Neal v. Cain

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF LOUISIANA

JARRELL NEAL CIVIL ACTION

VERSUS CASE NO. 15-5390

DARREL VANNOY, WARDEN SECTION: “G”(3)

ORDER

In this litigation, Petitioner Jarrell Neal (“Petitioner”), a state prisoner incarcerated in the

Louisiana State Penitentiary in Angola, Louisiana, seeks habeas corpus relief pursuant to 28 U.S.C.

§ 2254 from his conviction for two counts of first-degree murder and the sentence of death on each

count.1 This Court ordered an evidentiary hearing on certain claims raised by Petitioner.2 Before the

Court is Petitioner’s “Motion for Leave of Court to Depose the Respondent’s Witnesses.”3

Respondent Darrel Vannoy (“Respondent”) opposes the motion.4 Having considered the motion, the

memoranda in support and in opposition, the record, and the applicable law, the Court denies the

motion.

I. Background

On May 21, 1998, Petitioner was charged by Indictment with two counts of first degree murder

in Jefferson Parish, Louisiana.5 Petitioner was indicted with his older half-brother, Zannie Neal, and

1 Rec. Doc. 4.

2 See Rec. Docs. 66, 120, 138, 139.

3 Rec. Doc. 146.

4 Rec. Doc. 147.

5 State v. Neal, 2000-674 (La. 6/29/01); 796 So.2d 649, 653.

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their uncle, Arthur Darby (“Darby”). “After Darby turned state’s witness and the court severed the

brothers’ cases,” Petitioner was tried by a jury in the Twenty Fourth Judicial District Court.7 On

February 27, 1999, Petitioner was convicted of two counts of first degree murder, and on June 4,

1999, he was sentenced to death.8 On June 29, 2001, the Louisiana Supreme Court affirmed

Petitioner’s conviction and sentence.9 Petitioner filed a petition for writ of certiorari before the United

States Supreme Court, which was denied on March 18, 2002.10 On May 13, 2002, Petitioner’s request

for rehearing was also denied by the United States Supreme Court.11

On May 23, 2002, Petitioner filed a pro se application for post-conviction relief with the state

trial court, which was dismissed by the trial court.12 On October 3, 2003, the Louisiana Supreme

Court vacated the trial court’s order.13 The Louisiana Supreme Court found that Petitioner was

entitled to post-conviction counsel, and directed the trial court to give Petitioner’s counsel the

reasonable opportunity to prepare and litigate expeditiously an application for post-conviction relief.14

On September 23, 2011, post-conviction counsel supplemented the post-conviction relief

application before the state trial court.15 On October 9, 2013, the state trial court dismissed

6 Id. at 652.

7 Id.

8 Id.; Rec. Doc. 4 at 4.

9 Neal, 796 So.2d at 653.

10 Neal v. Louisiana, 535 U.S. 940 (2002).

11 Neal v. Louisiana, 535 U.S. 1075 (2002).

12 Rec. Doc. 12 at 1.

13 State ex rel. Neal v. Cain, 2002-2258 (La. 10/3/03); 871 So.2d 1071.

14 Id.

15 Rec. Doc. 12 at 1.

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Petitioner’s claims. On April 17, 2015, the Louisiana Supreme Court denied Petitioner’s related

writ application.17 Petitioner filed a petition for writ of certiorari before the United States Supreme

Court, which was denied on January 11, 2016.18

Petitioner filed this federal habeas petition on February 10, 2016.19 Petitioner raises twenty-

one grounds for relief: (1) Petitioner’s due process rights were violated by the State’s suppression of

material favorable evidence and impeachment information under Brady v. Maryland; (2) the State

violated Napue v. Illinois by failing to correct false and misleading testimony of state witnesses; (3)

trial counsel was ineffective for failing to object to the prosecution’s repeated statements to the jury

that Arthur Darby’s testimony was “the truth;” (4) trial counsel performed ineffectively by failing to

impeach Arthur Darby with available impeachment evidence; (5) trial counsel was ineffective for

failing to challenge the State’s forensic evidence; (6) prosecutorial misconduct violated Petitioner’s

right to a fair trial; (7) Petitioner’s due process rights were violated by the State’s improper

introduction of other crimes evidence; (8) the State struck multiple qualified African-American jurors

under the guise of discriminatory pretext in violation of the Equal Protection Clause; (9) extrajudicial

information violated Petitioner’s right to a fair trial and to confront the witnesses against him due to

counsel’s ineffective assistance at voir dire; (10) the trial court impermissibly granted multiple

challenges for cause, ensuring that the jury was unconstitutionally biased toward imposing the death

penalty; (11) trial counsel was ineffective for failing to investigate and prepare for the guilt phase of

