United States District Court, W.D. Louisiana, Monroe Division
A. DOUGHTY JUDGE
REPORT AND RECOMMENDATION
L. Hayes United States Magistrate Judge
Justin Atkins, an inmate in the custody of Louisiana's
Department of Corrections, filed the instant petition for
writ of habeas corpus pursuant to 28 U.S.C. § 2254 on
November 27, 2017. [docs. # 1, 5]. Atkins attacks his 2010
convictions for armed robbery and aggravated battery, as well
as the 45-year sentence imposed by Louisiana's 4th
Judicial District Court, Ouachita Parish. 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.
underlying facts in this case have been set forth by the
Louisiana Second Circuit Court of Appeal as follows:
On January 2, 2009, Robert Jones, Howard Bishop, and Tom
Harris were drinking together at Jones' modest residence
on Jackson Street in Monroe. All three men lived in the
neighborhood. Bishop and Jones had just returned to the
residence after cashing Jones' VA check. Atkins knew of
Atkins kicked in the door, barged into the home, and demanded
money from Jones, who refused. Atkins began beating Jones
with the butt of a firearm. Harris intervened and was also
struck with the firearm. Bishop witnessed all of this, even
observing Atkins take the money from Jones' pocket.
Lurking at the door during the robbery was a man named
Lawrence Horton, known in the neighborhood only as
“O.” Horton had been living with Harris for a few
months. That morning, however, Harris ordered him to leave.
Harris had known Horton for about a year.
A few days after the robbery, Harris later found some
correspondence at the residence which bore O's real name:
Eight days after the robbery, Horton sent word that he wanted
to speak with the police. When Detective Jeffrey Dowdy
questioned him, Horton admitted his part in the robbery. He
blamed mainly Atkins for this crime.
After an arrest warrant was secured, Atkins was arrested.
Harris later obtained a photo of the robber, whom he
identified as “J. Money.” Harris gave the photo
to the detective, claiming that it depicted the person who
beat him, and who had beaten and robbed Jones.
State v. Atkins, 46, 613 (La.App. 2 Cir. 9/21/11),
74 So.3d 238, 239.
18, 2010, a jury found Atkins guilty of armed robbery, a
violation of La. R.S. 14:64, and aggravated battery, a
violation of La. R.S. 14:34. He was subsequently sentenced to
35 years at hard labor for the armed robbery, and a
consecutive 10-year hard labor term for the aggravated
filed a direct appeal in the Second Circuit Court of Appeal,
raising three issues: (1) insufficient evidence; (2) a
tainted lineup identification; and (3) excessive sentence. On
September 21, 2011, the Second Circuit affirmed Atkins'
convictions and sentences. Id. On February 17, 2012,
the Louisiana Supreme Court denied Atkins' subsequent
application for writ of certiorari and/or review. State
v. Atkins, 2011-2287 (La. 2/17/12), 82 So.3d 284. Atkins
did not file a petition for certiorari in the United States
Supreme Court. [doc. # 5 ¶ 9(h)].
December 6, 2012, Atkins filed an application for
post-conviction relief in the state district court, alleging:
(1) denial of his Sixth Amendment right to confront and
cross-examine the witnesses against him; (2) the trial court
erred in allowing a substantial amount of hearsay evidence to
prove key elements of the state's case; and (3) counsel
was ineffective in trial and pre-trial proceedings. [doc. #
14-1]. On July 27, 2015, Atkins filed an “Amended Brief
in Support of Application for Post-Conviction Relief, ”
[doc. # 14-3], which the court denied. [doc. # 14-4]. The
Second Circuit Court of Appeal denied his application on
April 28, 2016. [doc. # 14-6]. Atkins sought a supervisory
and/or remedial writ, which the Louisiana Supreme Court
denied on September 29, 2017. State ex rel. Atkins v.
State, 2016-1082 (La. 9/29/17), 227 So.3d 251. In its
per curiam opinion, the Louisiana Supreme Court found that
Atkins had fully litigated his application for
post-conviction relief in state court and exhausted his right
to state collateral review. Id.
November 27, 2017, Atkins filed the instant federal habeas
corpus petition, arguing he was denied his right to
confrontation, in violation of the Sixth Amendment to the
United States Constitution, when the State introduced
testimony from his co-defendant without providing Atkins with
the opportunity for cross-examination. (Memorandum in Support
(“Mem.”), [doc. # 1-2]). The State filed its
response on June 22, 2018. [doc. # 18]. Atkins filed a reply
on July 30, 2018. [doc. # 19]. This matter is ripe.
Antiterrorism and Effective Death Penalty Act
(“AEDPA”) of 1996, 28 U.S.C. § 2254, governs
habeas corpus relief of a state prisoner. 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