United States District Court, E.D. Louisiana
REPORT AND RECOMMENDATION
MICHAEL B. NORTH, UNITED STATES MAGISTRATE JUDGE
matter was referred to the undersigned United States
Magistrate Judge to conduct a hearing, 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 in the United
States District Courts. Upon review of the entire record, the
Court has determined that this matter can be disposed of
without an evidentiary hearing. See 28 U.S.C. §
2254(e)(2). For the following reasons, IT IS
RECOMMENDED that the petition for habeas corpus
relief be DISMISSED WITH PREJUDICE.
Everett Hughes, is a convicted inmate currently incarcerated
at the Louisiana State Penitentiary in Angola, Louisiana. On
May 3, 2012, he was charged by bill of indictment with one
count of second-degree murder and one count of attempted
second-degree murder. On September 26, 2013, a jury found him
guilty as charged on both counts. On November 15, 2013, his
motions for post-verdict judgment of acquittal and for new
trial were denied, and he was sentenced to life imprisonment
without benefit of probation, parole or suspension of
sentence for second-degree murder and a term of 50 years
imprisonment at hard labor without benefit of probation,
parole or suspension of sentence for attempted second-degree
murder, to run concurrently.
direct appeal, he asserted that the evidence was insufficient
to support the convictions and that his sentences were
excessive. On November 25, 2014, the Louisiana Fifth Circuit
Court of Appeal affirmed his convictions and
sentences. On October 9, 2015, the Louisiana Supreme
Court denied his application for writ of
about November 28, 2016, Hughes submitted an application for
post-conviction relief to the state district
court. In that application, he asserted that
trial counsel was constitutionally ineffective for failing to
(1) make contemporaneous objections during trial; (2) call
witnesses for the defense and prevent the State from
presenting the uncalled witnesses' statements through
other means at trial; and (3) investigate and call a defense
witness, who was a friend of Hughes, at trial. On February
21, 2017, the state district court denied his application for
post-conviction relief. The district court first noted that he
failed to specify with reasonable particularity the factual
basis for his first ineffective-assistance claim as required
by Louisiana Code of Criminal Procedure article 926(B)(3).
The court then denied that claim, along with the others, on
the merits. His related supervisory writ application was
denied by the Louisiana Fifth Circuit Court of Appeal on June
7, 2017. The court of appeal rejected the first
claim citing Louisiana Code of Criminal Procedure article
926(B)(3) and denied the remaining claims on the merits. He
subsequently filed a supervisory writ application with the
Louisiana Supreme Court. On October 15, 2018, the Louisiana
Supreme Court denied relief on the merits stating,
“[r]elator fails to show that he received ineffective
assistance of counsel under the standard of Strickland v.
November 2018, Hughes filed his federal application for
habeas corpus relief asserting the same three
ineffective-assistance-of-counsel claims he raised on post-
conviction review. The State's response concedes that
the federal application is timely and that his claims were
exhausted in the state courts. As to claim one, the State
submits that it should be rejected as procedurally defaulted
based on the intermediate court's ruling and the
presumptive adoption of those grounds by the Louisiana
Supreme Court, or alternatively denied on the merits along
with his other claims.
direct appeal, the Louisiana Fifth Circuit summarized the
following facts adduced at trial:
Shane Petty, a victim of the shooting incident and the nephew
of the murder victim (Mr. Williams), testified that he was
present on January 2, 2012 when defendant shot and killed Mr.
Williams. He also identified defendant in court.
Mr. Petty testified that he and Mr. Williams ran errands for
the family that day, visiting several stores together on the
date of the incident. He stated that they also visited the
residence of Mr. Williams' fiancé, Rachel Durall,
where defendant was present. While at Ms. Durall's
residence, Mr. Williams and defendant had a “basic
conversation” about Ms. Durall. According to Mr. Petty,
he had no reason to believe that the conversation would lead
to later violence between the two and believed the problem
was solved. Mr. Petty stated that after he and Mr. Williams
finished visiting the stores, they visited the home of Mr.