16 Id. at 1–2.

17 State v. Neal, 14-KP-0259 (La. 4-17-15), 168 So.3d 391,

18 Neal v. Louisiana, 136 S.Ct. 793 (2016).

19 Rec. Doc. 4.

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trial; (12) Petitioner’s right to confrontation was violated by the admission of hearsay evidence at his

trial, and trial counsel was ineffective for failing to challenge the hearsay evidence; (13) trial counsel

was ineffective for failing to investigate and present powerful and readily-available mitigation

evidence; (14) Petitioner’s Eighth and Fourteenth amendment rights were violated when the jury was

impermissibly told and instructed multiple times that their verdict was not the final determination of

Petitioner’s sentence; (15) Petitioner’s conviction, obtained through improper jury instructions, is a

violation of due process and trial counsel was ineffective for failing to object to the jury instruction;

(16) Petitioner’s death sentence rests on insufficient evidence of the aggravating circumstances; (17)

trial counsel was ineffective for failing to challenge and explain the State’s evidence of Petitioner’s

prior criminal history; (18) Petitioner’s execution would violate the Eighth Amendment to the United

States Constitution; (19) Petitioner’s execution is constitutionally excessive; (20) cumulative error

caused by ineffective assistance of counsel requires reversal; and (21) cumulative error caused by the

State’s withholding of favorable material evidence requires reversal.20 Respondent filed a response

to the habeas corpus petition on July 15, 2016.21

On November 18, 2016, Petitioner filed a motion requesting leave to file an amendment to the

petition for writ of habeas corpus to add a claim that both his trial and post-conviction counsel were

ineffective for failing to investigate a key witness, Emmett Taylor (“Taylor”), who could have

testified that Arthur Darby admitted that his testimony was not the truth.22 Respondent opposed the

20 Id.

21 Rec. Doc. 12.

22 Rec. Doc. 27.

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motion. On May 2, 2017, the Court granted the motion to amend. On July 1, 2017, Respondent

filed a response to the amended petition.25

On January 12, 2017, Petitioner filed a “Motion for Evidentiary Hearing.”26 Petitioner noticed

the motion for submission on June 7, 2017.27 On April 19, 2017, Respondent filed an opposition to

the motion.28 On July 19, 2017, with leave of Court, Petitioner filed a reply brief in further support

of the motion for an evidentiary hearing.29 On August 28, 2017, the Court granted Petitioner’s motion

to the extent it requested a hearing on Petitioner’s procedurally defaulted claims raised under Martinez

v. Ryan.30

On January 29, 2019, the Court called a status conference to discuss the status of the case.31

Considering Petitioner’s counsel’s representation that additional time was needed to investigate the

case, the Court issued an Order staying the case.32

On February 25, 2019, Petitioner filed a “Motion for Leave to File Amendment to Petition for

Habeas Corpus.”33 Petitioner sought leave of Court to amend the habeas petition to raise four

23 Rec. Doc. 45-1 at 1.

24 Rec. Doc. 53.

25 Rec. Doc. 60.

26 Rec. Doc. 35.

27 Rec. Doc. 35-2.

28 Rec. Doc. 51.

29 Rec. Doc. 61.

30 Rec. Doc. 66.

31 Rec. Doc. 90.

32 Rec. Doc. 93.

33 Rec. Doc. 94.

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additional claims because new DNA testing allegedly revealed that blood recovered from the left

Nike brand tennis shoe Arthur Darby was wearing on the night of the murders came from one of the

victims, Greg Vickers.34

In the proposed amendment, Petitioner noted that he received leave of Court to conduct DNA

testing of evidence retained by the Jefferson Parish Sheriff’s Office Crime Lab.35 Petitioner asserted

that his counsel has received preliminary findings showing that there is a reasonable likelihood that

the blood found on the left Nike brand tennis shoe Darby was wearing on the night of the murders

came from one of the victims, Greg Vickers.36 In light of this additional evidence, Petitioner sought

leave of Court to amend the habeas petition to raise the following claims: (23) Petitioner is actually

innocent of the murders of Gregory Vickers and Fergus Robinson; (24) both trial and post-conviction

counsel were ineffective for failing to conduct DNA testing on the thread created by the JPSO Crime

lab to preserve blood evidence recovered from Darby’s left shoe; (25) the cumulative effects of the

Brady evidence requires reversal; and (26) the cumulative error caused by ineffective assistance of

counsel requires reversal.37 Respondent opposed the motion.38 On April 29, 2019, the Court granted

the motion to amend.39 On July 1, 2019, Respondent filed a response to the amended petition.40

34 Rec. Doc. 94-4.

35 Rec. Doc. 94-4 at 1.

36 Id. at 2.

37 Id. at 7–12, 14.

38 Rec. Doc. 98.

39 Rec. Doc. 104.

40 Rec. Doc. 112.

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On August 13, 2019, the Court called a status conference to discuss the status of the case.

