefer and Mr. Daniels had
keys to the lock. One or two weeks before Christmas 2006, Mr.
Kiefer contacted Mr. Daniels and told him that the money had
been stolen. Mr. Jones was with Mr. Daniels when Mr. Kiefer
contacted him by phone. Mr. Jones accompanied Mr. Daniels to
Mr. Kiefer's house. The back door to the house was off
its hinges, and the cabinet was broken open. Mr. Kiefer told
them that earlier that day the Brooks Brothers and Mr.
Campbell were at his house. Mr. Kiefer and the Brooks
Brothers went to play basketball; Mr. Campbell went home. Mr.
Kiefer discovered the money had been stolen when he returned
from playing basketball.
After Mr. Jones and Mr. Daniels went to Mr. Kiefer's
house and Mr. Kiefer told them what happened, all three of
them went to Mr. Campbell's house. When they arrived, Mr.
Kiefer went into the house by himself. He came out and told
them that Mr. Campbell was not there. Mr. Kiefer then took
Mr. Daniels and Mr. Jones home. Mr. Jones stated that Mr.
Daniels thought that Mr. Kiefer had stolen the money because
Mr. Kiefer had new rims on his car and was wearing a new gold
chain. Mr. Daniels called Mr. Kiefer and told Mr. Kiefer that
Mr. Jones had seen him with the new rims and gold chain. Mr.
Jones stated that he did not know Mr. Campbell.
Mr. Jones further testified that he did not see Mr. Kiefer
again until the day of the shootings, February 15, 2007. On
that day, Mr. Kiefer was driving down Gallier Street and was
stopped at a stop sign. Mr. Kiefer asked Mr. Jones if he had
seen Mr. Daniels. Mr. Jones replied that he had not seen Mr.
Daniels, but asked Mr. Kiefer for a ride to his
girlfriend's house. Mr. Jones got into the vehicle and
gave Mr. Kiefer directions to the house. When they arrived at
the house, Mr. Kiefer told Mr. Jones about the call he got
from Mr. Daniels about the rims and chain. Mr. Kiefer asked
Mr. Jones if he was saying that Mr. Kiefer stole the money.
Mr. Jones said no. Mr. Kiefer then pulled out a gun and
threatened to kill him. Mr. Jones reached for the gun and
took it out of Mr. Kiefer's hand. Mr. Jones then fell out
of the car. The man in the back seat attempted to wrestle the
gun away from him, and Mr. Jones shot him as Mr. Jones was
falling out of the car. Mr. Jones stated that he did not know
how many times he shot the weapon. He heard Mr. Kiefer and
the two men (the Brooks Brothers) yelling to “get him,
kill him.” After the shooting, he just ran. Three days
later, Mr. Jones turned himself in after retaining an
attorney. He denied any involvement in Mr. Campbell's
On re-direct, the State called one witness: Donald Hancock.
Donald Hancock, the telephone supervisor for the Orleans
Parish Sheriff's Office, testified that his job is to
monitor phone calls in the prison complex. All phone calls
made by inmates are recorded and maintained. Mr. Hancock
identified a CD recording of the phone calls made by Mr.
Jones. Portions of these phone calls were played during the
trial. The phone calls were between Mr. Jones and his mother,
and Mr. Jones and a male friend, concerned whether they could
get Mr. Campbell's sister to testify that she believed
that Mr. Jones was not involved in Mr. Campbell's murder.
State v. Jones, No. 2011-KA-0409, 85 So.3d 224,
225-230 (La.App. 4th Cir. February 15, 2012); State Record
Volume 5 of 10, Louisiana Fourth Circuit Court of Appeal
Opinion, 2011-KA-0409, pages 2-12, February 15, 2012.
was tried before a jury on August 2-5, 10-12 and 16-18, 2010,
and was found guilty of both counts. He was sentenced on
September 10, 2010, to life in prison without benefit of
parole, probation or suspension of sentence.
filed a timely direct appeal to the Louisiana Fourth Circuit
challenging the trial court's admission of evidence of
Campbell's murder. On February 12, 2012, the Louisiana Fourth
Circuit affirmed the convictions and sentences finding that
the trial court did not err in allowing the prosecution to
introduce evidence of Campbell's murder, and,
alternatively, any error in admitting the evidence was
Louisiana Supreme Court denied Jones's subsequent writ
application without stated reasons on September 14,
2012. Jones's conviction became final ninety
(90) days later, on December 13, 2012, when the time expired
for Jones to file a petition for writ of certiorari with the
United States Supreme Court. Roberts v. Cockrell,
319 F.3d 690, 694 (5th Cir.2003) (citing 28 U.S.C. §
2244(d)(1)(A); Flanagan v. Johnson, 154 F.3d 196,
200-01 (5th Cir.1998)); Ott v. Johnson, 192 F.3d
510, 513 (5th Cir.1999) (citing 28 U.S.C. §
2244(d)(1)(A)); U.S. Sup.Ct. R. 13(1).
