KATHLEEN KAY, Magistrate Judge.
Before the court is a pro se application for a writ of habeas corpus pursuant to 28 U.S.C § 2254, filed by Rodney Tolliver ("petitioner") [docs. 1, 4]. The petitioner is a prisoner in the custody of the Louisiana Department of Public Safety and Corrections.
This matter is referred to the undersigned for review, report, and recommendation in accordance with 28 U.S.C. § 636 and the standing orders of the court. For the following reasons
On February 19, 2004, the petitioner was indicted in the Fifteenth Judicial District, Lafayette Parish, Louisiana, on one count of first degree murder. Doc. 15, att. 7, p. 22. The charge related to the killing of Yolande Theriot on or about April 14, 1985.
The petitioner appealed the verdict to the Louisiana Third Circuit Court of Appeal, raising the following assignments of error:
State v. Tolliver, 11 So.3d 584, 587 (La. Ct. App. 3d Cir. 2009). Finding no merit to the above claims, the Third Circuit affirmed the conviction. Id. at 587-613. The petitioner sought review in the Louisiana Supreme Court, which denied same on February 24, 2010. State v. Tolliver, 28 So.3d 269 (La. 2010). He did not file a petition for certiorari in the United States Supreme Court. Doc. 1, p. 2.
The petitioner then filed an application for post-conviction relief in the trial court on December 29, 2010.
Id. It is unclear what action was taken by the trial court after that point or when it was taken if it was but it appears the application was initially denied by the trial court.
An evidentiary hearing was conducted on April 29, 2014, relating to the ineffective assistance claims. Doc. 15, att. 26, pp. 1-69. At the conclusion of the hearing the trial court denied the application. Id. at 67-68. The petitioner sought a writ of review in the Third Circuit, which denied same. Doc. 15, att. 28. The petitioner then sought review in the Louisiana Supreme Court, which likewise denied same on November 16, 2015. Doc. 15, att. 31.
The petitioner filed a third application for post-conviction relief in the trial court on July 16, 2014, claiming, based on allegedly newly discovered evidence, that trial counsel had received a plea offer but failed to communicate it to him. Doc. 15, att. 26, pp. 70-94. That application was denied by the trial court. Id. at 94. He then sought review in the Louisiana Third Circuit Court of Appeal which held that the alleged newly discovered evidence did not qualify as an exception to post-conviction relief time limits set out under Article 930.8 of the Louisiana Code of Criminal Procedure. Doc. 15, att. 2, p. 41. The Louisiana Supreme Court denied review on December 7, 2015, also finding that the matter was untimely under Article 930.8. Id. at 35-36.
The instant petition was filed on December 9, 2015. Doc. 1, p. 10. Here the petitioner raises the following claims:
Doc. 1, att. 1; doc. 4.
Federal law imposes a one-year limitation period within which persons who are in custody pursuant to the judgment of a state court may seek habeas review in federal court. 28 U.S.C. § 2244(d)(1). This period generally runs from the date that the conviction becomes final. 28 U.S.C. § 2244(d)(1)(A). The time during which a properly-filed application for post-conviction relief is pending in state court is not counted toward the one-year limit. 28 U.S.C. § 2244(d)(2); Ott v. Johnson, 192 F.3d 510, 512 (5th Cir. 1999). However, any lapse of time before proper filing in state court is counted. Flanagan v. Johnson, 154 F.3d 196, 199 n. 1 (5th Cir. 1998).
A state application is considered pending both while it is in state court for review and also during intervals between a state court's disposition and the petitioner's timely filing for review at the next level of state consideration. Melancon v. Kaylo, 259 F.3d 401, 406 (5th Cir. 2001). The limitations period is not tolled, however, for the period between the completion of state review and the filing of the federal habeas application. Rhines v. Weber, 125 S.Ct. 1528 (2005). Accordingly, in order to determine whether a habeas petition is time-barred under the provisions of §2244(d) the court must ascertain: (1) the date upon which the judgment became final either by the conclusion of direct review or by the expiration of time for seeking further direct review, (2) the dates during which properly filed petitions for post-conviction or other collateral review were pending in the state courts, and (3) the date upon which the petitioner filed his federal habeas corpus petition.
