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Jones v. Vannoy

United States District Court, E.D. Louisiana

November 15, 2018

ALFRED JONES
v.
DARREL VANNOY, WARDEN

         SECTION “A” (2)

          REPORT AND RECOMMENDATION

          JOSEPH C. WILKINSON, JR., UNITED STATES MAGISTRATE JUDGE

         This 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).[1] For the following reasons, I recommend that the instant petition for habeas corpus relief be DENIED and DISMISSED WITH PREJUDICE.

         I. STATE COURT PROCEDURAL BACKGROUND

         The petitioner, Alfred Jones, is incarcerated in the Louisiana State Penitentiary in Angola, Louisiana.[2] 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.[3] 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 McGarry.
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 dealer.
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 same weapon.
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 murder.
On re-direct, the State called one witness: Donald Hancock.
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.

         Jones was tried before a jury on August 2-5, 10-12 and 16-18, 2010, and was found guilty of both counts.[4] He was sentenced on September 10, 2010, to life in prison without benefit of parole, probation or suspension of sentence.[5]

         Jones filed a timely direct appeal to the Louisiana Fourth Circuit challenging the trial court's admission of evidence of Campbell's murder.[6] 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 harmless.[7]

         The Louisiana Supreme Court denied Jones's subsequent writ application without stated reasons on September 14, 2012.[8] 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).

         On August 1, 2013, Jones submitted an application to the state trial court for post-conviction relief, asserting the following claims:[9] (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.

         Jones sought an evidentiary hearing and appointment of counsel.[10] 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.[11]

         On 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.[12]

         On remand, Jones filed a motion for appointment of counsel.[13] 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.[14] 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.[15] 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.[16] 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.[17] 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 resulting prejudice.[18]

         On 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.[19]

         II. FEDERAL HABEAS PETITION

         On January 20, 2018, Jones filed his petition for federal habeas corpus relief in which he asserts the following grounds for relief:[20] (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.

         The State filed an answer in response to Jones's petition in which it concedes that the federal petition is timely.[21] 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.

         III. GENERAL STANDARDS OF REVIEW

         The 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[22] 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.[23] 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)).

         The 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 following reasons.

         IV. PROCE ...


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