United States District Court, W.D. Louisiana, Shreveport Division
REPORT AND RECOMMENDATION
L. Hornsby, U.S. Magistrate Judge.
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.
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
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.
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.
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.
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
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.
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.
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
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.
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).
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).
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.
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).
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
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
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
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.
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.
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
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.
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
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.
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).
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.
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).
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).