Before proceeding to the merits of the issues raised in the petition, this court considers the doctrines of procedural default and exhaustion of state court remedies. Exhaustion and procedural default are both affirmative defenses that may be waived by the state if not raised in its responsive pleadings. See, e.g., Cupit v. Whitley, 28 F.3d 532, 535 (5th Cir. 1994). However, the federal district court may also consider both doctrines on its own motion. Magouirk v. Phillips, 144 F.3d 348, 357-59 (5th Cir. 1998). Therefore we consider any claims by respondent under these doctrines, in addition to conducting our own review.
The federal habeas corpus statute and decades of federal jurisprudence require a petitioner seeking federal habeas corpus relief to exhaust all available state court remedies prior to filing his federal petition. 28 U.S.C. § 2254(b)(1); e.g., Whitehead v. Johnson, 157 F.3d 384, 387 (5th Cir. 1998). This is a matter of comity. Ex parte Royall, 6 S.Ct. 734, 740-41 (1886). In order to satisfy the exhaustion requirement, the petitioner must have "fairly presented" the substance of his federal constitutional claims to the state courts "in a procedurally proper manner according to the rules of the state courts." Wilder v. Cockrell, 274 F.3d 255, 259 (5th Cir. 2001); Dupuy v. Butler, 837 F.2d 699, 702 (5th Cir. 1988). Each claim must be presented to the state's highest court, even when review by that court is discretionary. E.g., Wilson v. Foti, 832 F.2d 891, 893-94 (5th Cir. 1987). Exhaustion is not satisfied if the petitioner presents new legal theories or entirely new factual claims in support of his federal habeas petition. Brown v. Estelle, 701 F.2d 494, 495 (5th Cir. 1983).
In Louisiana the highest court is the Louisiana Supreme Court. See LSA-Const. art. 5, § 5(a). Thus, in order for a Louisiana prisoner to have exhausted his state court remedies he must have fairly presented the substance of his federal constitutional claims to the Louisiana Supreme Court in a procedurally correct manner, supported by the legal theories and factual allegations that he raises now. Nobles v. Johnson, 127 F.3d 409, 420 (5th Cir. 1997).
When a petitioner has defaulted a claim by violating a state procedural rule which constitutes adequate and independent grounds to bar direct review in the United States Supreme Court, he may not raise that claim in a federal habeas proceeding absent a showing of cause and prejudice or actual innocence. Coleman v. Thompson, 111 S.Ct. 2546, 2554 (1991). Failure to satisfy state procedural requirements results in forfeiture of a petitioner's right to present a claim in a federal habeas proceeding. Murray v. Carrier, 106 S.Ct. 2639 (1986). This is not a jurisdictional matter; rather, it is grounded in concerns of comity and federalism. Trest v. Cain, 118 S.Ct. 478, 480 (1997).
Procedural default exists where (1) a state court clearly and expressly bases its dismissal of the petitioner's constitutional claim on a state procedural rule and that procedural rule provides an independent and adequate ground for the dismissal ("traditional" procedural default)
When a state court adjudicates a petitioner's claim on the merits, this court reviews the ruling under the deferential standard of 28 U.S.C. § 2254(d). Corwin v. Johnson, 150 F.3d 456, 471 (5th Cir. 1998). Section 2254(d) provides that a writ of habeas corpus shall not be granted unless the state court's adjudication on the merits resulted in a decision that was either (1) contrary to clearly established federal law or involved an unreasonable application of that law, or (2) based on an unreasonable determination of the facts in light of the evidence before the state court. 28 U.S.C. § 2254(d).
