Miller v. Hooper

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF LOUISIANA

COREY MILLER CIVIL ACTION

VERSUS NO. 21-1413

TIMOTHY HOOPER, WARDEN SECTION “R” (4)

ORDER AND REASONS

Petitioner Corey Miller filed this federal petition for habeas corpus

relief under 28 U.S.C. § 2254.1 Miller’s petition was referred to Magistrate

Judge Karen Wells Roby for a Report and Recommendation (“R&R”).

Magistrate Judge Roby recommended that the petition be denied and

dismissed with prejudice as meritless.2 Miller filed objections to Magistrate

Judge Roby’s R&R.3

The Court has reviewed de novo the petition, the record, the applicable

law, the Magistrate Judge’s R&R, and Miller’s objections. For the following

reasons, the Court overrules the objections, and dismisses the petition.4

1 R. Doc. 1.

2 R. Doc. 24.

3 R. Doc. 25.

4 The Court reaches its decision without the need for oral argument, as

requested by Miller. R. Doc. 26-1.

I. DISCUSSION

The Court applies de novo review to the parts of the R&R to which

petitioner objected. 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b)(3). The

Court is limited to plain-error review of any part of the R&R not subject to a

proper objection. Starns v. Andrews, 524 F.3d 612, 617 (5th Cir. 2008).

Miller does not object to the Magistrate Judge’s finding that he cannot

demonstrate that the state courts’ rejection of his ineffective assistance of

counsel claim was contrary to or an unreasonable application of the standard

set forth in Strickland v. Washington, 466 U.S. 668 (1984), or any other

Supreme Court precedent.5 As to this finding, the Court finds no clear error.

The Court therefore adopts this section of the R&R as its opinion.

The Court considers and addresses each of Miller’s objections to the

R&R under a de novo standard below. See Hernandez v. Estelle, 711 F.2d

619, 620 (5th Cir. 1983) (holding that de novo determination requires “the

district court to arrive at its own, independent conclusion about those

portions of the magistrate’s report to which objection is made[, which] is not

satisfied by a mere review of the magistrate’s report itself”); United States v.

5 R. Doc. 25 at 18-19. While Miller does not object to the Magistrate

Judge’s findings regarding his ineffective assistance of counsel claim,

he asserts that he reserves the right to argue any excuse to procedural

issues based on this claim if and when it becomes relevant. Id. at 19.

Raddatz, 447 U.S. 667, 676 (1980) (holding that de novo determination

“permit[s] whatever reliance a district judge, in the exercise of sound judicial

discretion, [chooses] to place on a magistrate’s proposed findings and

recommendations”).

A. Actual Innocence

Miller’s first objection to the R&R is that his claim of actual innocence

is cognizable and provides a ground for relief.6 As an initial matter, the Court

finds that Magistrate Judge Roby correctly examined Miller’s actual

innocence claim de novo.7 Miller first raised an actual innocence claim in his

state application for post-conviction relief.8 The state trial court dismissed

this claim as procedurally barred because an actual innocence claim not

based on DNA evidence was not a cognizable ground for relief under

Louisiana Code of Criminal Procedure article 930.3.9 The Louisiana Fifth

Circuit affirmed the trial court’s procedural dismissal of the actual innocence

claim,10 and Miller filed a writ application with the Louisiana Supreme Court

6 Id. at 4.

7 R. Doc. 24 at 21-22.

8 St. Rec. Vol. 72 of 91, Initial Application for Post-Conviction Relief,

2/19/2014.

9 St. Rec. Vol. 86 of 91, Trial Court Order, 8/26/2015.

10 Id., Fifth Circuit Order, 15-KH-679, 12/29/2015.

on this claim.11 On October 28, 2016, the Louisiana Supreme Court declined

to consider the writ, finding that it was untimely filed. See generally State

v. Miller, 203 So. 3d 218 (La. 2016). The claim therefore was not exhausted

or adjudicated on the merits in the state court proceedings.

It is well settled that a petitioner must exhaust state court remedies

before seeking habeas corpus review in the federal courts. See Nobles v.

Johnson, 127 F.3d 409, 419-20 (5th Cir. 1997) (citing 28 U.S.C.

§ 2254(b), (c)). When, as here, the petitioner files a “mixed petition” with

both exhausted and unexhausted claims, the Court may elect to stay the

proceedings or dismiss the petition without prejudice to require complete

exhaustion. See Rhines v. Weber, 544 U.S. 269, 278 (2005); Pliler v. Ford,

542 U.S. 225, 227 (2004); Whitehead v. Johnson, 157 F.3d 384, 387 (5th Cir.

1998). Alternatively, the Court may deny an unexhausted or mixed petition

on the merits, notwithstanding the petitioner’s failure to exhaust the

remedies available in state court. 28 U.S.C. § 2254(b)(2). When reviewing

the merits of claims that were unexhausted or denied by state courts on

procedural grounds, the Court must review the claims de novo, rather than

under the Antiterrorism and Effective Death Penalty Act of 1996’s

11 St. Rec. Vol. 88 of 91, La. S. Ct. Writ Application, 2016-KP-0207,

1/29/2016.

(“AEDPA”) deferential standard of review. See Russell v. Denmark, 68 F.4th

252, 271 (5th Cir. 2023) (concluding that when a state court does not evaluate

a claim on the merits, “AEDPA’s usual deferential standard of review would

not apply; a reviewing federal court instead would ‘review such claims de

novo.’” (quoting Carty v. Thaler, 583 F.3d 244, 253 (5th Cir. 2009))); Miller

v. Johnson, 200 F.3d 274, 281 n.4 (5th Cir. 2000) (“Review is de novo when

there has been no clear adjudication on the merits.”); see also Berghuis v.

