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Grant v. Cain

United States District Court, W.D. Louisiana, Shreveport Division

January 24, 2019




          Mark L. Hornsby, U.S. Magistrate Judge.


         A Caddo Parish jury voted 11-1 to convict Derrick Dewayne Grant (“Petitioner”) of attempted second-degree murder. Petitioner was adjudicated a fourth felony offender and received a mandatory life sentence. His conviction was affirmed on direct appeal. State v. Grant, 105 So.3d 81 (La.App. 2d Cir. 2012), writ denied, 110 So.3d 1073 (La. 2013). Petitioner also pursued a post-conviction application in the state courts. He now seeks federal habeas corpus relief on several grounds. For the reasons that follow, it is recommended that his petition be denied.

         Background Facts

         Michael Parker, Tawon Parker, and Matthew Parker were playing dominoes on the front porch of a house on East 71st Street in Shreveport one day in October 2003 when an SUV stopped in front of the house. Two men armed with rifles exited the passenger side of the SUV and opened fire at the men on the porch. Michael Parker was shot four times, twice in the side and once in each leg. He survived. The other two men were not injured.

         Scott Marler, an off-duty Shreveport Fire Department driver, was driving east on East 70th Street near Thornhill when he heard loud popping noises and saw a tan SUV parked at the intersection of Thornhill and East 71st Street. Both doors on the passenger side of the SUV were open, and two men were standing outside and firing what appeared to be semi-automatic rifles at a house. Marler turned around and followed the SUV when it left the scene. He called 911 to report the shooting and provide the SUV's license plate number. A Shreveport police officer approached as the vehicles traveled on I-49 southbound. Marler pointed out the SUV to the officer, who then took over the pursuit.

         The SUV traveled at a high rate of speed and exited I-49 onto the westbound Highway 3132 ramp. A backseat passenger in the SUV, later identified as Petitioner, leaned out and pointed a rifle at the police car. The officer heard a loud popping noise and saw something hit his windshield, but he did not stop his pursuit. He never lost sight of the SUV, and he clearly saw three black males inside.

         The driver of the SUV eventually stopped in a ditch on West 78th Street, and the three men ran. The pursuing officer testified that all three men were armed with rifles. They fled through a thicket of bamboo and over a fence that had razor wire on the top. Other officers soon arrived and formed a perimeter. A search involving a K-9 unit began.

         The K-9 tracked the scent of the men to a house on West 79th Street, under which officers found a rifle. The K-9 then alerted more strongly to another house on the same street, where the three black males were located. Another rifle was found under that house.

         The officers conducted a knock and talk at the house. They encountered Petitioner, along with William Hall and Ira Ross. Petitioner had a fresh cut on his face. He said the house belonged to his girlfriend, but he gave permission for the officers to conduct a protective sweep of the home. The sweep revealed muddy clothes and tennis shoes, some of which were in the washing machine. The three men were arrested, charged with attempted second-degree murder, and tried separately. William Hall struck a plea bargain for a 15-year sentence and agreed to testify for the prosecution. He testified that he was the driver, while Petitioner and Ross carried out the shooting. He said the shooting was in retaliation for Tawon Parker having robbed Ira Ross of his drugs, while Ross was working in Petitioner's drug house.

         LaSonya Hailey, Petitioner's girlfriend, testified that she had rented the SUV a few days before the shooting so that she could go to Texas and visit with family. Ira Ross had borrowed the SUV on the date of the incident, and he left without Petitioner, who was in bed asleep. Ms. Hailey said she gave Petitioner the gash over his eye in a fight they had a day or two prior to the shooting.

         Petitioner, an admitted drug dealer, testified that he gave Ms. Hailey money to rent the SUV so they could travel to Texas to buy rims and antique furniture. He denied involvement in the shooting and said the shooters were Ira Ross, William Hall, and Jackie Sanders. Sanders had since died. Petitioner said that Hall and Ross showed up at Ms. Hailey's house on the day of the incident and asked to come in. They immediately started asking each other what happened to Jackie Sanders. The men indicated they were running from the police. Petitioner took their muddy clothes, put them in the washing machine, and gave the men clean clothes. He said that Hall told him not to let the police in, but Petitioner did so when they arrived.

         Richard Beighley, a firearms expert from the crime lab, examined the two rifles and materials recovered at the scene. Thirteen fired casings and one live round with a primer print found at the scene were matched to one of the rifles. Seven fired casings of a different caliber were recovered at the scene. They were consistent with having been fired from the other rifle, but there were not enough markings to make a positive match. The jury considered the evidence and returned a verdict of guilty to attempted second-degree murder.

         Habeas Burden

         All of Petitioner's habeas claims were decided on the merits in the state courts, either on appeal or post-conviction. Habeas corpus relief is available with respect to a claim that was adjudicated on the merits in the state court only if the adjudication (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 or (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 proceedings. 28 U.S.C. § 2254(d).