Petty's grandmother, Barbara Williams, who was also Mr.
Williams' mother. As Mr. Petty left Ms. Williams'
house, Ms. Williams stopped him and told him to let Mr.
Williams (the victim) bring him home because Mr. Petty did
not have car insurance. Mr. Petty stated that as a result, he
and Mr. Williams left the house together in a vehicle
belonging to Mr. Petty's mother, with Mr. Petty driving.
Mr. Petty stated that after leaving the house, they turned on
Spruce Street, where defendant was standing on the corner. He
testified that defendant “flagged” them down, and
Mr. Williams told Mr. Petty to stop the vehicle. Mr. Petty
stated that an altercation began, with defendant stating that
he did not like what had occurred in their first
conversation. Mr. Petty stated that Mr. Williams responded
that he thought the first conversation was finished. The
argument became louder, angrier, and more heated. Mr. Petty
stated that Mr. Williams was angry, and both Mr. Williams and
defendant elevated their voices. He stated that Mr. Williams
attempted to exit the vehicle, and at that point defendant
backed up, opened fire, and shot him. Mr. Petty stated that
after defendant began shooting, he had to “run for his
life” around the corner of the houses. Mr. Petty stated
that when he looked back, he saw that defendant was shooting
while running in the opposite direction.
Mr. Petty testified that he and Mr. Williams did not have a
gun during the incident. He stated that only one gun was
involved, and that defendant was the only person who fired a
gun. He stated that after the shooting, he ran directly to
his grandmother's house and informed her of the shooting.
As he and his grandmother walked back to the crime scene, he
realized that he had been injured. Mr. Petty stated that he
did not enter the vehicle at that point. He explained that he
was afraid to return to the vehicle because he believed his
uncle had been killed, and he did not want to see him in that
condition. He further testified that he did not remove
anything from the vehicle and did not see anyone, other than
an officer or an emergency responder, remove anything from
the vehicle. Mr. Petty said that he did not see the person
who opened the car doors remove anything from the vehicle. He
also testified that there were more than four people around
Mr. Petty stated that he provided a statement to officers and
identified defendant as the shooter in a photographic lineup.
Officers took photographs of his injuries sustained during
the shooting incident, and he testified that the photographs
accurately depicted his injuries. He testified that he never
had any dispute with defendant and that defendant had no
reason to shoot him on the date of the incident. According to
Mr. Petty, he did not attack defendant, and instead, he
exited the vehicle and fled in a different direction.
On cross-examination, Mr. Petty acknowledged that although
the conversation became heated, he and Mr. Williams chose to
stay during the altercation when they could have driven away.
He also stated that Mr. Williams told defendant that if he
had something against him, then he would have previously
“smacked” him when they first met. Mr. Petty
further stated that Mr. Williams was “furious”
because he believed defendant was behaving disrespectfully to
him during the conversation.
Barbara Williams, the mother of the murder victim, testified
on behalf of the State that prior to the shooting, her son
(Mr. Williams) left her house with her grandson, Mr. Petty.
She explained that Mr. Williams was accompanying Mr. Petty to
the house of her daughter, who was also Mr. Petty's
mother. Ms. Williams stated that it was common for her family
to drive down Avenue I to Spruce Street to exit the
neighborhood and reach her daughter's house.
Ms. Williams stated that within minutes after Mr. Williams
and Mr. Petty left her house, Mr. Petty returned and informed
her that her son was the victim of a shooting. According to
Ms. Williams, neither she nor Mr. Petty called 9-1-1 on the
date of the incident. She further stated that she walked up
to the vehicle and saw her son lying inside. She explained
that Mr. Williams' eyes were open at first, and when his
eyes closed, she called her daughter. She also testified that
she did not see Mr. Williams or Mr. Petty with a gun, she did
not keep a gun in her house, and she did not know Mr.
