Odis v. Vannoy

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF LOUISIANA

CHRISTOPHER ODIS, CIVIL ACTION

Plaintiff

VERSUS NO. 18-9877

DARREL VANNOY, SECTION "E"(2)

Defendant

ORDER AND REASONS

Before the Court is a Report and Recommendation issued by Magistrate Judge

Joseph C. Wilkinson, Jr. recommending Petitioner Christopher Odis’s petition for federal

habeas corpus relief be denied and dismissed with prejudice.1 Petitioner objected to the

magistrate judge’s Report and Recommendation.2 For the reasons that follow, the Court

ADOPTS the Report and Recommendation as its own, and hereby DENIES Petitioner’s

application for relief.

BACKGROUND

Petitioner is an inmate currently incarcerated in the Louisiana State Penitentiary

in Angola, Louisiana.3 On July 28, 2011, Petitioner was charged by bill of information in

Lafourche Parish with sexual battery of A.D., a juvenile under age 13.4 Petitioner was tried

before a jury on October 22 through 24, 2013, and found guilty as charged.5 At a

November 21, 2013, hearing, the state trial court denied Petitioner’s motion for post-

1 R. Doc. 12.

2 R. Doc. 13.

3 R. Doc. 1.

4 St. Rec. Vol. 1 of 4, Bill of Information, 7/28/11. Pursuant to La. Rev. Stat. § 46:1844(W), family and a

minor victims of sex crimes are referred to by their initials. This Court will do the same

5 St. Rec. Vol. 1 of 4, Trial Minutes, 10/22/13; Trial Minutes, 10/23/13; Trial Minutes, 10/24/13. Trial

Transcript, 10/22/13; St. Rec. Vol. 2 of 4, Trial Transcript, 10/23/13; Trial Transcript, 10/24/13. The matter

was first called to trial on January 29, 2013, but Petitioner failed to appear. St. Rec. Vol. 2 of 4, Trial

Transcript, 1/29/13.

verdict judgment of acquittal based on sufficiency of the evidence.6 After waiver of legal

delays, the court sentenced Petitioner that same day to serve 75 years in prison, with the

first 25 years to be served without benefit of parole, probation or suspension of sentence.7

On direct appeal, Petitioner’s appointed counsel asserted two errors: (1) the State

failed to present sufficient evidence to uphold the conviction and (2) the state trial court

imposed an excessive sentence.8 Petitioner filed a pro se supplemental brief asserting that

the state trial court was without jurisdiction and not the proper venue, because the alleged

crime occurred in Terrebonne Parish.9 On November 7, 2014, the Louisiana First Circuit

affirmed Petitioner’s conviction and sentence, finding meritless the insufficient evidence

claim and finding the other claims procedurally barred from review.10 On September 18,

2015, the Louisiana Supreme Court denied Petitioner’s writ application.11 Petitioner did

not file a writ application with the United States Supreme Court.12

On November 17, 2016, Petitioner submitted to the state trial court an application

for post-conviction relief in which he asserted the following claims: (1) the state courts

misapplied Jackson v. Virginia, 443 U.S. 307 (1979); (2) Petitioner received ineffective

assistance of counsel because his trial and appellate counsel incorrectly argued the

insufficient evidence claim; (3) Petitioner received ineffective assistance when his trial

counsel failed to impeach the victim or seek a limiting instruction to the jury.13 On

6 St. Rec. Vol. 1 of 4, Sentencing Minutes, 11/21/13; Motion for Post-Verdict Judgment of Acquittal,

10/29/13; St. Rec. Vol. 2 of 4, Sentencing Transcript, 11/21/13.

7 St. Rec. Vol. 1 of 4, Sentencing Minutes, 11/21/13; St. Rec. Vol. 2 of 4, Sentencing Transcript, 11/21/13.

8 St. Rec. Vol. 4 of 4, Appeal Brief, 2014-KA-0534, 5/19/14.

9 St. Rec. Vol. 4 of 4, Supplemental Pro Se Appeal Brief, 2014-KA-0534, 7/16/14.

10 State v. Odis, No. 2014-K-0534, 2014 WL 5801507, at *1 (La. App. 1st Cir. Nov. 7, 2014); St. Rec. Vol. 2

of 4, 1st Cir. Opinion, 2014-K-0534, 11/7/14.

11 State v. Odis, 182 So.3d 21 (La. 2015); St. Rec. Vol. 2 of 4, La. S. Ct. Order, 2014-KO-2524, 9/18/15; La.

S. Ct. Letter, 2014-KO-2524, 12/3/14; St. Rec. Vol. 3 of 4, La. S. Ct. Writ Application (copy), 2014-KO-2254,

dated 11/25/14.

12 R. Doc. 12 at 3.

13 St. Rec. Vol. 2 of 4, Application for Post-Conviction Relief, 11/22/16 (dated 11/17/16).

January 11, 2017, the state trial court denied relief, holding that the insufficient evidence

claim and related arguments throughout the petition were procedurally barred as

repetitive of the claim addressed on direct appeal.14 The court also found meritless the

ineffective assistance claims, because trial counsel fully questioned the victim and the jury

was properly instructed to assess the credibility and weight of the evidence.15 On March

20, 2017, the Louisiana First Circuit denied Petitioner’s writ application.16 On September

28, 2018, the Louisiana Supreme denied Petitioner’s writ application, finding Petitioner’s

ineffective assistance of counsel claims meritless under Strickland v. Washington, 466

U.S. 668 (1984), and his insufficient evidence claim repetitive under La. Code Crim. P.

art. 930.4.17

On October 23, 2018, the Clerk of this Court filed Petitioner’s petition for federal

habeas corpus relief, wherein Petitioner asserts the following grounds for relief: (1) the

evidence was insufficient to support the conviction; (2) the sentence was excessive; (3)

the state trial court did not have jurisdiction because it was not the proper venue; (4) the

state courts misapplied Jackson to the insufficient evidence claim; (5) Petitioner received

ineffective assistance of trial and appellate counsel on the sufficiency of the evidence

claim; (6) Petitioner received ineffective assistance when trial counsel failed to discredit

the victim.18 The State filed a response in opposition to Petitioner’s federal petition

asserting that his federal habeas petition was not timely filed, two of the claims are

14 St. Rec. Vol. 2 of 4, Trial Court Order, 1/11/17.

15 Id.

16 State v. Odis, No. 2017-KW-0176, 2017 WL 1064747, at *1 (La. App. 1st Cir. Mar. 20, 2017); St. Rec. Vol.

3 of 4, 1st Cir. Order, 2017-KW-0176, 3/20/17. The State failed to include a copy of the writ application. The

Louisiana First Circuit’s records reflect that it was filed on February 8, 2017.