         A state court's decision is contrary to clearly established Supreme Court precedent when it relies on legal rules that directly conflict with prior holdings of the Supreme Court or if it reaches a different conclusion than the Supreme Court on materially indistinguishable facts. Pape v. Thaler, 645 F.3d 281, 287 (5th Cir. 2011). A state court makes an unreasonable application of clearly established federal law when it identifies the correct governing legal principle from the Supreme Court's decisions but applies it to the facts in a way that is not only incorrect but objectively unreasonable. Renico v. Lett, 130 S.Ct. 1855, 1862 (2010). When a state court has denied a claim on the merits, the AEDPA bars habeas relief unless the prisoner shows that the state court “erred so transparently that no fairminded jurist could agree with that court's decision.” Bobby v. Dixon, 132 S.Ct. 26, 27 (2011) (per curiam).

         Batson Challenge

         ADAs Lea Hall and Dhu Thompson prosecuted the case, and Larry English served as defense counsel. Judge Roy Brun presided. The jury of twelve that was seated after the exercise of peremptory strikes included three African-Americans, and one of the alternates was African-American. Mr. English raised a challenge under Batson v. Kentucky, 106 S.Ct. 1712 (1986) because the State exercised eleven peremptory strikes against African-American jurors. The prosecutor responded to the Batson challenge by noting that the prosecution “still had strikes left to go” but did not use them to eliminate African-Americans from the jury. The State also raised a Batson challenge against the defense because Mr. English had used all but one or two of his strikes to eliminate white jurors. Tr. 532-33.

         Batson provides a three-step process for a trial court to use in adjudicating a claim that a peremptory challenge was based on race: First, a party must make a prima facie showing that a peremptory challenge has been exercised on the basis of race; second, if that showing has been made, the striking attorney must offer a race-neutral basis for striking the juror in question; and third, in light of the parties' submissions, the trial court must determine whether the challenger has shown purposeful discrimination. Snyder v. Louisiana, 128 S.Ct. 1203, 1207 (2008).

         The judge made an implied finding that both sides satisfied the prima facie showing of discriminatory strikes, saying, “I'm going to rule that we proceed to the second level of inquiry on both.” He called for counsel to provide race-neutral explanations for the strikes. Petitioner challenged on appeal and in his habeas petition the explanations that the State offered for five of the prospective jurors.

         The first juror at issue is Brandi Hunter. ADA Hall offered this explanation for striking her:

Ms. Hunter was evasive during my questioning of her. She would not make eye contact with me and her body language and posture was such that I felt like she would not be a good juror for the case based on how she perceived me.

Tr. 535. The next juror at issue is Lekisha Cason. ADA Hall explained:

Ms. Lakisha Cason had the same sort of issues that Ms. Hunter did. It was based on personal rapport between -- this panel was actually Mr. Thompson's but her approaches to Mr. Thompson seemed that such that -- also taken in connection with her responses to Mr. English, it seemed that she appeared to favor Mr. English over us and that's why she was cut.

Tr. 536.

         ADA Hall offered with respect to Felicia Smith: “With respect to Ms. Smith, that also was just a general -- what her responses in total seemed to imply to us versus her responses to Mr. English.” Tr. 536. Hall said that Daniel Francis was struck because “his cousin was convicted of armed robbery and Mr. Thompson and I were not sure whether we had actually convicted his cousin, whether that gave him any long-lasting hatred or resentment towards the State and I did that panel, I simply forgot to ask him.” Hall added, “I had a strike left over and I was unsure and I exercised it.” Tr. 538.

         The final juror at issue was Mr. Louis Bonner, Jr. Mr. Bonner stated during voir dire that ADA Hall “prosecuted someone that ran over my brother.” Tr. 459. The judge later asked for a bench conference with Mr. Bonner and counsel, but it was not transcribed. Tr. 499. ADA Hall, when called on to explain why Mr. Bonner was the subject of a strike, explained that the case mentioned by Mr. Bonner involved the homicide of his brother. The defendant in that case was the nephew of a politically connected person, and the prosecutor stated that he believed that person exercised influence over the case and that Mr. Bonner was aware of it. He said that Mr. Bonner had been very candid, but “he made a statement at the bench that he had a problem with how he was treated.” The ADA agreed that Mr. Bonner had been “treated very horribly by the court in my opinion” so the ADA was “simply unsure how that was going to come out.” Tr. 536-37.

         After the State offered its race-neutral reasons, Mr. English stated that he wanted to begin to offer the reasons for his strikes. This exchange then occurred:

The Court: I'm not asking you at this point to defend the reverse Batson, I'm just asking if you have any more --
Mr. English: No, that's all, your honor.
The Court: Ok. The court denies the Batson.
Mr. English: Ok.

Tr. 539. Mr. English then offered his explanations for his strikes. They included representations that he “perceived with them there was going to be an unfair advantage” because when he questioned the juror, he “did not get that same kind of feel.” Or “I saw on their face. . . a reluctance to follow, even though they eventually agreed with me.” He said with respect to another juror that he “was uncomfortable with how they were responding when I asked them about the questions concerning the police and that caused me some concern about them.” Another juror was struck because “they seemed to have established a rapport with the DA” when answering his questions, “and I didn't sense that same fairness as -- when I was asking them questions.” Tr. 541-42. The court also denied the prosecution's Batson challenge. Tr. 543.