The first standard, whether the state court's adjudication was contrary to or involved an unreasonable application of clearly established federal law, applies to questions of law as well as mixed questions of law and fact. A petitioner must demonstrate that the "fair import" of the state court decision shows that the court failed to apply the controlling federal standard. Early v. Packer, 537 U.S. 3, 9 (2002) (per curiam). Furthermore, the decision must be "so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fair-minded disagreement." Harrington v. Richter, 131 S.Ct. 770, 784 (2011). A decision is contrary to clearly established federal law "if the state court applies a rule that contradicts the governing law set forth [by the Supreme Court], or if the state court confronts facts that are materially indistinguishable from a relevant Supreme Court precedents and arrives at a [contrary] result. . . ." Bell v. Cone, 543 U.S. 447, 452-53 (2005), quoting Williams v. Taylor, 529 U.S. 362, 405 (2000) (internal quotations omitted).
The second standard — whether the state court's adjudication was based on an unreasonable determination of the facts in light of the evidence — applies to questions of fact. It is insufficient for a petitioner to show that the state court erred in its factual determination but rather he must demonstrate that the factual determination was objectively unreasonable, a "substantially higher threshold." Schriro v. Landrigan, 550 U.S. 465, 473 (2007). "[A] state-court factual determination is not unreasonable merely because the federal habeas court would have reached a different conclusion in the first instance." Wood v. Allen, 130 S.Ct. 841, 849 (2010). Rather, the petitioner has to show that "a reasonable factfinder must conclude" that the determination of facts by the state court was unreasonable. Rice v. Collins, 546 U.S. 333, 341 (2006).
As a preliminary matter this court reviews the petitioner's application for timeliness, failure to exhaust state court remedies, and procedural default. If the claim is procedurally viable, its merits are considered under the general standards set forth in Section II.C.
Here the petitioner's conviction became final 90 days after the judgment of the Louisiana Supreme Court, when his time for seeking review in the United States Supreme Court expired. See Sup. Ct. R. 13. Therefore his one year limit for filing this petition began to run on May 26, 2010. It was suspended by the filing of his application for post-conviction relief on December 29, 2010, by which time
The petitioner's ineffective assistance claim relating to the plea bargain offer is subject to procedural default due to the state courts' decision that it was untimely under Article 930.8. Griffin v. Michael, 2006 WL 3759688, *4 (W.D. La. Nov. 21, 2006) (citing Glover v. Cain, 128 F.3d 900, 902 (5th Cir. 1997)). The petitioner argues that he did not learn of the alleged plea offer until the April 2014 evidentiary hearing, thus excusing the procedural default under the doctrine of cause and prejudice or rendering it erroneously applied. However, the evidence cited by the petitioner is clearly not evidence of a plea offer to begin with. Instead, it is part of a trial memorandum prepared by a member of the defense team, advising the defense attorney of the weaknesses of the case and recommending that he therefore "try to plea the defendant to a lesser charge." Doc. 4, pp. 9-11; see doc. 15, att. 26, p. 114 (trial memorandum excerpt); doc. 15, att. 26, p. 43 (description of trial memorandum from evidentiary hearing). At the evidentiary hearing the petitioner's former attorney only testified that he had written to the district attorney requesting that a plea bargain be offered, not that any offer was extended. Id. at 42. Therefore this newly discovered evidence is not what the petitioner alleges it to be and cannot excuse his untimeliness in raising the claim or the state courts' decision not to review it.
Claims of ineffective assistance of counsel are gauged by the guidelines set forth by the Supreme Court in Strickland v. Washington, 104 S.Ct. 2052 (1984). Under Strickland, a petitioner must demonstrate: (1) that his counsel's performance was deficient, requiring a showing that the errors were so serious such that he failed to function as "counsel" as guaranteed by the Sixth Amendment, and (2) that the deficiency so prejudiced the defendant that it deprived him of a fair trial or of a dependable verdict. Id. at 2064. The first prong does not require perfect assistance by counsel; rather, petitioner must demonstrate that counsel's representation fell beneath an objective standard of reasonableness. Id. Judges have been cautioned towards deference in their review of attorney performance under Strickland claims in order to "eliminate the potential distorting effect of hindsight." Rector v. Johnson, 120 F.3d 551, 563 (5th Cir. 1997) (quoting Strickland, 104 S.Ct. at 1065). Accordingly, the court should "indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance." Id.