Williams to possess a gun. Ms. Williams further testified
that no one brought a gun to her house after the shooting.
M.H., who was eleven years old at the time of trial,
testified that on the date of the incident, she and her
younger brother were in her mother's vehicle, which was
parked outside of their residence on Spruce Street. M.H.
testified that a man and two boys were talking while standing
on the sidewalk. She stated that a gold SUV pulled up and
stopped. M.H. stated that the passenger of the SUV and the
man on the sidewalk began arguing. She testified that as the
arguing became louder, the man standing outside the SUV
pulled a gun from his jacket pocket and shot the other man.
According to M.H., she did not see anyone else with a gun.
She also stated that she was unable to see inside the SUV.
M.H. said that after the shooting began, she grabbed her
younger brother, ducked between the car seats, and continued
to peek. She also stated that the two boys on the sidewalk
began running, and the driver of the SUV jumped out and also
began running. M.H. testified that after the shooter shot the
man, he ran to a corner,  shot “on the ground,
” and ran towards the back street of the neighborhood.
M.H. testified that the driver of the SUV did not have
anything in his hands when he exited the vehicle because he
was pulling his pants up.
M.H. stated that after the shooter left the scene, her mother
told her to grab her brother, and they ran inside their house
and locked the doors. M.H. stated that she later provided a
statement to police officers. She explained that she was
unable to identify anyone from a photographic lineup because
she only saw the side of the shooter's face. M.H.
described the perpetrator as wearing a black coat, having
dreadlocks that reached down to the middle of his back, and
having gold teeth.
On cross-examination, M.H. testified that she saw the vehicle
that was occupied by the victims circle the street twice. She
also acknowledged that in her statement to the police, she
stated that she did not see “the guy run from the
car.” On redirect, M.H. explained that she was nervous,
shaking, and crying when she spoke to the police, but that
she really did see someone exit the vehicle. She also stated
that she only saw one gun during the incident.
Chiva Lagarde, who testified for the State, stated that at
the time of the shooting, she was inside of her residence on
Spruce Street near the corner of Avenue I. She stated that
prior to the shooting, she brought the garbage outside and
saw defendant, Rashad Walker, and David Alexander walking
towards Spruce Street. She explained that she knew defendant,
Mr. Williams, Mr. Petty, Mr. Walker, and Mr. Alexander from
Ms. Lagarde stated that she returned inside and was in her
kitchen cooking when she heard gunshots. After the shooting,
she looked out of her screen door and saw two people running.
Defendant was running farther away from her residence, and
the other unknown person ran through the field across from
her residence. She stated that she was unable to determine
whether either person held a gun because she was not wearing
her eyeglasses at that time. Ms. Lagarde stated that after
the shooting, she called 9-1-1, went outside, and saw people
walking towards the vehicle.
Ms. Lagarde walked towards the vehicle and saw someone sunken
in between the two front seats. She testified that another
female, possibly named Shandell, opened the driver side door
and screamed. Ms. Lagarde stated that she opened the
passenger side door because she was unable to see anything
through the driver's side. She stated that Mr. Williams
looked at her and made guttural noises as if he was trying to
speak to her. She testified that she did not see a gun in the
vehicle, but she was focused on Mr. Williams and not on the
interior of the vehicle. Ms. Lagarde also testified that she
did not remove a gun from the vehicle and did not see anyone
else remove a gun from the vehicle. She stated that she saw
Mr. Petty outside after the shooting, but she was unsure
whether or not he approached the vehicle.