17 State ex rel. Odis v. State, 253 So.3d 138 (La. 2018); St. Rec. Vol. 3 of 4, La. S. Ct. Order, 2017-KH-0857,

9/28/18; La. S. Ct. Letter, 2017-KH-851, 5/25/17 (showing postal mailing 4/12/17).

18 R. Doc. 1.

procedurally improper and the remaining claims are meritless.19 In his reply, Petitioner

argues the State failed to apply the mailbox rule which would render his federal petition

timely, and the State’s procedural challenge to his jurisdiction claim should be overruled

because the state courts should have reconsidered the evidence demonstrating the

location of the alleged incidents.20 The Magistrate Judge’s Report and Recommendation

was filed on April 11, 2019.21 Petitioner filed an objection thereto on May 6, 2019.22

ANALYSIS

I. Standard of Review

In reviewing the magistrate judge’s Report and Recommendations, the Court must

conduct a de novo review of any of the magistrate judge’s conclusions to which a party has

specifically objected.23 As to the portions of the report that are not objected to, the Court

needs only review those portions to determine whether they are clearly erroneous or

contrary to law.24

Under the Anti-Terrorism and Effective Death Penalty Act of 1996 (“AEDPA”), a

threshold question is whether the petition is timely and whether petitioner’s claims were

adjudicated on the merits in state court, i.e., the petitioner must have exhausted state

court remedies and must not be in “procedural default” on a claim.25 With respect to

merits review of a petitioner’s claims, state court's purely factual determinations are

presumed to be correct and a federal court will give deference to the state court's decision

19 R. Doc. 10.

20 R. Doc. 11.

21 R. Doc. 12.

22 R. Doc. 13.

23 See 28 U.S.C. § 636(b)(1) (“[A] judge of the court shall make a de novo determination of those portions

of the report or specified proposed findings or recommendations to which an objection is made.”).

24 Id.

25 Nobles v. Johnson, 127 F.3d 409, 419-20 (5th Cir. 1997) (citing 28 U.S.C. § 2254(b), (c)).

unless it “was based on an unreasonable determination of the facts in light of the evidence

presented in the State court proceeding.”26

A federal court must defer to the decision of the state court on the merits of a pure

question of law or a mixed question of law and fact unless that decision “was contrary to,

or involved an unreasonable application of, clearly established Federal law, as determined

by the Supreme Court of the United States.”27 A state court's decision is contrary to clearly

established federal law if: “(1) the state court applies a rule that contradicts the governing

law announced in Supreme Court cases, or (2) the state court decides a case differently

than the Supreme Court did on a set of materially indistinguishable facts.”28 “‘[A] federal

habeas court may not issue the writ simply because that court concludes in its

independent judgment that the state-court decision applied [a Supreme Court case]

incorrectly.’”29 Instead, under the “unreasonable application” standard, “the only

question for a federal habeas court is whether the state court’s determination is

objectively unreasonable.”30 The burden is on the petitioner to show that the state court

applied the precedent to the facts of his case in an objectively unreasonable manner.31

II. Timeliness

The parties dispute the timeliness of Petitioner’s federal application for habeas

corpus relief.32 To determine when Petitioner’s federal habeas corpus petition was filed,

26 28 U.S.C. § 2254(d)(2)

27 Id. § 2254(d)(1).

28 Williams v. Taylor, 529 U.S. 362, 405–06 (2000).

29 Price v. Vincent, 538 U.S. 634, 641 (2003) (quoting Woodford v. Visciotti, 537 U.S. 19, 24-25 (2002))

(citations omitted; brackets in original)

30 Neal v. Puckett, 286 F.3d 230, 246 (5th Cir. 2002).

31 Price, 538 U.S. at 641 (quoting Woodford, 537 U.S. at 24-25); Wright v. Quarterman, 470 F.3d 581, 585

(5th Cir. 2006).

32 R. Docs. 1 and 10.

courts apply the mailbox rule.33,34 Under the mailbox rule, a petitioner’s federal petition

is filed when he places it in the prison mail system.35 In this case, Petitioner’s federal

petition was filed on October 23, 2018.

The AEDPA provides “[a] 1-year period of limitation shall apply to an application

for a writ of habeas corpus by a person in custody pursuant to the judgment of a State

court.”36 The limitation period generally runs from “the date on which the judgment

became final by the conclusion of direct review or the expiration of the time for seeking

such review.”37 “When a habeas petitioner has pursued relief on direct appeal through his

state's highest court, his conviction becomes final ninety days after the highest court's

judgment is entered, upon the expiration of time for filing an application for writ of

certiorari with the United States Supreme Court.”38 In this case, Petitioner’s conviction

became final ninety days after the Louisiana Supreme Court denied his writ application

on September 18, 2015, as Petitioner did not file a writ application with the United States

Supreme Court. Thus, Petitioner’s application became final on December 17, 2015,39 and

Petitioner had one year from that date, or until Monday, December 19, 2016,40 to file a

timely federal application for habeas corpus relief.

The one-year period of limitation is subject to tolling in certain instances. For

example, the AEDPA expressly allows the one-year limitations period to be interrupted in

33 Causey v. Cain, 450 F.3d 601, 604-05 (5th Cir. 2006).

34 The State failed to apply the mailbox rule as required under the AEDPA in calculating the timeliness of

Petitioner’s pleading.

35 See id. at 607.

36 28 U.S.C. § 2244(d)(1).

37 Id. § 2244(d)(1)(A); Duncan v. Walker, 533 U.S. 167, 176-80 (2001).

38 Butler v. Cain, 533 F.3d 314, 317 (5th Cir. 2008) (citing Roberts v. Cockrell, 319 F.3d 690, 693 (5th Cir.

2003)).