Thompkins, 560 U.S. 370, 390 (2010) (“Courts can . . . deny writs of habeas

corpus under § 2254 by engaging in de novo review when it is unclear

whether AEDPA deference applies, because a habeas petitioner will not be

entitled to a writ of habeas corpus if his or her claim is rejected on de novo

review, see § 2254(a).”). Here, Magistrate Judge Roby opted to address the

merits of Miller’s actual innocence claim under de novo review despite the

procedural shortcomings of his petition. This Court agrees, and likewise

proceeds de novo to the merits of this claim.

In doing so, the Court finds that Miller’s freestanding actual innocence

claim is not cognizable in a federal habeas petition. While the United States

Supreme Court “has not resolved whether a prisoner may be entitled to

habeas relief based on a freestanding actual-innocence claim,” McQuiggin v.

Perkins, 569 U.S. 383, 392 (2013) (citation omitted), the Fifth Circuit has

held that it “does not recognize freestanding claims of actual innocence on

federal habeas review.”12 In re Swearingen, 556 F.3d 344, 348 (5th Cir.

2009) (per curiam) (citation omitted), cited with approval in In re Fields,

No. 23-90016, 2023 WL 4044417, at *1 (5th Cir. June 16, 2023); see also

Graves v. Cockrell, 351 F.3d 143, 151 (5th Cir. 2003) (“The Fifth Circuit has

. . . held that claims of actual innocence are not cognizable on federal habeas

review.”). Absent Fifth Circuit or Supreme Court precedent to the contrary,

the Court finds that Miller’s actual innocence claim is meritless.

B. Recantation Affidavits

1. Background

In his last amended state court application for post-conviction relief,

Miller presented two recantation affidavits from Darnell Jordan (“Darnell”)

and Kenneth Jordan (“Kenneth”),13 respectively, in support of his claims

12 Although an actual innocence claim may serve as “a gateway through

which a habeas petitioner must pass to have his otherwise barred

constitutional claim considered on the merits,” Schlup v. Delo, 513 U.S.

298, 315 (1995), procedural default is not at issue here. Miller’s claim

and objections pertain only to the merits of his freestanding actual

innocence claim.

13 The Court will refer to Darnell and Kenneth by their first names

because of the shared last name.

under Brady and Napue.14 Darnell worked as a security employee at the club

where the shooting took place and was on duty on the night of the incident.

Several minutes after the shooting, Darnell told Detective Kevin Nichols of

the Jefferson Parish Sheriff’s Office (“JPSO”) that Miller was the shooter.

State v. Miller, 83 So. 3d 178, 183 (La. App. 5 Cir. 2011). Darnell explained

at trial that he knew and trusted Detective Nichols, who worked as a detail

officer for the club. Id. Later that same evening, Darnell provided additional

details to other investigators, but he did not name Miller as the shooter as he

had done with Detective Nichols. Id. Darnell would later testify that he

denied knowing who the shooter was because he feared retaliation. Id.

Following the shooting, Darnell allegedly received a phone call from one of

the club’s owners and was told something that caused him to be concerned

for his life and afraid of Miller. Id. Darnell then decided to meet with

investigators and provide a statement identifying Miller as the shooter. Id.

In an interview with Detective Donald Clogher on January 17, 2002, five days

after the murder, Darnell identified Miller from a photographic lineup as the

shooter.15 Darnell also testified at both of Miller’s trials that he was about

one yard away when he witnessed Miller reach his hand into a group of

14 See generally Brady v. Maryland, 373 U.S. 83 (1963); Napue v. People

of State of Ill., 360 U.S. 264 (1959).

15 St. Rec. Vol. 86 of 91, Darnell Jordan’s Statement, 1/17/2002.

people attacking the victim and saw what he assumed to be a gun flash from

the end of Miller’s arm. Id.

Kenneth likewise testified that he was at the club on the night of the

shooting, and that he observed Miller shoot the victim. Id. at 184. Kenneth

first identified Miller as the shooter in 2003 when he was interviewed as a

material witness regarding the death of his infant daughter. Id. At the time,

Kenneth told detectives that he wanted to tell the truth because he knew how

it felt to lose a child. Id. Kenneth then provided a statement to Detective

Clogher in which he said he saw Miller shoot the victim.16 Kenneth also

identified Miller in court and testified that he was positive that Miller shot

the victim. Id.

In 2018, almost nine years after Miller’s second trial,17 both men

submitted affidavits recanting their earlier testimony. Darnell asserted in

his affidavit that he was “certain that Corey Miller did not shoot [the

victim].”18 Darnell stated that he told detectives on the night of the murder

16 Id., Kenneth Jordan’s Statement, 1/27/2003.

17 The verdict in Miller’s first trial was overturned after the trial court

granted a motion for a new trial, which the Louisiana Supreme Court

affirmed. Miller’s second jury trial began on August 3, 2009, and the

jury found Miller guilty as charged on August 11, 2009. On August 14,

2009, Miller was sentenced to life imprisonment, without benefit of

parole, probation, or suspension of sentence.