Sergeant Michael Nocito, a road supervisor of the Westwego
Police Department, testified on behalf of the State that on
January 2, 2012, he was the first officer to respond to a
shooting that occurred in the 1000 block of Spruce Street in
Westwego. Sergeant Nocito stated that he observed a black
male in the passenger seat of a SUV. He described the victim
as being slumped over the console towards the back of the
vehicle and that the top portion of his shirt was “full
of blood.” Sergeant Nocito explained that after he
secured the crime scene, he located the driver of the
Keith Dykes, a former uniformed patrolman of the Westwego
Police Department, testified on behalf of the State that on
the date of the incident, he patrolled the neighborhood where
the shooting occurred. He stated that he stopped three
individuals who fit the general description of the subjects.
Mr. Dykes stated that he conducted a field interview of two
of the subjects, and another officer conducted a field
interview on the third subject. According to Mr. Dykes, the
subjects identified themselves as “Jared” Walker
and David Alexander during the interview. On
cross-examination, Mr. Dykes stated that his attempt to
verify the information by conducting a search for both names
yielded no results. On redirect, Mr. Dykes testified that
another officer was able to determine that Mr. Walker had
provided a false name.
Detective Corey Boudreaux of the Westwego Police Department
testified on behalf of the State that on the date of the
incident, he was working dually as a patrolman and a crime
scene technician. He testified that he did not locate any
firearms in the vehicle or anywhere on the scene. He stated
that the evidence collected at the scene included spent
casings and bullet fragments. On cross-examination, Detective
Boudreaux acknowledged that although he did not see anyone
access the vehicle, anyone was able to access the vehicle.
Thomas Bryson, a former officer of the Westwego Police
Department, testified on behalf of the State that on the date
of the incident, he participated in the investigation that
led to the arrest of defendant for the shooting death of Mr.
Williams. Mr. Bryson testified that he did not develop any
information or any physical evidence that would indicate that
there was more than one gun at the time of the shooting. Mr.
Bryson stated that one or more 9-1-1 callers provided
information that there was one suspect. He explained that one
9-1- 1 caller stated that three black males left the area,
which prompted the officers to look for those subjects to be
Mr. Bryson also testified that he interviewed Mr. Petty on
the date of the incident. He stated that Mr. Petty appeared
nervous. He became aware that Mr. Petty had suffered injuries
and that he received medical treatment after the interview.
According to Mr. Bryson, after defendant had been developed
as a possible suspect, he presented Mr. Petty with a
six-panel color photographic lineup. Mr. Bryson stated that
Mr. Petty identified defendant as the person he saw commit
Mr. Bryson explained that although he made efforts to
discover the firearm used in the incident, including
executing a search of defendant's residence twice, he was
unable to locate the firearm.
Mr. Bryson testified that Rashad Walker was the only person
to make a statement that suggested there was more than one
gun. However, although Officer Dykes conducted a field
interview of Mr. Walker on the date of the incident, Mr.
Walker provided an inaccurate name and also did not mention
at that interview that he had witnessed the shooting.
According to Mr. Bryson, Mr. Walker provided three taped
statements to the police, including a statement on January 4
and two statements on January 11. Nine days after the date of
the incident, in his second taped statement on January 11,
2012, Mr. Walker indicated for the first time that the
victim, Mr. Williams, had a gun at the time of the shooting.
According to Mr. Bryson, Mr. Walker did not provide this
information in his first two taped statements.
In addition, Mr. Bryson stated that relevant information was
recorded by two neighborhood crime cameras in close proximity
to the incident, located on Avenue I and Spruce Street, and
at Avenue I and Sixth Street. He testified that although it
“panned away” immediately before the shooting,
one of the crime camera's recordings depicted the
victim's SUV and the three individuals standing near the
vehicle. Mr. Bryson further stated that the crime
camera's recording depicted an individual, later
identified as Mr. Petty, lift up his shirt and examine his
body. The crime camera also showed a woman, later identified
as 9-1-1 caller Ms. Lagarde, running towards the vehicle. He
further testified that between the time that the shooting
would have occurred and the time the recording ended
approximately forty minutes later, he did not observe anyone
that was non-law enforcement remove a gun or any other object
from the vehicle. Mr. Bryson further explained that the