The second prong requires the petitioner to show "a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland, 104 S.Ct. at 2055-56. "A reasonable probability is a probability sufficient to undermine confidence in the outcome." Id. at 2056. In other words, the petitioner must show prejudice great enough to create a substantial, rather than conceivable, likelihood of a different result. Pape v. Thaler, 645 F.3d 281, 288 (5th Cir. 2011) (quoting Cullen v. Pinholster, 131 S.Ct. 1388, 1403 (2011)).
"Both of [Strickland's] prongs must be proven, and the failure to prove one of them will defeat the claim, making it unnecessary to examine the other prong." Williams v. Stephens, 761 F.3d 561, 566-67 (5th Cir. 2014), cert. denied, 135 S.Ct. 1735, 191 L. Ed. 2d 706 (2015). However, we will also examine whether the cumulative effect of any prejudice found could satisfy Strickland. E.g., Richards v. Quarterman, 566 F.3d 553, 564 (5th Cir. 2009).
The petitioner first alleges that trial counsel, Peter John, was ineffective for failing to procure the attendance of witnesses he later described as crucial to the defense. This claim centers on three uncalled witnesses: DNA expert Ronald Acton, investigator Virginia Castel-Lovell, and former FBI profiler Patricia Kirby.
John moved to enroll as defense counsel on February 15, 2007, two months before the trial date. Doc. 15, att. 8, p. 23. He filed a motion to continue on April 17, 2007, the day trial began. Id. at 50-52. There he stated that the presence of a DNA expert would be "essential to the defense of this matter" and that "the defense expert is unavailable to testify at the trial as presently set." Id. at 50. An attached letter from Dr. Ronald Acton indicated that he (Acton) could not appear because he was "out of town Monday and Tuesday and possibly testifying in another trial on Wednesday." Id. at 53. The motion was denied in open court. Id. at 52.
Castel-Lovell, who had been the initial investigator in the case, was subpoenaed by both the state and the defense. See Tolliver, 11 So.3d at 602 n. 5. At trial, after she had been called by the state and extensively cross-examined twice by the defense, she asked, "Do I leave now?" and the trial judge responded, "Yes, ma'am." Doc. 15, att. 11, p. 82. The following week, during the defense's case, John filed a motion to recess the trial. Doc. 15, att. 16, p. 17. At a sidebar, John stated that Castel-Lovell "for some reason, is back in New York . . . and we're trying to reach her."
Id. at 33. John replied that she was a "critical witness" and that his office would make efforts to accommodate her return as soon as possible. Id. He also indicated that he would use Castel-Lovell's testimony to point out inconsistencies in the testimony of another witness, Joseph Delhomme, who was the original suspect in the case. Doc. 15, att. 18, p. 1; see note 1 supra. However, John's clerk stated under oath that she was unsuccessful in her attempts to contact Castel-Lovell after that point. Doc. 15, att. 18, p. 30.
Finally, the defense announced its intention to introduce testimony from Patricia Kirby, a former FBI profiler, as an expert witness in the case. Doc. 15, att. 16, pp. 11-13. The state then moved to determine the admissibility of Kirby's testimony. Id. at 13-14. In response to the court's question of whether Kirby would come willingly,
John's failure to call these three witnesses was raised as one of the petitioner's ineffective assistance claims on post-conviction relief and explored at the evidentiary hearing on that application. See doc. 15, att. 26, pp. 1-69. At this hearing John testified that he had consulted extensively with Acton on the DNA evidence involved in the case and that Acton had provided a written report. Id. at 8-13. He stated that, based on this consultation and report, he determined that Acton's testimony would have actually been harmful to the defense, though Acton continued to prove useful as a consulting expert and John would have desired his presence at trial for that reason. Id. at 13-16. When questioned about his argument that a continuance was necessary because Acton's presence at trial was "essential" to the defense, John admitted that his interest was actually in obtaining more time for general preparation rather than securing Acton's presence in particular. Id. at 21-22. John did not have specific recollections relating to Castel-Lovell's testimony. Id. at 23-24, 42-43. With respect to Kirby, however, he stated:
Id. at 29. He also noted that he had enrolled as counsel for the defendant just two months before the trial date, at which point the court felt the case "was going on for years too long." Id. at 28.