During the status conference, the Court set the evidentiary hearing for January 21, 2020.42 The Court

also ordered that the evidentiary hearing would include claims involving new evidence asserted in the

amended petition for habeas relief.43

On September 4, 2019, the Court granted a motion to substitute counsel filed by Respondent.44

On October 29, 2019, the Court called another status conference for the parties to provide the Court

with an update on the status of the case.45 At that time, counsel for Respondent indicated that

Respondent intended to file a motion to continue the evidentiary hearing.46 On December 23, 2019,

the Court granted a motion to continue filed by Respondent,47 and set the evidentiary hearing for

April 21, 2020.48 On April 14, 2020, the Court continued the evidentiary hearing, given the current

circumstances involving COVID-19.49

On March 5, 2020, Petitioner filed the instant Motion for Leave of Court to Depose the

Respondent’s Witnesses”50 On March 9, 2020, Respondent filed an opposition to the motion.51 On

41 Rec. Doc. 119.

42 Id.

43 Id.

44 Rec. Doc. 123.

45 Rec. Doc. 126.

46 Id.

47 Rec. Doc. 138.

48 Rec. Doc. 139.

49 Rec. Doc. 156.

50 Rec. Doc. 146.

51 Rec. Doc. 147.

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April 9, 2020, Petitioner with leave of Court, filed a reply brief in further support of the motion.

II. Parties’ Arguments

A. Petitioner’s Arguments in Support of the Motion to Take Depositions

Petitioner moves the Court, pursuant to Rules 6 and 11 of the Rules Governing Section 2254

Cases, 28 U.S.C. 2246 and Rules 26 and 30 of the Federal Rules of Civil Procedure, for leave to

depose Respondent’s witnesses prior to the scheduled evidentiary hearing.53 Although discovery is

ordinarily not allowed in habeas corpus cases, Petitioner notes that Rule 6(a) of the Rules Governing

Section 2254 Proceedings provides that a party may conduct discovery if the judge, in the exercise of

her discretion and for good cause shown, grants leave to do so.54

Petitioner notes that on July 1, 2019, Respondent filed an answer to the amended habeas

petition, wherein Respondent represented that he had requested additional DNA testing from the

Jefferson Parish Sheriff’s Office crime lab for blood located on the shoes Petitioner was wearing on

the night of the incident at question in these proceedings.55 Petitioner submits that this evidence is

not relevant for purposes of evaluating his claims for habeas relief because “a nondisclosure in a

particular case must be viewed in light of what evidence was adduced at trial.”56 Petitioner notes that

on July 8, 2019, Respondent filed a witness list identifying Pamela Williams, Elaine Schneida, Sarah

Serou, and Tim Scanlan from the JPSO Crime Lab as potential witnesses.57 Petitioner also notes that

52 Rec. Doc. 154.

53 Rec. Doc. 146 at 1.

54 Id. at 2.

55 Id. at 3 (citing Rec. Doc. 112 at 12).

56 Id. (citing Banks v. Thaler, 583 F.3d 295, 321 (5th Cir. 2009)).

57 Id. at 3–4 (citing Rec. Docs. 113, 125).

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Respondent listed Christian Silbernagel, Arthur Darby, and Karen Darby as witnesses. According

to Petitioner, on March 3, 2020, counsel for Respondent informed Petitioner’s counsel that

Respondent plans to file an updated witness list to include Detective Steve Buras, Detective Michael

Moscana, and Crime Scene Technician Richard Deauzat, the investigating officers in this case.59

Petitioner requests leave of Court to depose these witnesses.60 “Petitioner avers that by

deposing the Respondent’s witnesses, both parties will be better positioned to argue the relevance of

the Respondent’s newly developed evidence through pre-hearing motions in limine.”61 Furthermore,

Petitioner contends that allowing for depositions will benefit the parties because “the factual disputes

and issues may be more fully joined to present at an evidentiary hearing.”62

B. Respondent’s Arguments in Opposition to the Motion to Depose Witnesses

In opposition, Respondent contends that the motion to depose witnesses should be denied

because Petitioner has not established “good cause” to conduct such discovery, as required by Rule 6

of the Rules Governing Section 2254 Proceedings, and the request is unduly burdensome.63