39 The State’s finality calculation on December 18, 2015, is incorrect. See R. Doc. No. 10 at 5.

40 The last day of the filing period was Saturday, December 17, 2016, which by law to fell on the next business

day, Monday, December 19, 2016. See La. Code Crim. P. art. 13; Fed. R. Civ. P. 6.

the following way: “[t]he time during which a properly filed application for State post-

conviction or other collateral review with respect to the pertinent judgment or claim is

pending shall not be counted toward any period of limitation under this subsection.”41 A

matter is “pending” for § 2244(d)(2) purposes “as long as the ordinary state collateral

review process is ‘in continuance.’”42 The timeliness consideration in Louisiana, for

purposes of the AEDPA, requires application of a prison mailbox rule to state pleadings

filed by a prisoner.43 In this case, the one-year limitations period was tolled when

Petitioner filed his state application for post-conviction relief on November 17, 2016.

Because Petitioner filed the state application 335 days after his conviction became final

on December 17, 2015, at that point 30 days remained on the AEDPA statute of

limitations. Petitioner’s state application remained pending through September 28, 2018,

when the Louisiana Supreme Court denied his writ application. The one-year AEDPA

statute of limitations began to run again the next day, September 29, 2018, and did so for

24 days, until October 23, 2018, when Petitioner filed his federal petition under the

applicable mailbox rule. At that time, six days of the one-year AEDPA period remained.

Therefore, Petitioner’s federal petition was timely filed. However, as explained further

below, two of Petitioner’s claims are in procedural default and the rest are meritless.

III. Procedural Default (Claim Nos. 2 and 3)

In his federal petition, Petitioner argues the state trial court did not have

jurisdiction to preside over his case and the sentence was excessive.44 The State appears

41 Id. § 2244(d)(2).

42 Carey v. Saffold, 536 U.S. 214, 219-20 (2002); Williams, 217 F.3d 303, 310 (5th Cir. 2000) (quoting

Bennett v. Artuz, 199 F.3d 116, 120 (2d Cir. 1999)) (finding that a matter is “pending” for Section 2244(d)(2)

purposes until further appellate review is unavailable under Louisiana’s procedures.); see also Melancon v.

Kaylo, 259 F.3d 401, 405 (5th Cir. 2001).

43 Causey, 450 F.3d at 604-05.

44 R. Doc. 1 at 14-20.

to argue Petitioner’s second and third claims are procedurally barred.45 Even if it were

unclear whether the State argues Petitioner’s second and third claims are procedurally

barred, pursuant to Fifth Circuit precedent46 the Magistrate Judge gave Petitioner express

notice in the Report and Recommendation that the Court is considering procedural

default:

[P]etitioner is hereby specifically instructed that this report and

recommendation is notice to him that this court is sua sponte raising

the issue of procedural default and that petitioner must submit any

evidence or argument concerning the default as part of any objections

he may file to this report.47

In his objection to the Report and Recommendation, Petitioner addresses the procedural

default issue, and argues his two claims are not procedurally barred.48

Generally, a federal court will not review a question of federal law decided by a

state court if the decision of that state court rests on a state ground that is both

independent of the federal claim and adequate to support that judgment.49 This

“independent and adequate state law” doctrine applies to both substantive and

procedural grounds and affects federal review of claims that are raised on either direct or

habeas review.50

Procedural default does not bar federal court review of a federal claim in a habeas

petition unless the last state court to render a judgment in the case has clearly and

45 The State asserts in its opposition that Petitioner’s excessive sentence and jurisdiction/venue claims were

dismissed because they were not properly presented to (or preserved for review in) the Louisiana First

Circuit on direct appeal. R. Doc. 10. Although the State’s opposition conflates the legal concepts of

exhaustion and procedural default, it is clear the State intended to assert a procedural bar defense to review

of the claims and has not expressly waived procedural default as to these two claims.

46 Fisher v. Texas, 169 F.3d 295, 301 (5th Cir. 1999); Magouirk v. Phillips, 144 F.3d 348, 358 (5th Cir. 1998).

47 R. Doc. 12 at 11 (emphasis in original).

48 R. Doc. 13 at 4-6.

49 Coleman v. Thompson, 501 U.S. 722, 731-32 (1991); Glover v. Cain, 128 F.3d 900, 902 (5th Cir. 1997);

Amos v. Scott, 61 F.3d 333, 338 & n.10 (5th Cir. 1995) (citing Harris v. Reed, 489 U.S. 255, 260, 262 (1989)).

50 Amos, 61 F.3d at 338.

expressly indicated that its judgment is independent of federal law and rests on a state

procedural bar.51 The procedural bar also prevails over any alternative discussion of the

merits of the claim by a state court.52

Where the last state court to render a judgment in the case is not reasoned, “the

federal court should ‘look through’ the unexplained decision to the last related state-court

decision that does provide a relevant rationale . . . then presume that the unexplained

decision adopted the same reasoning.”53 Accordingly, the Court looks to the opinion of

the Louisiana First Circuit on direct appeal, as this was the last reasoned decision on

Petitioner’s second and third claims. The Louisiana First Circuit declined to consider

these two claims because neither had been preserved for appeal. Specifically, the

Louisiana First Circuit held Petitioner was procedurally barred from challenging the

excessiveness of his sentence because he failed to file a motion to reconsider the sentence,

citing La. Code Crim. P. art. 881.1(E).54,55 The court similarly held the jurisdiction/venue

claim was waived and not preserved for appellate review, because venue had not been

challenged by motion to quash in the state trial court as required under La. Code Crim. P.

art. 615.56

In this case, the procedural rules cited by the Louisiana courts bar review of

51 Harris, 489 U.S. at 263; Glover, 128 F.3d at 902.

52 See Robinson v. Louisiana, 606 F. App’x 199, 203-04 (5th Cir. 2015) (citing Woodfox v. Cain, 609 F.3d

774, 796 (5th Cir. 2010)).

53 Wilson v. Sellers, 138 S. Ct. 1188, 1192 (2018).

54 State v. Odis, No. 2014-K-0534, 2014 WL 5801507, at *1 (La. App. 1st Cir. Nov. 7, 2014); St. Rec. Vol. 2

of 4, 1st Cir. Opinion, 2014-K-0534, 11/7/14.

55 Under Article 881.1(E), a motion to reconsider sentence is necessary to preserve an excessiveness claim

for review on direct appeal. La. Code Crim. P. art. 881.1(E) (“[f]ailure to make or file a motion to reconsider

sentence or to include a specific ground upon which a motion to reconsider sentence may be based,

including a claim of excessiveness, shall preclude the state or the defendant from raising an objection to the

sentence or from urging any ground not raised in the motion on appeal or review.”); State v. Adair, 875

So.2d 972, 974-975 (La. App. 5th Cir. 2004).