The petitioner fails to demonstrate how the testimony of any of these witnesses would have aided his case. John's representations at trial are too vague and unsupported to establish prejudice, especially in light of his retreat from these assertions at the evidentiary hearing. It is clear from John's account in the evidentiary hearing, juxtaposed against his unconvincing assertions at trial, that he embellished the importance of the prospective witnesses in order to gain more time. Therefore the petitioner cannot show that inability to obtain the testimony of these witnesses was deficient performance, much less prejudicial, and so has not satisfied either one of Strickland's prongs.
The petitioner next complains that John was ineffective for failing to secure expert testimony. He hypothesizes, based on the suspect profile produced by Kirby before DNA evidence led to the petitioner, that the perpetrator was a white male. Doc. 1, att. 1, pp. 16-17. He alleges that the true perpetrator might have found rags containing the petitioner's DNA outside of the victim's home and moved them inside the home in order to frame the petitioner. Id. at 17-18. He also challenges the nature of the victim's injuries, the absence of semen in her vagina, and the fact that "the spermatozoa discovered were all dead." Id. at 18. However, he provides no citations or expert opinions to make these contentions in any way supportive of his claim of innocence.
At the evidentiary hearing John described his preparation for dealing with the physical evidence at trial and his use of Acton as a consulting expert. Doc. 15, att. 26, pp. 12-16, 17-18, 31-34. He noted that Acton had found the DNA analysis to be reliably done, with a fingerprint also accounting for the petitioner's proximity to the crime scene.
Finally, the petitioner challenges John for failing to obtain independent testing of certain DNA samples. However, as John testified above, his consulting expert had already provided an opinion that the state laboratory's methodologies and findings were sound. See doc. 15, att. 26, pp. 41-42. A decision not to pursue additional testing would therefore be sound strategy, and so the petitioner cannot satisfy either one of Strickland's prongs under this claim.
Lastly, we analyze the above claims for any cumulative error. Because we have not found any instance of prejudice, however, the cumulative effect is also nil. Therefore the petitioner fails to show error to the state court's denial of his ineffective assistance claims and is not entitled to federal habeas relief based on any of the above allegations.
The petitioner claims that the trial court erred by denying the defense's pretrial motion to continue in order to obtain Acton's testimony and its motions to recess the trial in order to obtain Castel-Lovell's and Kirby's testimony.
Under Louisiana law, a motion for continuance based on absence of a witness must state all of the following:
LA. C. CR. P. art. 709.
The decision to grant a continuance or recess is within the discretion of the trial court. Hicks v. Wainwright, 633 F.2d 1146, 1148 (5th Cir. 1981); State. Brown, 677 So.2d 1057, 1065 (La. Ct. App. 1st Cir. 1996). When denial of a continuance forms the basis of a federal habeas claim, the petitioner must show not only that the trial court abused its discretion but also that the decision was "so arbitrary and fundamentally unfair that it violates constitutional principles of due process." Hicks, 633 F.2d at 1148.
In determining whether the trial court abused its discretion, the Fifth Circuit looks to the following nonexhaustive list of factors:
Johnson v. Puckett, 176 F.3d 809, 822 (5th Cir. 1999). We apply these factors to each of the challenged decisions.
As stated above, the defense filed a motion to continue in order to obtain Acton's testimony on the first day of trial. Doc. 15, att. 8, pp. 50-52. The motion was denied in open court. Id. at 52.