Respondent argues that Petitioner’s “conclusory assertions do not even attempt to justify the

deposing of any particular witness, let alone all ten he has identified by name.”64 Furthermore, to the

extent Petitioner cites “pre-hearing motions in limine” as justification for granting discovery,

58 Id. at 4 (citing Rec. Docs. 113, 125).

59 Id.

60 Id.

61 Id.

62 Id.

63 Rec. Doc. 149 at 2.

64 Id. at 4.

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Respondent contends that such a justification is not warranted because this matter is set for an

evidentiary hearing, not a trial.65 Respondent asserts that “[a]ny issue regarding the relevancy of

evidence and its admissibility at the evidentiary hearing can and should be made at the evidentiary

hearing itself, where the Court will be in the best position to evaluate the issue in light of the overall

scope and context of the evidence adduced at the proceeding.”66 Therefore, Respondent asserts that

Petitioner has not demonstrated that good cause exists to conduct such discovery.67

Additionally, Respondent argues that the discovery requested should be denied pursuant to

Federal Rule of Civil Procedure 26(b)(2)(C)(i) because it would be unduly burdensome and

unreasonably cumulative.68 Respondent contends that Petitioner’s “unwarranted discovery request

would require the expenditure of time and resources to the detriment of preparations for and

presentation at the evidentiary hearing itself.”69 Respondent asserts that Petitioner already has the

benefit of the entire state court record, and Respondent has already voluntarily produced to Petitioner

the results of the recent DNA testing performed at the request of Respondent.70 Given this and in

light of the fact that the evidentiary hearing is scheduled to begin in one month, Respondent argues

that the requested discovery would be unreasonably burdensome, cumulative, and duplicative.71

Respondent avers that any supplemental information Petitioner believes he is entitled to may be

65 Id.

66 Id. at 4–5.

67 Id. at 5.

68 Id. at 6.

69 Id. at 7.

70 Id.

71 Id.

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elicited at the evidentiary hearing in a more convenient and less burdensome manner.

C. Petitioner’s Arguments in Further Support of the Motion to Take Depositions

In reply, Petitioner asserts that by granting the evidentiary hearing the Court found good cause

to develop the facts in support of Petitioner’s claims.73 Petitioner argues that deposing Respondent’s

witnesses will allow his counsel to prepare for a full and fair hearing, allow for a more efficient

hearing, and conserve the Court’s time.74

Petitioner states that he seeks leave of Court to conduct these depositions for two reasons: (1)

Respondent has provided very little in the form of discovery regarding the content of the evidence it

plans to present in rebuttal despite numerous inquiries from counsel and (2) Petitioner is seeking this

discovery because it will assist the Court by significantly streamlining the evidentiary hearing.75

According to Petitioner, “[i]n the past few months, the Respondent has performed an about-face in

its theories.”76 Petitioner notes that Respondent initially claimed that Arthur Darby’s presence at the

scene of the offense does not undermine confidence in the guilt-phase verdict because it indicates

only that Petitioner was a principal to his older brother and uncle’s commission of first degree

murder.77 Now, Petitioner contends “Respondent has apparently taken an entirely different position:

that the Jefferson Parish Sheriff’s Office bungled the chain of custody and evidence collection so

72 Id.

73 Rec. Doc. 154 at 2.

74 Id.

75 Id. at 3–5.

76 Id. at 3.

77 Id.

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badly that we cannot be sure who wore which clothing and shoes in evidence.” Furthermore,

Petitioner asserts that Respondent has not provided any information regarding the scope or proposed

content of some of their proposed witnesses’ testimony.79 Therefore, Petitioner argues that the

proposed discovery should be allowed in order to streamline the issues before the evidentiary

hearing.80

Petitioner states that he “seeks depositions to discover the particulars of the Respondent’s

rebuttal theory and, where necessary, argue via a pre-hearing written motion, that the new evidence,

which was never presented to a jury, the Respondent is seeking to present is irrelevant to the Court’s

Brady analysis on habeas review.”81 Finally, Petitioner argues that “these depositions cannot be

cumulative or duplicative, as [Petitioner] has no idea of the content of the testimony of many of the

Respondent’s witnesses,” and “[n]o discovery has been conducted to date as to these witnesses.”82

As to “burden” and cost, Petitioner asserts that these routine depositions would not expend

considerable resources, particularly when compared to a standard civil lawsuit.83

III. Legal Standard

“A habeas petitioner, unlike the usual civil litigant in federal court, is not entitled to discovery

as a matter of ordinary course.”84 Rule 6(a) of the Rules Governing Section 2254 Cases provides that