18 St. Rec. Vol. 83 of 91, Darnell Jordan’s Affidavit, at 1, 6/28/2018.

that Miller was not the shooter.19 Darnell allegedly told the detectives that

he pulled Miller out of the fight and saw that Miller did not have anything in

his hands or in his waistband.20 He also alleged that he saw the flash from

the gun come from the other side of the group from where Miller stood.21 As

for his statement to Detective Clogher identifying Miller from a photographic

lineup as the shooter, Darnell claimed that he was “tricked” by the detective

because he believed that he had simply been asked to identify Miller, not the

shooter.22 Darnell also asserted that he had recanted his statement to

Detective Clogher before Miller’s first trial.23 Detective Clogher allegedly

visited Darnell in his hotel room before the trial and handed Darnell a copy

of his 2002 statement, at which point Darnell indicated that this was “not

what [he] said.”24 Furthermore, Darnell claimed that when he stated at trial

that he “was sure,” he intended to communicate that he was sure Miller was

not the shooter.25

19 Id. at 2.

20 Id. at 3.

21 Id.

22 Id.

23 Id. at 5.

24 Id.

25 Darnell stated in his affidavit: “When I said on the stand that ‘I was

sure[,]’ I meant I was sure [Miller] didn’t do it.” Id. at 5. The Court is

unable to locate any portion of Darnell’s testimony during Miller’s

second trial during which he stated that he “was sure.” His affidavit

may be referring to his affirmative answer when asked by the State

Similarly, Kenneth’s affidavit asserted that the man he saw shoot the

victim was not Miller.26 He alleged that he was coerced to falsely identify

Miller as the shooter in a “fabricated statement” following his “arrest” for the

murder of his daughter in 2003. According to Kenneth, JPSO officers offered

him leniency in his criminal case if he cooperated and gave a statement

identifying Miller.27 Kenneth alleged that he told the officers that “he saw

the shooter and the shooter was not Corey Miller,” but that “the officers

pressured [him] to lie and say it was Corey Miller, all the while holding

criminal charges over [his] head.”28 Kenneth further alleged that he later

told JPSO officers before Miller’s second trial that his 2003 statement

identifying Miller as the shooter was not true, but that “the officers forced

him to testify anyway.”29

Based on these affidavits, Miller urged the state court to find both

Brady and Napue violations.30 Miller contends that the State failed to

whether he was “absolutely sure that the flash that [he] saw from [the]

gun came from the end of [Miller’s] arm,” to which Darnell responded

“yes.” St. Rec. Vol. 14 of 91, Darnell Jordan’s Testimony, at 227,

8/5/2005.

26 St. Rec. Vol. 83 of 91, Kenneth Jordan’s Affidavit, 6/23/2018.

27 Id.

28 Id.

29 Id.

30 Id., Second Supplemental and Amended Memorandum in Support of

Initial Application for Post-Conviction Relief, 7/2/2018.

disclose that Darnell and Kenneth had retracted their statements and

testimony before his trial in violation of his rights under Brady v. Maryland,

373 U.S. 83 (1963). The Napue violations allegedly occurred when police

separately coerced Darnell and Kenneth into testifying falsely that Miller was

the shooter. See Napue v. People of State of Ill., 360 U.S. 264 (1959). In its

opposition, the State submitted the affidavits of four prosecutors who tried

Miller’s case and of Detective Clogher to rebut the recantation affidavits of

Darnell and Kenneth.31 The prosecutors each stated that at no time had they

been told by either Darnell or Kenneth that their statements were not true or

that they had ever recanted their testimony.32 The prosecutors also stated

that they had “never threatened, pressured or coerced any witnesses into

testifying.”33 The affidavit of Detective Clogher similarly denied the

allegations contained in Darnell’s and Kenneth’s recantation affidavits.34

Detective Clogher asserted that he “did not intimidate, coerce or otherwise

force Darnell to make any statement,” and that “Darnell never told him that

it was not Corey Miller who shot the victim” at the club.35 The detective

31 St. Rec. Vol. 86 of 91, at 601-05, Memorandum in Opposition,

9/21/2018.

32 Id. at 602-05.

33 Id.

34 Id. at 601.

35 Id.

further stated that, to the best of his knowledge, neither he nor anyone in the

JPSO office had offered Kenneth leniency to implicate Miller or put any

pressure on Kenneth to identify Miller as the shooter.36 In response, Miller

requested that the state trial court hold an evidentiary hearing to weigh the

credibility of the State’s affidavits.37

i. State trial court determinations

On January 23, 2019, the trial court found Miller’s claims based on the

recantation affidavits meritless.38 The court determined that Darnell’s and

Kenneth’s affidavits were “suspect and not reliable,” and did not give rise to

Brady or Napue violations. As to Darnell, the state trial court found several

inconsistencies between his recantation affidavit and trial testimony. For

instance, when asked at trial “who killed [the victim],” Darnell unequivocally

identified Miller.39 Darnell also maintained that he had no doubt that Miller

was the person who shot and killed the victim, and that the flash that he saw

36 Id.

37 St. Rec. Vol. 69 of 91, Rebuttal to State’s Opposition, 12/5/2018.

38 Id., Trial Court Order, 1/23/2019.

39 At Miller’s first trial, when asked by the State, “Who killed Steve

Thomas?,” Darnell responded: “Corey Miller.” St. Rec. Vol. 53 of 91,

Darnell Jordan’s Testimony, at 36, 9/18/2003. When asked the same

question at Miller’s second trial, Darnell responded: “C-Murder,”

identifying Miller by his rap moniker. St. Rec. Vol. 14 of 91, Darnell

Jordan’s Testimony, at 227, 8/5/2005.

from the gun came from Miller’s hand.40 At Miller’s second trial, Darnell

stated that he identified Miller from the photographic lineup in 2002

because “[h]e was the killer.”41 Darnell reiterated that he identified Miller as

the shooter in 2002 voluntarily, and that Detective Clogher did not force him

to identify Miller or in any way threaten him.42 Moreover, the state court

noted that Darnell testified consistently before the grand jury and at both

trials that Miller was the shooter.43 Darnell also testified at both trials that

on the night of the murder he immediately identified Miller as the gunman

to Detective Nichols,44 which Detective Nichols corroborated.45 As the trial

court recognized, Darnell’s admission to Detective Nichols occurred before

“having had any contact with any investigators and/or prosecutors,” and

thus contradicts Miller’s Napue claim that Darnell was coerced or “tricked

into testifying as he did.”46 And while Darnell denied to several other

40 St. Rec. Vol. 14 of 91, Darnell Jordan’s Testimony, at 227, 249,

8/5/2005; St. Rec. Vol. 13 of 91, Darnell Jordan’s Testimony, at 203,

8/5/2005; St. Rec. Vol. 53 of 91, Darnell Jordan’s Testimony, at 34-36,

9/18/2003.

41 St. Rec. Vol. 14 of 91, Darnell Jordan’s Testimony, at 220, 8/5/2005.

42 Id.

43 Id.

44 St. Rec. Vol. 53 of 91, Darnell Jordan’s Testimony, at 36-37,

9/18/2003; St. Rec. Vol. 13 of 91, Darnell Jordan’s Testimony, at 208,

8/5/2005.