In arguing the motion, John stated that he had discovered the previous day that Acton could not testify in the trial as scheduled because he was out of town that day and possibly testifying in another trial the next day. Doc. 15, att. 5, pp. 97-98. Thus, John contended, "[t]here is a possibility that we'll get him here later this week, but there's a possibility not." Id. at 98. John contended, as referenced above, that Acton's testimony was critical to the defense's theory of the case and that the defense also needed more time to prepare and possibly seek another type of expert — a population geneticist — based on the information obtained from Acton. Id. at 98. The state opposed the motion, arguing in relevant part that Acton had only established that he was not available for the first two days of trial, which would not preclude him from testifying when the defense put on its case. Doc. 15, att. 6, pp. 1-2. The court agreed, remarking that the matter had already been continued five times before and that it was therefore unwilling to delay the matter any further. Id. at 2-3.
The above showing set out a weak case for continuing the trial. John did not describe with specificity how the testimony of Acton and/or the population geneticist would support the defense's theory of the case. He did not even show that Acton was unavailable to testify in the trial as it was currently set. Therefore the petitioner cannot show that the trial court abused its discretion in denying the motion, and so demonstrates no error to the state court's ruling on this portion of the claim.
Based on the circumstances described under the ineffective assistance claim, John filed a Motion to Recess Trial on April 23, 2007, seeking to stay proceedings until the following morning at 9:00 am in order to obtain the testimony of Virginia Castel-Lovell and Patricia Kirby. Doc. 15, att. 8, p. 63. The trial court denied the motion. Id. at 64.
Much of the argument pertaining to Castel-Lovell was centered on the manner in which she had come to believe she was released from her subpoena, as described above. See doc. 15, att. 16, pp. 98-100; doc. 15, att. 17, pp. 27-30. As we have noted, Castel was extensively examined and cross-examined when she appeared as a witness for the state. Doc. 15, att. 10, pp. 21-100; doc. 15, att. 11, pp. 1-82. In urging his motion, John argued that Castel-Lovell could be used to rebut the testimony of another witness, Joseph Delhomme. Doc. 15, att. 18, p. 1. However, as we noted above, his assertions were vague and unsupported. Furthermore, John's office was unable to establish contact with Castel-Lovell on April 23 in order to determine when she might return. Id. at 30.
Additionally, although John indicated that he wanted Kirby to testify as to a profile she had developed of the suspect before DNA evidence led to the petitioner, he did not establish that she would be available to testify if the recess were granted. See doc. 15, att. 16, pp. 11-16. As shown above, John admitted that he had told Kirby and told her not to fly down to Louisiana for the last day of trial because he believed that she would not be allowed to testify. Doc. 15, att. 18, p. 39. Accordingly, it was not an abuse of discretion to deny any motion to recess where the movant failed to establish the materiality of one witness's testimony and that either witness would be available at the time to which he sought to defer the trial.
Because the petitioner has not demonstrated that either denial was an abuse of discretion, he cannot show that the trial court's actions under this claim rise to the level of a constitutional violation. Accordingly, he shows no error to the state court's ruling and no right to federal habeas relief.
The petitioner also claims that the trial court erred in allowing the prosecutor to present inadmissible hearsay, thereby violating his rights under the Confrontation Clause of the Sixth Amendment.
The Confrontation Clause, made applicable to the states through the Fourteenth Amendment, provides that "[i]n all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him." U.S. CONST. amend. VI; Pointer v. Texas, 85 S.Ct. 1065, 1067-68 (1965). "If one were to read this language literally, it would require, on objection, the exclusion of any statement made by a declarant not present at trial. This approach has been rejected, though, as unintended and too extreme." Fratta v. Quarterman, 536 F.3d 485, 499 (5th Cir. 2008) (quotations and citations omitted). Instead, the court looks to criteria set out in Crawford v. Washington, 124 S.Ct. 1354 (2004) to determine whether the admission of the statements violates the Confrontation Clause. See Brown v. Epps, 686 F.3d 281, 285-86 (5th Cir. 2012). A Confrontation Clause violation only entitles the petitioner to habeas relief when the error was sufficiently prejudicial. Hughes v. Quarterman, 530 F.3d 336, 345 (5th Cir. 2008). This occurs only where the error had a "substantial and injurious effect or influence in determining the jury's verdict." Brecht v. Abrahamson, 113 S.Ct. 1710, 1714 (1993) (quoting Kotteakos v. United States, 66 S.Ct. 1239, 1253 (1946)).