56 State v. Odis, No. 2014-K-0534, 2014 WL 5801507, at *1 (La. App. 1st Cir. Nov. 7, 2014); St. Rec. Vol. 2

of 4, 1st Cir. Opinion, 2014-K-0534, 11/7/14.

Petitioner’s federal habeas claims.

A. Independent and Adequate

A procedural restriction is “independent” if the state court’s judgment “clearly and

expressly” indicates that it is independent of federal law and rests solely on a state procedural

bar.57 The Fifth Circuit has held that “[a] state court expressly and unambiguously bases its

denial of relief on a state procedural default even if it alternatively reaches the merits of a

[petitioner’s] claim.”58

To be “adequate,” the state procedural rule must be strictly or regularly followed and

evenhandedly applied to the majority of similar cases.59 A state procedural rule “can be firmly

established and regularly followed—even if the appropriate exercise of discretion may permit

consideration of a federal claim in some cases but not others.”60 The question of the adequacy

of a state procedural bar is “itself a question of federal law.”61

The Louisiana courts relied on La. Code Crim. P. art. 881.1(E) to bar review of

Petitioner’s excessive sentence claim, because the claim was not first asserted in a motion to

reconsider the sentence. The state courts relied on La. Code Crim. P. art. 615 to bar review of

the jurisdiction/venue claim because Petitioner failed to challenge venue by pretrial motion

to quash in the state trial court. The Court agrees with the Magistrate Judge’s determination

that “[b]oth articles are independent of federal law to prevent review of claims available to a

defendant but inexcusably not asserted to the state trial court before the direct appeal.”62

Federal courts have repeatedly held that La. Code Crim. P. art. 881.1(E) and related

state case law are regularly and evenhandedly applied by the Louisiana courts and therefore

57 Amos, 61 F.3d at 338.

58 Fisher, 169 F.3d at 300.

59 Walker v. Martin, 562 U.S. 307, 316-17 (2011); Glover, 128 F.3d at 902.

60 Beard v. Kindler, 558 U.S. 53, 60-61 (2009) (internal quotation marks and citation omitted).

61 Id. at 60 (citing Lee v. Kemna, 534 U.S. 362, 375 (2002)).

62 R. Doc. 12 at 14.

adequate to bar federal review of Petitioner’s excessive sentence claim.63 The Magistrate

Judge stated his “research indicates that the Louisiana courts also regularly and

evenhandedly apply La. Code Crim. P. art. 615 to bar review of venue challenges not preserved

for appeal by filing a pretrial motion to quash.”64 The Court agrees with the Magistrate

Judge’s finding, and accordingly holds failure to comply with the procedural mandate

imposed under La. Code Crim. P. art. 615 by filing a pretrial motion to quash is adequate to

bar review of Petitioner’s jurisdiction/venue claim in this federal habeas court.65

Because the state courts’ rulings were based on Louisiana law establishing procedural

requirements for the presentation of claims for review,66 the state courts’ reasons for

dismissal of Petitioner’s claims were therefore independent of federal law and adequate to bar

review of his claims in this federal habeas court.

B. Cause and Prejudice

A federal habeas petitioner may be excepted from the procedural default rule only if

he can show “cause” for his default and “prejudice” attributed it to or demonstrate that the

federal court’s failure to review the defaulted claim will result in a “fundamental miscarriage

of justice.”67 “Cause” under the cause and prejudice test “must be something external to the

63 Robinson v. Cain, No. 15-1551, 2016 WL 6902114, at *7 (E.D. La. Oct. 25, 2016), report adopted by, 2016

WL 6892870, at *1 (E.D. La. Nov. 23, 2016); Young v. Travis, No. 07-3542, 2011 WL 494811, at *7 (E.D.

La. Jan. 13, 2011), report adopted by, 2011 WL494802, at *1 (E.D. La. Feb. 4, 2011); Semien v. Warden,

No. 08-162, 2009 WL 1393316, at *7 (W.D. La. May 12, 2009) (judgment adopting report and

recommendation).

64 R. Doc. 12 at 14 (citing State v. Clark, 851 So.2d 1055, 1080 (La. 2003); State v. Ford, 232 So.3d 576, 584

(La. App. 1st Cir. 2017); State v. Thompson, 111 So.3d 580, 583 (La. App. 3d Cir. 2013); State v. Terry, 108

So.3d 126, 144 (La. App. 2d Cir. 2012); State v. Spiehler, No. 2012-KA-129, 2012 WL 4335872, at *5 (La.

App. 1st Cir. Sep. 21, 2012); State v. Malbrough, 94 So.3d 933, 941 (La. App. 3d Cir. 2012))).

65 See also, McQueen v. Tanner, No. 10-3649, 2011 WL 692033, at *8 (E.D. La. Feb. 3, 2011), report and

recommendation adopted by, 2011 WL 690532, at *1 (E.D. La. Feb. 18, 2011) (discussing the waiver of

venue under La. Code Crim. P. art. 611 & 615); Thompson v. Vannoy, No. 17-873, 2018 WL 3404179, at *5

(W.D. La. Jun. 7, 2018), report and recommendation adopted by, 2018 WL 3383627, at *1 (W.D. La. Jul.

11, 2018) (same).

66 See Fisher, 169 F.3d at 300 (state courts’ clear reliance on state procedural rule is determinative of the

issue).

67 Id. at 301 (citing Magouirk, 144 F.3d at 359); Coleman, 501 U.S. at 748-50; Amos, 61 F.3d at 338-39

(citing Harris, 489 U.S. at 262; Engle v. Isaac, 456 U.S. 107, 129 (1982)).

petitioner, something that cannot fairly be attributed to him.”68 “[T]he mere fact that counsel

failed to recognize the factual or legal basis for a claim, or failed to raise the claim despite

recognizing it, does not constitute cause for a procedural default.”69 Petitioner has not offered

any cause for his default, in his objection to the Report in Recommendation or elsewhere, and

the Court agrees with the Magistrate Judge’s finding that “[t]he record does not support a

finding that any factor external to the defense prevented petitioner from asserting these

claims in a procedurally proper manner.”70 Because “[t]he failure to show ‘cause’ is fatal to

the invocation of the ‘cause and prejudice’ exception, without regard to whether ‘prejudice’ is

shown,”71 the Court need not determine whether prejudice existed.72 In any event, Petitioner

has not alleged any actual prejudice.