45 St. Rec. Vol. 14 of 91, Darnell Jordan’s Testimony, at 260, 8/5/2005.

46 St. Rec. Vol. 69 of 91, Trial Court Order, 1/23/2019.

investigators that Miller was the shooter, the court recognized that Darnell’s

inconsistent statements were “presented to the jury” at trial and refuted by

Darnell’s testimony.47 Darnell specifically testified that he failed to identify

Miller as the shooter out of fear for retaliation from Miller “and his clique.”48

Darnell further stated that he was now testifying truthfully that Miller was

the shooter, and that he had not been forced, pressured, or coerced to testify

against Miller.49 Based on these inconsistencies and established testimony,

the court found no evidence of a Napue violation.

Additionally, the court rejected Miller’s assertion that the State

withheld Brady evidence that Darnell had recanted his statement to

Detective Clogher before Miller’s first trial when he allegedly denied having

said what was contained in his 2002 statement.50 The court determined that

“the record refute[d] this claim, as well as the affidavits of [Detective]

Clogher and the prosecutors.”51 Darnell consistently testified at both trials

that he was truthfully identifying Miller as the shooter,52 and he denied that

47 Id.

48 St. Rec. Vol. 14 of 91, Darnell Jordan’s Testimony, at 212, 8/5/2005.

49 Id. at 224, 247, 250.

50 St. Rec. Vol. 83 of 91, Darnell Jordan’s Affidavit, at 1, 6/28/2018

(stating that when Detective Clogher handed him a copy of his 2002

statement, he told the detective, “that’s not what I said.”).

51 St. Rec. Vol. 69 of 91, Trial Court Order, 1/23/2019.

52 See, e.g., St. Rec. Vol. 13 of 91, Darnell Jordan’s Testimony, at 203,

8/5/2005 (responding that he had “no doubt” when asked whether he

Detective Clogher had forced him to tell the jury that Miller was the shooter

during Miller’s first trial.53 Darnell also testified at Miller’s second trial about

what he told the detectives on January 17, 2022, including that he told them

that Miller murdered the victim.54 When asked about his statement

identifying Miller from the photographic lineup, Darnell testified that he

recognized the document and his signature on it, and that he had selected

Miller from the lineup because Miller was the person who shot the victim.55

Darnell never denied the content of or having made his 2002 statement

during either trial; rather, his testimony substantiated what he told

detectives on January 17. Based on this testimony in the record, along with

Detective Clogher’s affidavit denying that Darnell ever recanted his

statement before Miller’s trial, the state court found no evidence of a Brady

violation.56 The court therefore concluded that “[a]s to the recantation of

had “any doubt in [his] mind that” the flash from the gun came from

Miller’s hand and whether he had “any doubt in [his] mind that

[Miller] shot [the victim]”); St. Rec. Vol. 13 of 91, Darnell Jordan’s

Testimony, at 249, 8/5/2005 (responding that he had “no doubt” when

asked whether he had “[a]ny doubt in [his] mind that [Miller] was the

man that shot [the victim].”); St. Rec. Vol. 53 of 91, Darnell Jordan’s

Testimony, at 36, 9/18/2003 (identifying “Corey Miller” when asked

by the State, “Who killed Steve Thomas?”).

53 St. Rec. Vol. 53 of 91, Darnell Jordan’s Testimony, at 38, 9/18/2003.

54 St. Rec. Vol. 14 of 91, Darnell Jordan’s Testimony, at 218, 8/5/2005.

55 Id. at 219-20.

56 St. Rec. Vol. 86 of 91, at 601, Memorandum in Opposition, 9/21/2018.

Darnell Jordan, in considering all evidence including the record, all

transcribed trial and grand jury testimony and affidavits, [Miller] is not

entitled to relief.”57

As to Kenneth, the state court determined that his affidavit was

factually erroneous because he was never arrested or facing charges for his

daughter’s murder.58 This is substantiated by the record, including the

investigative report for the case involving the murder of Kenneth’s daughter,

which does not list Kenneth as one of the three individuals arrested in the

case.59 Moreover, Kenneth himself agreed during his 2003 interview with

Detective Clogher that he was making his statement after he “came to the

sheriff’s office voluntarily” as a cooperative witness in his daughter’s murder

case,60 and he testified at Miller’s trial that he had not been arrested in

connection with that case.61 Assistant District Attorney Tim McElroy, who

was involved in the case concerning the death of Kenneth’s daughter,

likewise testified that on the date that Kenneth gave his statement to

57 St. Rec. Vol. 69 of 91, Trial Court Order, 1/23/2019.

58 Id.

59 R. Doc. 1-3 at 44-58.

60 St. Rec. Vol. 86 of 91, Kenneth Jordan’s Statement, 1/27/2003

(emphasis added).

61 St. Rec. Vol. 15 of 91, Kenneth Jordan’s Testimony, at 181-82,

8/6/2009.

Detective Clogher in 2003, Kenneth was being “interviewed as a witness” in

his daughter’s case, and was not being treated as a suspect or under arrest.62

The court also found that McElroy’s trial testimony refuted Kenneth’s

allegation that JPSO officers offered him leniency in his daughter’s murder

case in exchange for implicating Miller as the shooter.63 McElroy testified at

Miller’s second trial that Kenneth had not received any deal from the sheriff’s

office, and that there was no reason for him to be offered a deal.64 He further

stated that in his review of the case involving Kenneth’s daughter, he found

no evidence of a deal made with Kenneth in exchange for Kenneth to testify

in Miller’s case.65 Indeed, the only offer of immunity made to Kenneth, which

was filed into the trial record, was offered by the State, not the sheriff’s

office,66 and related to his testimony in his daughter’s murder case, not

62 Id., Tim McElroy’s Testimony, at 49.

63 St. Rec. Vol. 69 of 91, Trial Court Order, 1/23/2019.

64 St. Rec. Vol. 15 of 91, Tim McElroy’s Testimony, at 47, 50, 8/7/2009.

65 Id. at 58. McElroy’s testimony directly refuted that of Kenneth, who

agreed when asked on cross-examination that he felt as though he had

to talk to detectives about the murder involving Miller if he did not

want to get charged with carnal knowledge of a juvenile. Id., Kenneth

Jordan’s Testimony, at 209-10.