         At step three of the Batson procedure, the trial court must evaluate whether the prosecutor's demeanor belies a discriminatory intent, and whether the juror's demeanor exhibited the basis for the strike articulated by the prosecutor. The best evidence of discriminatory intent often will be the demeanor of the attorney who exercises the challenge. And the “race-neutral reasons for peremptory challenges often invoke a juror's demeanor (e.g., nervousness, inattention), making the trial court's firsthand observations of even greater importance.” Snyder, 128 S.Ct. at 1208. For these reasons, a trial court's ruling on the issue of discriminatory intent must be sustained on appeal unless it is clearly erroneous. Snyder, citing Hernandez v. New York, 111 S.Ct. 1859 (1991). The Supreme Court has said that it will defer to the trial court on such findings “in the absence of exceptional circumstances.” Snyder, quoting Hernandez, 111 S.Ct. at 1870.

         The state appellate court addressed the same Batson challenges that Petitioner now presents in his habeas petition. The court set forth the three-step process and reviewed the explanations, as discussed above. It reasoned that although Petitioner might believe that the explanations for striking jurors Hunter, Cason, and Smith were too general or unsatisfactory, “the trial court was present to witness the demeanor of each juror while she answered the questions of the attorneys” and “found the explanation for striking each of those jurors to be plausible, and found no discriminatory intent.” The reasons given for jurors Bonner and Francis were found to be “even more compelling.” Prosecutors were concerned that they might have personally prosecuted Mr. Francis' relative, which is a race-neutral reason, and they were concerned about Mr. Bonner's feelings given the proceedings in the prosecution of his brother's killer. Considering the deference due to trial court's evaluations, the appellate court found no grounds to reverse the trial court's decision to deny the Batson challenges. State v. Grant, 105 So.3d at 85-86.

         On direct appeal, a trial judge's findings on Batson issues may be reversed only if the trial judge is shown to have committed clear error. But this case is not on direct appeal. It is a habeas petition, so “even more must be shown.” Davis v. Ayala, 135 S.Ct. 2187, 2199 (2015). “A federal habeas court must accept a state-court finding unless it was based on ‘an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.'” Id., citing 28 USC § 2254(d)(2). “State-court factual findings, moreover, are presumed correct; the petitioner has the burden of rebutting the presumption by ‘clear and convincing evidence.'” Id. at 2199-2200, citing Rice v. Collins, 126 S.Ct. 969 (2006) and § 2254(e)(1). “The role of a federal habeas court is to guard against extreme malfunctions in the state criminal justice systems, not to apply de novo review of factual findings and to substitute its own opinions for the determination made on the scene by the trial judge.” Davis, 135 S.Ct. at 2202 (cleaned up).

         Petitioner argues that none of the challenged jurors made any statements in their voir dire that objectively rendered them poor prospects, but objective articulable grounds are not required to validate the exercise of a peremptory strike. Strikes are often used based on the instinct of counsel after observing demeanor, body language, tone, and other factors that do not appear on the cold record. That is why such deference is afforded the trial judge's assessment of these issues. The judge in this case made a reasonable decision, and the state appellate court reasonably applied the Batson principles to affirm that decision. This court cannot say that the state court findings were unreasonable in light of the evidence presented, particularly in light of the presumption of correctness and the burden on Petitioner to rebut that presumption. This is not one of the extreme malfunctions in the state system that allows for habeas relief. Accordingly, the petition should be denied with respect to this claim.

         Petitioner also complained on direct appeal that the bench conversation with Mr. Bonner was not transcribed so could not be reviewed. The state appellate court pointed out that the transcribed remarks by the prosecutor and judge made it apparent that Mr. Bonner informed the court that his brother had been murdered and that Mr. Bonner was unhappy with how he was treated during the related proceedings. The failure to record the actual bench conference was deemed to not prejudice the appeal because the transcript of the voir dire revealed a substantial basis for challenging the juror. Petitioner makes the same argument in his habeas petition, but he cites no clearly established Supreme Court precedent or other basis that would allow habeas relief on this issue under 28 U.S.C. §2254(d). Furthermore, the undersigned has held that habeas relief is not allowed for failure to provide a full transcript of bench conferences absent a showing of actual prejudice. Hedgespeth v. Warden, 2015 WL 1089325 (W.D. La. 2015).

         Petitioner also argues that the strike of Mr. Francis, based on his alleged involvement in criminal proceedings, was improper because the prosecution did not strike white jurors who mentioned that they or family had been charged with crimes. The distinction, however, is that the prosecutors were concerned that they may have personally prosecuted Mr. Francis' cousin for armed robbery. The challenge was not simply based on Mr. Francis having a cousin who had experienced criminal troubles. To the extent Petitioner contends the trial court was required to conduct a comparative juror analysis, the Fifth Circuit has held that the Supreme Court has not clearly established any requirement that a state court conduct a comparative juror analysis, let alone sua sponte. Chamberlin v. Fisher, 885 F.3d 832, 838 (5th Cir. 2018).

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