C. Fundamental Miscarriage of Justice

To establish a fundamental miscarriage of justice, petitioner must provide this court

with evidence that would support a “colorable showing of factual innocence.”73 To satisfy the

factual innocence standard, a petitioner must establish a fair probability that, considering all

of the evidence now available, the trier of fact would have entertained a reasonable doubt as

to the defendant’s guilt.74 When the petitioner has not adequately asserted his actual

innocence, his procedural default cannot be excused under the “fundamental miscarriage of

justice” exception.75 Petitioner has not offered any actual innocence argument, in his

objection to the Report and Recommendation or elsewhere, and the Court agrees with the

68 Coleman, 501 U.S. at 753 (citing Murray v. Carrier, 106 S. Ct. 2639, 2645 (1986)) (emphasis in original).

69 Murray, 106 S. Ct. at 2644.

70 R. Doc. 12 at 16.

71 Hogue v. Johnson, 131 F.3d 466, 497 (5th Cir. 1997) (citing Engle, 456 U.S. at 134 n.43).

72 Ratcliff v. Estelle, 597 F.2d 474, 477 (5th Cir. 1979) (citing Lumpkin v. Ricketts, 551 F.2d 680, 681-82

(5th Cir. 1977))

73 Kuhlmann v. Wilson, 477 U.S. 436, 454 (1986); accord Murray, 477 U.S. at 496; Glover, 128 F.3d at 902.

74 Campos v. Johnson, 958 F. Supp. 1180, 1195 (W.D. Tex. 1997) (footnote omitted); see Nobles, 127 F.3d at

423 n.33 (actual innocence factor requires a showing by clear and convincing evidence that, “but for

constitutional error, no reasonable factfinder would have found the applicant guilty of the underlying

offense.”).

75 Glover, 128 F.3d at 903.

Magistrate Judge’s finding that “the record contains nothing establishing his actual innocence

on the underlying conviction.”76

Accordingly, Petitioner has failed to overcome the procedural bar to review of his

excessive sentence and jurisdiction/venue claims in this federal court and these claims must

be dismissed with prejudice as procedurally defaulted.

IV. Sufficient Evidence (Claim Nos. 1 and 4)

The court’s consideration of the sufficiency of the evidence extends only to what was

presented to the factfinder at trial.77 Review of the sufficiency of the evidence, however, does

not include review of the (1) weight of the evidence or (2) the credibility of the witnesses,

because those determinations are the exclusive province of the jury.78 All credibility choices

and conflicting inferences must be resolved in favor of the verdict.79 A federal habeas court is

not authorized to substitute its interpretation of the evidence or its view of the credibility of

witnesses in place of the fact finder.80 A claim of insufficient evidence presents a mixed

question of law and fact.81 Accordingly, the Court must examine whether the state courts’

denial of relief was contrary to or an unreasonable application of United States Supreme

Court precedent.82

Petitioner argues the evidence was insufficient to prove the sexual batteries occurred

because the victim was not credible and her testimony was not corroborated by other

evidence.83 Petitioner further argues the jury should not have believed or found credible the

76 R. Doc. 12 at 17.

77 McDaniel v. Brown, 558 U.S. 120, 131, 134 (2010).

78 United States v. Young, 107 F. App’x 442, 443 (5th Cir. 2004) (citing United States v. Garcia, 995 F.2d

556, 561 (5th Cir. 1993)).

79 Ramirez v. Dretke, 398 F.3d 691, 695 (5th Cir. 2005).

80 Weeks v. Scott, 55 F.3d 1059, 1062 (5th Cir. 1995).

81 Perez, 529 F.3d at 594; Maes v. Thomas, 46 F.3d 979, 988 (10th Cir. 1995).

82 Miller v. Johnson, 200 F.3d 274, 281 (5th Cir. 2000).

83 R. Doc. 1-1 at 5.

vague and non-specific testimony of the victim, A.D., in reaching the guilty verdict.84

Petitioner repeats these arguments in his objection to the Report and Recommendation.85

The Louisiana First Circuit considered Petitioner’s insufficient evidence claim on

direct appeal. Applying the standards set forth in Jackson and related state case law, the court

held that the victim’s testimony was sufficient to establish that the sexual batteries occurred.86

This was the last reasoned opinion on the claim.87 Petitioner asserted this claim again on state

court post-conviction review, questioning the state courts’ application of Jackson. The state

courts declined to review the claim as repetitive under La. Code Crim. P. art. 930.4(A).88 This

article precludes Louisiana courts from review of a post-conviction claim already “fully

litigated” on direct appeal.89,90 A federal habeas court simply “look[s]-through” the ruling on

collateral review and considers the findings and reasons in the direct appeal where the claims

were first litigated.91

The state courts relied on Jackson to deny Petitioner’s sufficiency of the evidence

claims. Under Jackson, a federal habeas court addressing a sufficiency of the evidence claim

must determine, after viewing the evidence in the light most favorable to the prosecution,

whether a rational trier of fact could have found that the essential elements of the crime were

proven beyond a reasonable doubt.92 “The Jackson inquiry ‘does not focus on whether the

trier of fact made the correct guilt or innocence determination, but rather whether it made a

84 Id. at 15.

85 R. Doc. 13 at 2-4.

86 State v. Odis, No. 2014-K-0534, 2014 WL 5801507, at *1 (La. App. 1st Cir. Nov. 7, 2014); St. Rec. Vol. 2

of 4, 1st Cir. Opinion, 2014-K-0534, 11/7/14.

87 Wilson, 138 S. Ct. at 1192.

88 State ex rel. Odis v. State, 253 So.3d 138 (La. 2018); St. Rec. Vol. 3 of 4, La. S. Ct. Order, 2017-KH-0857,

9/28/18; La. S. Ct. Letter, 2017-KH-851, 5/25/17 (showing postal mailing 4/12/17).

89 Bennett v. Whitley, 41 F.3d 1581 (5th Cir. 1994).

90 The Court notes the procedural bar under Article 930.4(A) is not the kind of procedural bar that would

prevent this federal habeas court from reviewing the claim.