66 Kenneth agreed during his trial testimony that it was not an officer who

offered him the deal of immunity, which further contradicts his

recantation affidavit’s claim that he was offered leniency by JPSO

officers. See id. at 193.

Miller’s case.67 Thus, the state court concluded that Kenneth’s “claim

regarding immunity was presented [to the jury] at trial and refuted by . . .

McElroy’s testimony.”68 This was further supported by the post-conviction

affidavit of Detective Clogher, who averred that neither he nor anyone in the

JPSO office had offered Kenneth leniency to implicate Miller or put any

pressure on Kenneth to identify Miller as the shooter in 2003.69 Moreover,

by the time Kenneth testified in 2009, he had no pending charges against

him or offers of immunity that could have induced him to testify against

67 Id., Tim McElroy’s Testimony, at 52-66. According to McElroy,

Kenneth had impregnated the mother of his child when she was a

minor and he was an adult, making him responsible for carnal

knowledge of a juvenile, which McElroy explained is a criminal offense

for “having sex with consent of the child.” Id. at 51. McElroy further

explained that because he found that Kenneth had committed the

crime of carnal knowledge, he could not call him to the stand to testify

in good faith, as this would expose Kenneth to possible criminal

charges. Id. Based on this criminal exposure, the state court

overseeing the infant murder case granted a motion to compel

Kenneth’s testimony in that case, in which Kenneth was given a grant

of immunity that promised that he would not be prosecuted for the

carnal knowledge charge. Id. at 52-54, 60-69. Kenneth also

acknowledged this immunity deal in his testimony when he agreed that

he was “offered immunity for the carnal knowledge for [his] testimony”

in the case of his daughter’s murder. Id., Kenneth Jordan’s Testimony,

at 189.

68 St. Rec. Vol. 69 of 91, Trial Court Order, 1/23/2019.

69 St. Rec. Vol. 86 of 91, at 601, Memorandum in Opposition, 9/21/2018.

Miller,70 and he stated that he had nothing to gain from his testimony.71

Accordingly, the trial court concluded that Miller’s claim that Kenneth “was

coerced into lying . . . [was] not even supported by Kenneth Jordan’s

affidavit” or the record, and was “purely speculative.”72

The trial court also rejected Miller’s Brady claim based on Kenneth’s

allegation that he told JPSO officers that his 2003 statement was false.73

First, the court found this allegation to be contrary to the record. Kenneth

testified at Miller’s second trial that his 2003 statement was the truth.

Kenneth also testified that he spoke with Greg Thurman from the sheriff’s

office before Miller’s trial, and that he told Thurman that he “would come

and testify and give [his] testimony and tell the truth.”74 He did not indicate

during his testimony that he attempted to recant his 2003 statement to

Thurman or anyone else in the sheriff’s office. Second, the court found the

allegation to be vague and conclusory because Kenneth did not indicate

whom he told or when the statement was made.75 After finding Kenneth’s

70 St. Rec. Vol. 15 of 91, Kenneth Jordan’s Testimony, at 220, 8/6/2009.

71 On re-direct by the State, Kenneth testified that he had nothing to gain

from his testimony and did not have any pending charges “over [his]

head” at the time of trial. Id.

72 St. Rec. Vol. 69 of 91, Trial Court Order, 1/23/2019.

73 Id.

74 St. Rec. Vol. 15 of 91, Kenneth Jordan’s Testimony, at 195, 8/6/2009.

75 St. Rec. Vol. 69 of 91, Trial Court Order, 1/23/2019.

recantation “completely unsupported and refuted by the record in this case

and by the witness’s testimony,” the trial court concluded that the claim

“must fail” when “viewed in light of the law’s disdain towards recantations.”76

The court reached these determinations without holding an evidentiary

hearing.

ii. Writ applications

Miller’s counsel then filed a writ application with the Louisiana Fifth

Circuit, asserting that the trial court erred in summarily denying his post-

conviction application and amended application and in denying his request

for an evidentiary hearing.77 The Louisiana Fifth Circuit determined that

Miller’s writ application was untimely filed, but it nevertheless addressed the

merits of Miller’s arguments, finding that the trial court did not abuse its

discretion in denying the claims without an evidentiary hearing.78

Specifically, the court determined that the trial court was able to resolve the

factual and legal issues presented by the recantation affidavits and determine

the merits of Miller’s claims without a hearing based on the “volume of

76 Id.

77 St. Rec. Vol. 85 of 91, Fifth Circuit Writ Application, 20-KH-322

(undated).

78 St. Rec. Vol. 84 of 91, Fifth Circuit Order, 20-KH-322, 12/11/2020.

existing information contained in the record from which the trial court could

draw upon.”79 The court further stated that the trial court did not err in its

conclusion that Miller failed to sufficiently prove his Brady and Napue

claims based on the recantation affidavits.80 The Louisiana Supreme Court

denied writ, finding that Miller failed to show that the State withheld

material exculpatory evidence under Brady. State ex rel. Miller v. State, 325

So. 3d 370 (La. 2021).

2. Lack of State Court Evidentiary Hearing

In his federal habeas petition, Miller again argues that the state trial

court erred in dismissing his claims without an evidentiary hearing.81 But

this contention is without merit as “[i]t is well-settled that ‘infirmities in state

habeas proceedings do not constitute grounds for federal habeas relief.’”