The petitioner's complaint centers on the autopsy report prepared in 1985 by Dr. Karuna Kukreja, who did not testify at trial. A summary of the autopsy report was introduced as State's Exhibit #42 at trial, during the testimony of state's expert witness Dr. Cameron Snyder, a forensic pathologist. Doc. 15, att. 12, p. 24. Snyder stated that he had reviewed this report and agreed with Kukreja's conclusions. Id. at 25. No objection was offered to the exhibit or the statement.
Even if we were to assume that the court erred in admitting the exhibit or that trial counsel rendered deficient performance for failing to object, petitioner still does not show any harm flowing from the putative error. Testimony based on the autopsy report was used to establish the injuries suffered by the victim and her cause of death. See id. at 29-37. However, the state's exhibits included photographs showing the crime scene, the victim's body, and her injuries. Id. at 12-13. Additionally, the defense made no challenge to the DNA evidence against the petitioner. Accordingly, the autopsy report and Snyder's summary of its findings could not be said to have influenced the verdict in any substantial manner. The petitioner therefore shows no error to the state court's ruling and no right to federal habeas relief under this claim.
Finally, the petitioner alleges that the trial court erred in releasing Castel-Lovell from her subpoena.
The Compulsory Process Clause of the Sixth Amendment grants a defendant the right to offer testimony of favorable witnesses and to compel their attendance at trial. U.S. CONST. amend. VI. Thus the essence of this claim is that the trial court denied the petitioner his Sixth Amendment right to compulsory process when it released Castel-Lovell from the subpoena. In order to prevail, the petitioner therefore must show that the uncalled witness's testimony would have been both material and favorable to the defense. Janecka v. Cockrell, 301 F.3d 316, 326 (5th Cir. 2002) (citing United States v. Valenzuela-Bernal, 102 S.Ct. 3440 (1982)).
Here the petitioner states that "[t]he testimony of all these witnesses mentioned in this writ application was very helpful to [his] case." Doc. 1, att. 1, pp. 26-27. He also muses, "Had Mr. Tolliver been able to present their testimony to the jury, perhaps the jury would have found it unbelievable and convicted him anyway — but of course we will never know."
Based on the foregoing,
Pursuant to 28 U.S.C. § 636(b)(1)(C) and Rule 72(b) of the Federal Rules of Civil Procedure, the parties have fourteen (14) days from receipt of this Report and Recommendation to file any objections with the Clerk of Court. Timely objections will be considered by the district judge prior to a final ruling.
Failure to file written objections to the proposed factual findings and/or the proposed legal conclusions reflected in this Report and Recommendation within fourteen (14) days following the date of its service shall bar an aggrieved party from attacking either the factual findings or the legal conclusions accepted by the District Court, except upon grounds of plain error. See Douglass v. United Services Automobile Association, 79 F.3d 1415, 1429-30 (5th Cir. 1996).
In accordance with Rule 11(a) of the Rules Governing Section 2254 Cases in the United States District Courts, this court must issue or deny a certificate of appealability when it enters a final order adverse to the applicant. Unless a Circuit Justice or District Judge issues a certificate of appealability, an appeal may not be taken to the court of appeals. Within fourteen (14) days from service of this Report and Recommendation, the parties may file a memorandum setting forth arguments on whether a certificate of appealability should issue. See 28 U.S.C. § 2253(c)(2). A courtesy copy of the memorandum shall be provided to the District Judge at the time of filing.
In 2003, a detective from the Lafayette Police department began testing fingerprints from old case files. Id. at 592. A fingerprint from the Yolande Theriot file yielded a match to the petitioner, and then DNA testing of remaining physical evidence, including slides of swabs taken from the victim's mouth and cutouts from a towel found at the crime scene, also matched the petitioner. Id. at 592-94. The petitioner was sixteen years old at the time of the murder and was the nephew of a man who lived in a house on the victim's property. Id. at 595.