78 Id.

79 Id. at 4.

80 Id. at 5.

81 Id. at 6.

82 Id.

83 Id.

84 Bracy v. Gramley, 520 U.S. 899, 904 (1997).

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“[a] judge may, for good cause, authorize a party to conduct discovery under the Federal Rules of

Civil Procedure and may limit the extent of discovery.” “[F]ederal courts faced with habeas

petitioners' discovery requests have, in some circumstances, a duty ‘to provide the necessary facilities

and procedures for an adequate inquiry.”’85 “This is the case when ‘specific allegations before the

court show reason to believe that the petitioner may, if the facts are fully developed, be able to

demonstrate that he is . . . entitled to relief.’”86 This duty may be fulfilled by allowing the petitioner

to conduct discovery as authorized under the Federal Rules of Civil Procedure or through an

evidentiary hearing.87

IV. Analysis

On August 28, 2017, the Court granted Petitioner’s motion to the extent it requested a hearing

on Petitioner’s procedurally defaulted claims raised under Martinez v. Ryan.88 On August 13, 2019,

the Court ordered that the evidentiary hearing would include claims involving new evidence asserted

in the amended petition for habeas relief.89 The purpose of the evidentiary hearing is to develop the

record on these claims, which were not raised before the state courts, to ensure that there are

“sufficient facts before it to make an informed decision on” these claims.90

85 Murphy v. Davis, 901 F.3d 578, 590 (5th Cir. 2018) (quoting Gibbs v. Johnson, 154 F.3d 253, 258 (5th Cir.

1998)).

86 Id. (quoting Murphy v. Johnson, 205 F.3d 809, 814 (5th Cir. 2000)).

87 See id. See also Blackledge v. Allison, 431 U.S. 63, 81–82 (1977) (“[A]s is now expressly provided in the

Rules Governing Habeas Corpus Cases, the district judge (or a magistrate to whom the case may be referred) may employ

a variety of measures in an effort to avoid the need for an evidentiary hearing. Under Rule 6, a party may request and the

judge may direct that discovery take place, and ‘there may be instances in which discovery would be appropriate (before

an evidentiary hearing, and would show such a hearing) to be unnecessary. . . .”).

88 Rec. Doc. 66.

89 Rec. Doc. 119.

90 Murphy, 901 F.3d at 590 (quoting McDonald v. Johnson, 139 F.3d 1056, 1060 (5th Cir.1998)).

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Now, more than four years after this case was filed and after significant resources have been

expended in this case, Petitioner requests leave of Court to conduct extensive pre-hearing discovery.

Specifically, Petitioner requests that the Court allow Petitioner to depose all of Respondent’s

witnesses. Petitioner has been on notice regarding the identity of Respondent’s witnesses since July

2019.91 Petitioner has not identified any evidence that could be obtained from these witnesses during

depositions that could not be elicited during the evidentiary hearing. The purpose of the evidentiary

hearing is to develop the record. Therefore, Petitioner has not shown that good cause exists to depose

all of Respondent’s witnesses in advance of the evidentiary hearing.

Nevertheless, the Court is cognizant of the importance of streamlining the issues for the

evidentiary hearing and avoiding surprise or prejudice to either party. The discovery rules “are

designed to narrow and clarify the issues and to give the parties mutual knowledge of all relevant

facts, thereby preventing surprise.”92 To facilitate this objective and to help streamline the issues

before the evidentiary hearing, the Court will issue a subsequent Order requiring the parties to confer

and file a joint pre-hearing statement. This will ensure that the evidentiary hearing runs smoothly by

providing notice to both parties of the expected evidence and testimony.

Accordingly,

91 See Rec. Doc. 113. Updated on October 25, 2019. Rec. Doc. 125. To the extent Respondent has identified

additional witnesses not listed in the witness lists provided to the Court, Respondent must request leave of Court to update

the witness list and provide sufficient justification as to why these witnesses were not identified in the court-ordered

witness lists.

92 Shelak v. White Motor Co., 581 F.2d 1155, 1159 (5th Cir. 1978) (citing Hickman v. Taylor, 329 U.S. 495,

(1947)).

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IT IS HEREBY ORDERED that Petitioner’s “Motion for Leave of Court to Depose the

Respondent’s Witnesses”*? is DENIED.

NEW ORLEANS, LOUISIANA, this 20th day of April, 2020.

NANNETTE J C ETTE BROWN

CHIEF JUDGE

UNITED STATES DISTRICT COURT

°3 Rec. Doc. 146.

15