Henderson v. Cockrell, 333 F.3d 592, 606 (5th Cir. 2003) (quoting Duff-

Smith v. Collins, 973 F.2d 1175, 1182 (5th Cir. 1992)). The Fifth Circuit has

repeatedly held that a petitioner’s attack on a state habeas proceeding,

including the state courts’ failure to hold an evidentiary hearing, does not

impact the validity of the underlying state criminal conviction, which is the

79 Id.

80 Id.

81 R. Doc. 1-1 at 14, 16-17.

focus of federal habeas relief. See Trevino v. Johnson, 168 F.3d 173, 180 (5th

Cir. 1999); see also Rudd v. Johnson, 256 F.3d 317, 319-20 (5th Cir. 2001)

(“[A]n attack on the state habeas proceeding is an attack on a proceeding

collateral to the detention and not the detention itself.”); Tercero v.

Stephens, 738 F.3d 141, 147 (5th Cir. 2013) (holding that allegation that state

habeas court failed to hold an evidentiary hearing on petitioner’s Roper

claim did not furnish an independent basis for federal habeas corpus relief).

Thus, the state trial court’s denial of an evidentiary hearing on Miller’s Brady

and Napue claims is not a cognizable claim on federal review.

Moreover, although the state courts did not hold an evidentiary

hearing, the state trial court entered findings of fact, conclusions of law, and

a recommendation that habeas relief be denied.82 The trial court recognized

that it was able to resolve the “factual and legal issues” presented by the

recantation affidavits “without further proceedings” by drawing upon the

Miller’s “application and answer, and supporting documents” in the record.83

And based on those determinations, the Louisiana Fifth Circuit84 and

Louisiana Supreme Court denied Miller’s writ applications. See generally

State ex rel. Miller, 325 So. 3d 370 (La. 2021). This constitutes an

82 St. Rec. Vol. 69 of 91, Trial Court Order, 1/23/2019.

83 Id.

84 St. Rec. Vol. 84 of 91, Fifth Circuit Order, 20-KH-322, 12/11/2020.

adjudication on the merits and exhaustion of Miller’s Brady and Napue

claims, and thus the AEDPA’s standard of review applies. See Singleton v.

Johnson, 178 F.3d 381, 384 (5th Cir. 1999); Hill v. Johnson, 210 F.3d 481,

485 (5th Cir. 2000).

3. Deference under § 2254(e)(1)

AEDPA affords substantial deference to a state court’s resolution of

factual issues. See Brumfield v. Cain, 576 U.S. 305, 313 (2015); see also

Miller-El v. Cockrell, 537 U.S. 322, 340 (2003) (“A federal court’s collateral

review of a state-court decision must be consistent with the respect due state

courts in our federal system.”). Claims that present questions of fact are

reviewed under 28 U.S.C. §§ 2254(d)(2) and (e)(1). This involves a “two-step

approach,” in which “a federal court reviewing a case [first] applies

[§ 2254(e)(1)]’s rebuttable presumption of correctness to each disputed

factual determination by the state court.” Neal v. Vannoy, 78 F.4th 775, 783

(5th Cir. 2023). Under § 2254(e)(1), a federal habeas court must presume

the state court’s underlying factual determinations, including credibility

determinations, to be correct, unless the petitioner rebuts the presumption

of correctness by clear and convincing evidence. Miller-El, 537 U.S. at 340;

see also Hall v. Quarterman, 534 F.3d 365, 371 n.22 (5th Cir. 2008) (“State

credibility determinations also receive AEDPA deference on habeas review,

but not when overcome by clear and convincing evidence.”); Richards v.

Quarterman, 566 F.3d 553, 563 (5th Cir. 2009) (holding that state court

credibility determinations are entitled to presumption of correctness under

§ 2254(e)(1)). This presumption of correctness “is especially strong when, as

here, the state habeas court and the trial court are one and the same.”

Murphy v. Johnson, 205 F.3d 809, 813 (5th Cir. 2000). It extends not only

to express factual findings, but also to implicit or unarticulated findings that

are necessary to the state court’s conclusions of mixed law and fact. Murphy

v. Davis, 901 F.3d 578, 597 (5th Cir. 2018).

“Then, in reviewing the state court’s decision, the [federal habeas]

court considers the entire factual basis and utilizes the reasonableness

standard from [§ 2254(d)(2)] to assess, ultimately, whether the second

exception to AEDPA’s relitigation bar has been satisfied.” Neal, 78 F.4th at

783. Section 2254(d)(2) provides that “a decision adjudicated on the merits

in a state court and based on a factual determination will not be overturned

on factual grounds unless objectively unreasonable in light of the evidence

presented in the state-court proceeding.” Miller-El, 537 U.S. at 340; see also

Neal, 78 F.4th at 783 (“Ultimately, to clear the required threshold, the

petitioner must show ‘a reasonable factfinder must conclude’ the state

court’s determination of the facts was unreasonable.” (quoting Rice v.

Collins, 546 U.S. 333, 335 (2006))).

Here, Magistrate Judge Roby applied this deferential standard and

presumption of correctness to the state trial court’s factual determinations

concerning the recantation affidavits. Miller objects to the Magistrate

Judge’s application of the presumption of correctness to the state court’s

credibility findings under 28 U.S.C. § 2254(e)(1), arguing that because the

trial court did not hold an evidentiary hearing on his Brady and Napue

claims, it, in effect, did not make findings of fact concerning the recantation

affidavits.85

The Fifth Circuit has recognized that a state court’s reliance on a paper

record without live testimony does not preclude the application of AEDPA

deference and the presumption of correctness attached to its factual findings.