91 Bennett, 41 F.3d at 1583.

92 Jackson, 443 U.S. at 319; Williams v. Cain, 408 F. App’x 817, 821 (5th Cir. 2011); Perez v. Cain, 529 F.3d

588, 594 (5th Cir. 2008).

rational decision to convict or acquit.’”93 To determine whether the commission of a crime is

adequately supported by the record, the court must review the substantive elements of the

crime as defined by state law.94

At the time of the offense that is the subject of this case, sexual battery was defined by

La. Rev. Stat. § 14:43.1(A) in relevant part:

[T]he intentional engaging in any of the following acts with another person where the

offender acts without the consent of the victim, or where the act is consensual but the

other person, who is not the spouse of the offender, has not yet attained fifteen years

of age and is at least three years younger than the offender:

(1) The touching of the anus or genitals of the victim by the offender using any

instrumentality or any part of the body of the offender; or

(2) The touching of the anus or genitals of the offender by the victim using any

instrumentality or any part of the body of the victim.95

Under § 14:43.1(C)(2), the law also provided special penalty provisions for “[w]hoever

commits the crime of sexual battery on a victim under the age of thirteen years when the

offender is seventeen years of age or older.”96 Further, Louisiana law provides the credible

“testimony of the victim alone is sufficient to prove the elements of the offense.”97

For the sake of clarity, the Court briefly reviews the evidence presented to the jury at

trial:

 Petitioner conceded, and the evidence established, he was over 17 years old when the

incidents occurred98;

 Detective Sean Scott testified A.D. was under 13 years old when the sexual incidents

began at her home99;

93 Santellan v. Cockrell, 271 F.3d 190, 193 (5th Cir. 2001) (quoting Herrera v. Collins, 506 U.S. 390, 402

(1993)).

94 Perez, 529 F.3d at 594 (citing Jackson, 443 U.S. at 324 n.16).

95 La. Rev. Stat. § 14:43.1(A) (effective Aug. 15, 2008 to Aug. 14, 2011).

96 Id. § 14:43.1(C)(2).

97 State v. Hampton, 716 So.2d 417, 418-21 (La. App. 1st Cir. 1998).

98 Rec. Doc. No. 1-1, p.11; St. Rec. Vol. 2 of 4, Trial Transcript, p. 39 (Detective Sean Scott), 10/23/13.

99 St. Rec. Vol. 2 of 4, Trial Transcript, pp. 38, 44-45 (Detective Sean Scott), pp. 67-68 (A.D.), 10/23/13.

 A video recording of A.D.’s interview at the Child Advocacy Center (“CAC”) was

shown. During this interview, A.D. explained Petitioner touched her vagina several

times while she was 12 years old100;

 A.D. testified at trial that while she was 12 years old, Petitioner touched her vagina

with his hands101 and that about one year before she disclosed the abuse, Petitioner

would at times stand in the bathroom to watch her shower102;

 A.D. testified that shortly before she finally told her mother, Petitioner fondled her

vagina through her swimsuit when she passed him in the swimming pool, told her

brothers to leave the pool but prevented her from leaving so he could continue to

fondle her vagina over her swimsuit, and continued to fondle her for about 10 minutes

until her brothers returned to the pool area.103

Petitioner argues A.D.’s inability to remember the dates and times of the sexual

batteries rendered her testimony unreliable for the jury to have found that the batteries

actually occurred, rendering the jury’s verdict unreasonable and the state courts’ upholding

of the verdict contrary to Jackson.104 However, because the Jackson inquiry focuses on

whether the jury made a rational decision to convict or acquit,105 a conviction may

constitutionally rest on sufficient evidence “even though the facts also support one or more

reasonable hypotheses consistent with the defendant’s claim of innocence.”106

The record in this case supports the jury’s credibility determination as to A.D.’s

testimony. As the Magistrate Judge stated, A.D. “never varied in her accusations and

descriptions of the abuse, despite her history of childish lies about other unrelated and

100 St. Rec. Vol. 2 of 4, Trial Transcript, p. 59 (video shown), p. 101 (A.D.), 10/23/13. According to the

Louisiana First Circuit, the video also included A.D.’s statement that Petitioner would have her put his penis

back into his pants.

101 Id. at pp. 67-68 (A.D.).

102 Id. at p. 79 (A.D.).

103 Id. at pp. 96-97 (A.D.).

104 In his objection to the Report and Recommendation, Petitioner argues the alleged incident in the pool

occurred when A.D. was 13. Even if this were true, it does not establish (1) no sexual battery occurred or (2)

the other incidents did not occur prior to A.D. turning 13 years old. Further, such does not per se render

A.D.’s testimony unreliable such that the jury could not have found the batteries occurred, such that the

jury’s verdict would be rendered unreasonable and the state court’s upholding of the verdict contrary to

Jackson.

105 Herrera, 506 U.S. at 402.

106 Gibson v. Collins, 947 F.2d 780, 783 (5th Cir. 1991).

insignificant matters.”107 Additionally, the jury heard testimony Petitioner previously was

convicted of sexual battery of a juvenile under 13 by touching her vaginal area.108 The record

supports the jury’s credibility determination of A.D.’s testimony even though jurors heard

testimony there were no physical or medical findings or eyewitness testimony corroborating

the abuse alleged by A.D.109 and that A.D. was disappointed Petitioner excluded her from

things he did with her sister and that she did not like him living with her mother.110 “[A]

federal habeas corpus court faced with a record of historical facts that supports conflicting

inferences must presume - even if it does not affirmatively appear in the record - that the trier

of fact resolved any such conflicts in favor of the prosecution, and must defer to that

resolution.”111

As the Magistrate Judge found, “[t]he jury’s decision to credit the child-victim and its

finding that the elements of sexual battery were proven were well-within reason.”112 Under

state law, A.D.’s testimony was sufficient to prove Petitioner intentionally touched her vagina

without her consent and had her touch his penis before A.D. reached the age of 13.113 It was

therefore well within the realm of reasonable for the state courts to uphold the verdict under

the Jackson standards. Because Petitioner has not shown the state courts’ denial of relief was

contrary to or an unreasonable application of Jackson, he is not entitled to relief on this claim.

V. Effective Assistance of Counsel (Claim Nos. 5 and 6)

In Strickland v. Washington, the Supreme Court established a two-pronged test

for evaluating claims of ineffective assistance of counsel. Specifically, a petitioner seeking

107 R. Doc. 12 at 26.

108 State Record Volume 2 of 4, Trial Transcript, pp. 137-38, October 23, 2013 (Testimony of Probation

Specialist John Barbera).