August 1, 2013, Jones submitted an application to the state
trial court for post-conviction relief, asserting the
following claims: (1) The trial court erred in allowing
jurors to walk in and out of the courtroom in violation of
sequestration. (2) The trial court improperly pressured the
jury to reach a verdict after it advised that it “could
not come together on a verdict tonight.” (3) The trial
court denied him a fair trial and constructively denied him
effective assistance of counsel when the trial court ordered
trial counsel not to call a newly discovered witness to
testify. (4) The prosecutor committed misconduct by
withholding evidence of an eyewitness until the middle of
trial. (5) The prosecutor committed misconduct during closing
arguments by inferring that Kiefer had testified against
defense counsel's previous client. (6) The prosecutor
committed misconduct during closing argument when he stated
“to find him not guilty is the worst thing that could
happen in the justice system.” (7) Ineffective
assistance of counsel was provided in failing to investigate
and/or request a continuance to secure the eyewitness
withheld by the state or file a motion for new trial based on
newly discovered evidence. (8) Counsel provided ineffective
assistance in stating in his opening statement that he would
prove that Jones acted in self-defense and then failing to do
so. (9) Appellate counsel provided ineffective assistance in
failing to assign as error the prosecutor's withholding
of an eyewitness.
sought an evidentiary hearing and appointment of
counsel. On June 15, 2015, the state trial court
denied the application, finding claims one through six and
claim nine procedurally barred under La. Code Crim P. art.
930.4(c) for failure to assert the claims on direct appeal
and that petitioner failed to meet his burden of proof to
establish ineffective assistance of counsel.
September 29, 2015, the Louisiana Fourth Circuit granted
Jones's subsequent writ application for review and
remanded for the state trial court to provide petitioner with
an opportunity to explain why he failed to assert his seven
defaulted claims on direct appeal.
remand, Jones filed a motion for appointment of
counsel. On January 20, 2016, the state district
court denied Jones's motion for appointment of counsel
finding he was not entitled to counsel at that time because
he had not explained his failure to raise his seven claims on
appeal. In the meantime, Jones filed a
responsive brief attributing his failure to assert the issues
on direct appeal to ineffective assistance of trial counsel
in failing to lodge contemporaneous objections to preserve
the issues for appellate review, ineffective assistance of
appellate counsel in failing to raise the issues on direct
appeal, and his inability to assert the issues himself
because he did not obtain a copy of the trial record until
March 2013. The state filed its response claiming
that Jones's claims of ineffective assistance of trial
and appellate counsel were meritless and that the remaining
claims were procedurally barred pursuant to La. Code Crim. P.
art. 930.4. On April 1, 2016, the state district
court sustained the State's procedural objections and
denied relief as to the ineffective assistance of counsel
claims. On June 30, 2016, the Louisiana Fourth
Court of Appeal denied Jones's related writ application
finding the trial court did not err in sustaining the
State's procedural objections because petitioner failed
to show a valid basis for not raising the errors on appeal
and the trial court properly denied the ineffective
assistance of counsel claims because Jones failed to show any
December 5, 2017, the Louisiana Supreme Court denied
Jones's related writ application finding Jones failed to
show he received ineffective assistance of counsel under
Strickland v. Washington, 466 U.S. 668 (1984), he
failed to satisfy his post- conviction burden of proof under
La. Code Crim P. art. 930.2 and attached and incorporated the
trial court's post-conviction order.
FEDERAL HABEAS PETITION
January 20, 2018, Jones filed his petition for federal habeas
corpus relief in which he asserts the following grounds for
relief: (1) He was denied his constitutional
right to assistance of counsel at initial review collateral
proceedings. (2) His counsel provided ineffective assistance
of counsel in failing to protect his rights against
prosecutorial misconduct. (3) The trial court constructively
denied him assistance of counsel when it instructed defense
counsel not to request a witness.
State filed an answer in response to Jones's petition in
which it concedes that the federal petition is
timely. The State claims that Jones's claim
that he was denied counsel on collateral review is
non-cognizable on habeas review. The State claims that
Jones's third claim is procedurally barred and,
alternatively, meritless. It argues that Jones's
remaining claim lacks merit and that the denial of relief by
the state courts was not contrary to, or an unreasonable
application of, federal law.
GENERAL STANDARDS OF REVIEW
Antiterrorism and Effective Death Penalty Act of 1996
(“AEDPA”), Pub. L. No. 104-132, 110 Stat. 1214,
comprehensively revised federal habeas corpus legislation,
including 28 U.S.C. § 2254. The AEDPA went into effect
on April 24, 1996 and applies to habeas petitions filed
after that date. Flanagan v. Johnson, 154 F.3d 196,
198 (5th Cir. 1998) (citing Lindh v. Murphy, 521
U.S. 320 (1997)). The AEDPA therefore applies to Jones's
petition, which, for reasons discussed below, is deemed filed
in a federal court on January 20, 2018. The threshold
questions in habeas review under the amended statute are
whether the petition is timely and whether petitioner's
claims were adjudicated on the merits in state court;
i.e., the petitioner must have exhausted state court
remedies and must not be in “procedural default”
on a claim. Nobles v. Johnson, 127 F.3d 409, 419-20
(5th Cir. 1997) (citing 28 U.S.C. § 2254(b), (c)).
State concedes that Jones's petition was timely and that
he exhausted state court review of his claims. However, as
asserted by the State, Jones's claim that the trial judge
denied him a fair trial and constructively denied him counsel
when it instructed defense counsel not to request a witness
is in procedural default and should be dismissed for the