See, e.g., Morrow v. Dretke, 367 F.3d 309, 315 (5th Cir. 2004) (holding that

AEDPA requires courts “to presume correct the state court’s findings of fact

. . . even if the hearing was a ‘paper’ hearing and may not have been full and

fair,” unless petitioner rebuts presumption of correctness by clear and

convincing evidence (citation and internal quotation marks omitted));

Valdez v. Cockrell, 274 F.3d 941, 951 (5th Cir. 2001) (holding that

85 R. Doc. 25 at 8.

presumption of correctness and deferential standard of review apply to state

court’s findings of fact even when reached without “full and fair” evidentiary

hearing). And it is not the province of a federal court to reevaluate the

credibility of affidavits, even if the state court reached its credibility

determinations without a hearing. See Avila v. Quarterman, 560 F.3d 299,

307 (5th Cir. 2009) (holding that federal district court improperly re-

evaluated state court’s credibility determination based on an evaluation of

conflicting affidavits); Morales v. Thaler, 714 F.3d 295, 303 (5th Cir. 2013)

(“AEDPA does not allow federal habeas courts to gainsay state courts’

assessments of credibility on a cold paper record.”). Here, the state court

made findings of fact and determinations of credibility that the recantation

affidavits were “suspect and not reliable,” based on inconsistencies and

established falsities,86 and thus failed to support Miller’s Brady and Napue

claims.87 These determinations are entitled to a rebuttable presumption of

correctness under § 2254(e)(1), regardless of the state court’s decision not to

hold an evidentiary hearing. See Valdez, 274 F.3d at 951. The presumption

applies to all of the state court’s factual findings, including its credibility

determinations on Darnell’s and Kenneth’s affidavits.

86 See supra Section I.B.1.i.

87 St. Rec. Vol. 69 of 91, Trial Court Order, at 3, 1/23/2019.

Accordingly, this Court will apply the rebuttable presumption of

correctness under § 2254(e)(1) in evaluating the state trial court’s

determinations of the credibility of the recantation affidavits. Because this

Court is not entitled to supplant the factual determinations of the state court,

which were reached based on “the volume of existing information contained

in the record,”88 it will evaluate Miller’s claim without holding an evidentiary

hearing.89 See Avila, 560 F.3d at 307; Morales, 714 F.3d at 303; see also

Cullen v. Pinholster, 563 U.S. 170, 183 (2011) (“[W]hen the state-court

record ‘precludes habeas relief’ under the limitations of § 2254(d), a district

88 St. Rec. Vol. 84 of 91, Fifth Circuit Order, 20-KH-322, 12/11/2020.

89 A district court may hold an evidentiary hearing only when the

petitioner shows that either the claim relies on a new, retroactive rule

of constitutional law that was previously unavailable, 28 U.S.C.

§ 2254(e)(2)(A)(i), or the claim relies on a factual basis that could not

have been previously discovered by exercise of due diligence, id.

§ 2254(e)(2)(A)(ii); and that the facts underlying the claim show by

clear and convincing evidence that, but for the constitutional error, no

reasonable jury would have convicted the petitioner. Id.

§ 2254(e)(2)(B). Miller contends that the record reveals a genuine

dispute as to the alleged facts in the recantation affidavits, thus

warranting a federal evidentiary hearing to reach credibility

determinations not previously reached by the state trial court. As

discussed, the state court made credibility and factual determinations

based on the extensive record and adjudicated Miller’s Brady and

Napue claims on the merits despite not holding an evidentiary hearing;

thus, an evidentiary hearing will not aid this Court in its review. See

Sandoval Mendoza v. Lumpkin, 81 F.4th 461, 472 (5th Cir. 2023).

court is ‘not required to hold an evidentiary hearing.’” (quoting Schriro v.

Landrigan, 550 U.S. 465, 474 (2007))).

4. Miller’s Failure to Overcome Presumption

As noted, Miller must overcome the presumption of correctness

afforded under § 2254(e)(1) by clear and convincing evidence that the state

court’s factual findings, including its credibility determinations, were

incorrect. See Miller-El, 537 U.S. at 330-31. Miller attempts to do so by

objecting to the state trial court’s treatment of the recantation affidavits with

suspicion, arguing that this skepticism is an unreasonable and

fundamentally unfair approach to making factual determinations.90

Magistrate Judge Roby correctly noted that both federal and Louisiana

law recognize a long-standing view that “recantations are highly

suspicious.”91 Isaac v. Cain, 588 F. App’x 318, 326 (5th Cir. 2014) (citations

omitted); see also Spence v. Johnson, 80 F.3d 989, 1003 (5th Cir. 1996)

(“[R]ecanting affidavits and witnesses are viewed with extreme suspicion by

the courts.”); Neal, 78 F.4th at 788-89 (affirming Spence and noting that

“recantation is viewed with suspicion because it is tantamount to an

90 R. Doc. 25 at 10-11.

91 R. Doc. 24 at 64.

admission of perjury”); State v. Prudholm, 446 So. 2d 729, 736 (La. 1984)

(“[R]ecantations are highly suspicious and, except in rare circumstances, a

motion for new trial should not be grated on the basis of a recantation since

that disclaimer is tantamount to admission of perjury so as to discredit the

witness at a later trial.”). That the state trial court treated the affidavits with

suspicion, without more, does not amount to clear and convincing evidence

that the court’s findings were incorrect. This objection is therefore

overruled.

Further, Magistrate Judge Roby was correct in finding no clear and

convincing evidence that the state court’s discrediting of the affidavits as

unreliable was wrong on the facts or the law. The state trial court found

contradictions and falsities in both Darnell’s and Kenneth’s affidavits,92

which led the court to conclude that the affidavits were not credible and

unreliable to serve as proof that Brady and Napue violations occurred.93 For

example, the state trial court found Darnell’s affidavit not credible in light of