109 Id. at pp. 42-43 (Detective Scott); pp. 133 (Dr. Owen Grossman).

110 Id. at pp. 78-79 (A.D.).

111 Jackson, 443 U.S. at 326.

112 R. Doc. 12 at

113 Hampton, 716 So.2d at 418-21.

relief must demonstrate both: (1) counsel's performance was deficient and (2) the

deficient performance prejudiced his defense.114 A petitioner bears the burden of proof on

such a claim and “must demonstrate, by a preponderance of the evidence, that his counsel

was ineffective.”115 “[A] court must indulge a strong presumption that counsel's conduct

falls within the wide range of reasonable professional assistance; that is, the defendant

must overcome the presumption that, under the circumstances, the challenged action

“might be considered sound trial strategy.”116

To prevail on the deficiency prong of the Strickland test, a petitioner must

demonstrate that counsel's conduct fails to meet the constitutional minimum guaranteed

by the Sixth Amendment.117 “Counsel's performance is deficient if it falls below an

objective standard of reasonableness.”118 Analysis of counsel's performance must

consider the reasonableness of counsel's actions in light of all the circumstances.119 “[I]t

is necessary to ‘judge . . . counsel's challenged conduct on the facts of the particular case,

viewed as of the time of counsel's conduct.’”120 A petitioner must overcome a strong

presumption that the conduct of his counsel falls within a wide range of reasonable

representation.121

To prevail on the prejudice prong of the Strickland test, a petitioner “must show

that there is a reasonable probability that, but for counsel's unprofessional errors, the

114 Strickland v. Washington, 466 U.S. 668, 697 (1984).

115 Jernigan v. Collins, 980 F.2d 292, 296 (5th Cir. 1993); see also Clark v. Johnson, 227 F.3d 273, 284 (5th

Cir. 2000).

116 Strickland, 466 U.S. at 689.

117 See Styron v. Johnson, 262 F.3d 438, 450 (5th Cir. 2001).

118 Little v. Johnson, 162 F.3d 855, 860 (5th Cir. 1998).

119 See Strickland, 466 U.S. at 689.

120 Lockhart v. Fretwell, 506 U.S. 364, 371 (1993) (quoting Strickland, 466 U.S. at 690).

121 See Crockett v. McCotter, 796 F.2d 787, 791 (5th Cir. 1986); Mattheson v. King, 751 F.2d 1432, 1441 (5th

Cir. 1985).

result of the proceeding would have been different.”122 In this context, a reasonable

probability is “a probability sufficient to undermine confidence in the outcome.”123 In

making a determination as to whether prejudice occurred, courts must review the record

to determine “the relative role that the alleged trial errors played in the total context of

[the] trial.”124 If a court finds that a petitioner has made an insufficient showing as to

either of the two prongs of inquiry, i.e., deficient performance or actual prejudice, it may

dispose of the ineffective assistance claim without addressing the other prong.125

The Supreme Court has clarified that, in applying Strickland on habeas review,

“[t]he question is whether an attorney’s representation amounted to incompetence under

‘prevailing professional norms,’ not whether it deviated from best practices or most

common custom.”126 Accordingly, a high level of deference is owed to a state court’s

findings under Strickland in light of AEDPA standards of review: “[t]he standards created

by Strickland and §2254(d) are both highly deferential, and when the two apply in

tandem, review is doubly so.”127 Because scrutiny of counsel’s performance under §

2254(d) is “doubly deferential,”128 federal courts must take a “highly deferential” look at

counsel’s performance under the Strickland standard through the “deferential lens of §

2254(d).”129

The Strickland standard for judging performance of counsel also applies to claims of

ineffective appellate counsel.130 To prevail on a claim that appellate counsel was

122 Strickland, 466 U.S. at 694.

123 Id.

124 Crockett, 796 F.2d at 793.

125 Strickland, 466 U.S. at 697.

126 Harrington v. Richter, 562 U.S. 86, 103 (2011).

127 Id. at 105 (internal quotations marks and citations omitted).

128 Cullen v. Pinholster, 563 U.S. 170, 190 (2011) (quoting Knowles v. Mirzayance, 556 U.S. 111, 112 (2009)).

129 Id. (citing Strickland, 466 U.S. at 689, and quoting Knowles, 556 U.S. at 121 n.2).

130 Smith v. Robbins, 528 U.S. 259, 285 (2000); Goodwin v. Johnson, 132 F.3d 162, 170 (5th Cir. 1997).

constitutionally ineffective, a petitioner must show his appellate counsel unreasonably failed

to discover and assert a non-frivolous issue and establish a reasonable probability he would

have prevailed on this issue on appeal but for his counsel’s deficient representation.131

Effective appellate counsel are not required to assert every non-frivolous available ground for

appeal132; instead, effective appellate counsel may legitimately select from among them in the

exercise of professional judgment to maximize the likelihood of success on appeal.133

Appellate counsel has discretion to exclude even a non-frivolous issue if said issue was

unlikely to prevail.134

Petitioner argues he received ineffective assistance of counsel for two reasons. First,

because his trial and appellate counsel failed properly to argue insufficiency of the evidence

under Jackson.135 Specifically, he argues counsel should have argued in the motion for post-

verdict judgment of acquittal and on direct appeal that the jury’s credibility determination

was unsupported due to the unreliable testimony of the victim and lack of corroborating

evidence.136 Second, because his trial counsel failed to impeach A.D. at trial and failed to

request a limiting instruction for the jury to disregard A.D.’s false testimony.137

On post-conviction review, the state courts denied relief on Petitioner’s claims, finding

Petitioner failed to prove his claim under the Strickland standards. The issue of ineffective

assistance of counsel is a mixed question of law and fact.138 Accordingly, under the AEDPA

131 Briseno v. Cockrell, 274 F.3d 204, 207 (5th Cir. 2001); Smith, 528 U.S. at 285-86.

132 Green v. Johnson, 160 F.3d 1029, 1043 (5th Cir. 1998) (citing Evitts v. Lucey, 469 U.S. 387, 394 (1985)).

133 Jones v. Barnes, 463 U.S. 745, 751-52 (1983).

134 See Anderson v. Quarterman, 204 F. App’x 402, 410 (5th Cir. 2006) (“The issues that Anderson argues

his counsel should have raised on direct appeal . . . lack merit. As such, failure to raise these issues did not

prejudice Anderson.”); Penson v. Ohio, 488 U.S. 75, 83-84 (1988) (noting that courts have refused to find

counsel ineffective when the proposed appellate issues are meritless); Kossie v. Thaler, 423 F. App’x 434,

437 (5th Cir. 2011) (recognizing the Supreme Court’s basic rule that the presumption that appellate counsel

was effective will be overcome only when the unasserted claims are stronger than those that were in fact

raised).

135 R. Doc. 1-1 at 25.

136 Id. at 26-29.

137 Id. at 29-32.

138 Strickland, 466 U.S. at 698; Clark v. Thaler, 673 F.3d 410, 416 (5th Cir. 2012); Woodfox, 609 F.3d at

the Court must determine whether the state courts’ denial of relief was contrary to or an

unreasonable application of Supreme Court precedent.

A. Jackson Issue

As discussed above, Jackson is the appropriate Supreme Court precedent by which

sufficiency of evidence must be considered. Under Jackson, “[a]lone, [a petitioner’s]

challenge of the jury's credibility choice fails to satisfy the Jackson standard for habeas

relief.”139 Petitioner’s counsel consequently had no legal grounds to base a motion for post-

verdict judgment of acquittal or the direct appeal on a challenge to the credibility

determinations made by the jury. “An attorney's failure to raise a meritless argument thus

cannot form the basis of a successful ineffective assistance of counsel claim because the result

of the proceeding would not have been different had the attorney raised the issue.”140

Accordingly, Petitioner has failed to establish his trial and appellate counsel were

ineffective in not basing the insufficient evidence claim on a challenge to the credibility

determinations made by the jury. Likewise, he has not established the state courts’ denial of

relief was contrary to or an unreasonable application of Strickland. Petitioner is not entitled

to relief on this claim.

B. Impeachment of the Victim

Petitioner argues his trial counsel provided ineffective assistance because counsel

failed to impeach A.D. or request that the jury be instructed to ignore A.D.’s unreliable

testimony. “The decision whether to cross-examine a witness, and if so, how vigorously to

789.

139 McCowin v. Scott, No. 93-5340, 1994 WL 242581, at *2 (5th Cir. May 26, 1994); see also Schlup v. Delo,

513 U.S. 298, 330 (1995) (“[U]nder Jackson, the assessment of the credibility of witnesses is generally

beyond the scope of review.”); Ramirez, 398 F.3d at 695 (“All credibility choices and conflicting inferences

are to be resolved in favor of the verdict.”); United States v. Loe, 262 F.3d 427, 432 (5th Cir. 2001) (the jury

“retains the sole authority to weigh any conflicting evidence and to evaluate the credibility of the

witnesses.”).

140 United States v. Kimler, 167 F.3d 889, 893 (5th Cir. 1999) (citing Williams v. Collins, 16 F.3d 626, 634–

35 (5th Cir.1994); United States v. Victoria, 876 F.2d 1009, 1012 (1st Cir. 1989)).

challenge the witness’[s] testimony, requires a quintessential exercise of professional

judgment.”141 The Court does not assess whether counsel’s trial strategy was successful, but

rather whether a particular act or omission of counsel was unreasonable under the

circumstances of the case.142

As the Magistrate Judge found, “[t]he trial transcript reflects that Odis’s counsel

aggressively cross-examined A.D. in an effort to discredit her testimony and depict her as a

liar who simply wanted Odis out of her home.”143 Petitioner’s counsel questioned A.D. about

the following:

 A.D.’s inability to remember when the incidents occurred, the time of day they

occurred, or how long Petitioner lived with her mother144;

 A.D.’s prior lies to her mother and sister and her jealousy over Petitioner’s time

and money spent on her sister145; and

 A.D.’s dislike of Petitioner living with her mother and desire to have Petitioner out

of the house by all means.146

The record thus demonstrates Petitioner’s counsel zealously challenged A.D.’s credibility. The

fact that the jury chose to credit the testimony of A.D. did not render counsel’s performance

ineffective.147

Similarly, Petitioner’s counsel was not ineffective in making the decision to not request

a limiting instruction on the weight to be given to A.D.’s testimony. The state trial court

instructed the jury on the following:

 The jury’s duty to “determine the weight and credibility of the evidence”148;

 The jury’s role as “the sole judges of the credibility of the witnesses and of the

141 Ford v. Cockrell, 315 F. Supp.2d 831, 859 (W.D. Tex. 2004), aff’d, 135 F. App’x 769 (5th Cir. 2005).

142 Strickland, 466 U.S. at 689.

143 R. Doc. 12 at 34.

144 St. Rec. Vol. 2 of 4, Trial Transcript, pp. 70-71, 72 (A.D.), 10/23/13.

145 Id. at pp. 77-80, 82-83, 94-95.

146 Id. at pp. 78-79; pp. 94-95.

147 See Martinez v. Dretke, 99 F. App’x 538, 543 (5th Cir. 2004) ( “[An] unsuccessful strategy does not

necessarily indicate constitutionally deficient counsel.”).

148 St. Rec. Vol. 2 of 3, Trial Transcript, p. 57, 10/24/13.

weight their testimony deserves” 149;

« The jury’s ability to consider a witness’s “ability and opportunity to observe and

remember the matter about which he or she testified, . . . and the extent to which

the testimony is supported or contradicted by other evidence”5°;

« “The testimony of the witness may be discredited by showing that the witness will

benefit in some way by the defendant’s conviction or acquittal, that the witness is

prejudiced, or that the witness has any other reason or motive for not telling the

truth,”

The state trial court therefore made clear to the jury it was within its discretion to

evaluate the weight and veracity of the witness testimony. Petitioner indicates no other legally

sound instruction his counsel should have requested. Petitioner therefore has failed to

establish he received ineffective assistance of counsel, and the state courts’ denial of relief on

this issue was not contrary to or an unreasonable application of Strickland. Accordingly,

Petitioner is not entitled to relief on this claim.

The Court, having considered the record, the applicable law, relevant filings, and the

magistrate judge’s Report and Recommendation finds the magistrate judge’s findings of fact

and conclusions of law are correct and hereby approves the United States Magistrate Judge’s

Report and Recommendation and ADOPTS it as its opinion in this matter.152

CONCLUSION

IT IS ORDERED that Petitioner Christopher Odis’s petition for issuance of a writ

of habeas corpus under 28 U.S.C. § 2254 be and hereby is DISMISSED WITH

PREJUDICE.

New Orleans, Louisiana, this 10th day of December, 2019.

SUSIE song

UNITED STATES DISTRICT JUDGE

149 Td.

150 Td,

151 Td, at 60.

152 R. Doc. 12.

23