his consistent identification of Miller as the shooter, first when he

volunteered this information to Detective Nichols on the night of the murder,

and again before the grand jury and at both trials. As the trial court

92 See supra Section I.B.1.i.

93 St. Rec. Vol. 69 of 91, Trial Court Order, at 3, 1/23/2019.

recognized, Darnell’s statement to Detective Nichols, which Nichols

corroborated at trial, occurred before Darnell “had any contact with other

investigators and/or prosecutors,” and thus rebutted Miller’s “claim that

Darnell Jordan was tricked into testifying as he did.”94 The court also relied

on a number of inconsistencies between Darnell’s trial testimony and

recantation affidavit. For instance, while Darnell alleged in his affidavit that

he was tricked into identifying Miller as the killer from the photographic

lineup when he thought he was simply identifying Miller in a picture, the trial

court pointed out that he testified at trial that he “picked [Miller] from the

line-up and identified him as the shooter.”95 Indeed, when asked by the State

at Miller’s second trial why he had selected the photo of Miller from the

lineup, Darnell responded: “He was the killer.”96 Darnell also alleged in his

affidavit that the flash from the gun came from the other side of the pile

surrounding the victim, but at trial he testified that he saw the flash from the

gun come from Miller’s hand.97 And while Darnell alleged in his affidavit

94 Id.

95 Id.

96 St. Rec. Vol. 14 of 91, Darnell Jordan’s Testimony, at 220, 8/5/2005.

97 Id. at 227, 249; St. Rec. Vol. 13 of 91, Darnell Jordan’s Testimony, at

203, 8/5/2005; St. Rec. Vol. 53 of 91, Darnell Jordan’s Testimony, at

34-36, 9/18/2003.

that he meant to say at trial that he “was sure” Miller was not the shooter,98

this was refuted by his testimony at both trials during which he unequivocally

named Miller when asked who shot the victim.99 Further, the court found

Darnell’s claim that he had recanted his 2002 statement to Detective Clogher

before Miller’s trial to be refuted by Darnell’s trial testimony and Detective

Clogher’s post-conviction affidavit. Based on the inconsistencies between

Darnell’s affidavit and the record evidence, the court concluded that the

affidavit was not credible, and was “suspect and not reliable” as Brady or

Napue evidence.100

Moreover, the court found Kenneth’s affidavit not credible because it

contained established falsities and contradictions with his trial testimony

and 2003 statement. First, although Kenneth claimed to have been “arrested

for the murder of [his] infant daughter,”101 this was refuted by both Kenneth’s

98 Darnell stated: “When I said on the stand that ‘I was sure’ I meant I

was sure [Miller] didn’t do it.” St. Rec. Vol. 83 of 91, Darnell Jordan’s

Affidavit, 6/28/2018.

99 St. Rec. Vol. 53 of 91, Darnell Jordan’s Testimony, at 36, 9/18/2003;

St. Rec. Vol. 14 of 91, Darnell Jordan’s Testimony, at 227, 8/5/2005.

100 St. Rec. Vol. 69 of 91, Trial Court Order, 1/23/2019.

101 St. Rec. Vol. 83 of 91, Kenneth Jordan’s Affidavit, 6/23/2018.

and McElroy’s trial testimony,102 as well as other evidence in the record.103

Second, Kenneth claimed that JPSO officers offered him “leniency in [his]

criminal case if [he] agreed to cooperate and give [ ] a statement implicating

Corey Miller in the shooting.”104 This issue was raised during Miller’s second

trial and rebutted by McElroy’s testimony that no such offer had been

made.105 It was further rebutted by the post-conviction affidavit of Detective

Coghler, who stated that neither he nor “anyone in the Sheriff’s Office to his

knowledge offered [Kenneth] any kind of leniency to cooperate and give a

statement implicating” Miller.106 The court also found that the record, which

included Kenneth’s testimony that he had not been coerced or otherwise

induced to testify against Miller and that his 2003 statement was true, as well

as the post-conviction affidavits from Detective Clogher and the prosecutors,

made the claims in his recantation affidavit not credible. The court further

102 St. Rec. Vol. 15 of 91, Kenneth Jordan’s Testimony, at 181-82,

8/6/2009 (testifying that he was interviewed as a witness in his

daughter’s murder case and was not arrested on that charge); id., Tim

McElroy’s Testimony, at 49 (testifying that the JPSO “interviewed

[Kenneth] as a witness” in his daughter’s case, and Kenneth was not

being treated as a suspect or under arrest).

103 See, e.g., R. Doc. 1-3 at 44-58 (Investigative report of JPSO Criminal

Investigations Bureau Homicide Division).

104 St. Rec. Vol. 83 of 91, Kenneth Jordan’s Affidavit, 6/23/2018.

105 St. Rec. Vol. 15 of 91, Tim McElroy’s Testimony, at 47, 50, 58,

8/7/2009.

106 St. Rec. Vol. 86 of 91, Donald Clogher’s Affidavit, at 601, 9/19/2018.

determined that Kenneth’s allegation regarding his purported pre-trial

recantation to Detective Clogher to be both vague and conclusory because

Kenneth did not indicate whom he told or when the statement was made.107

These falsities, discrepancies, and conclusory allegations led the court to find

Kenneth’s recantation both suspect and unreliable.108 As the recantation

affidavits were the only proof offered in support of Miller’s Brady and Napue

violations, the court accordingly found that Miller had not proved his Brady

or Napue claims.

Now, in support of his federal habeas claim based on Brady and

Napue, Miller again has presented no other evidence beyond the two

recantation affidavits of Darnell and Kenneth, which he contends warrants a

reevaluation of the state courts’ credibility determinations. But the trial

court’s factual and credibility findings resolved that these affidavits were

suspect and not reliable and, thus, provided no basis to credit the

recantations, to establish that the affiants’ trial testimony was false, or to

establish impropriety by state officials in inducing their respective trial

testimony. And as previously discussed, it is not the province of this federal

habeas court to make credibility determinations when previously reached by

107 St. Rec. Vol. 69 of 91, Trial Court Order, 1/23/2019.

108 Id.

the state trial court. Rather, it is Miller’s burden to put forth clear and

convincing evidence of error in the state courts’ findings of fact, which he has

failed to do. Without meeting this high burden, the factual and credibility

determinations are entitled to the presumption of correctness under

§ 2254(e)(1) in assessing the reasonableness of the denial of relief on Miller’s

Brady and Napue claims. Accordingly, the Court finds that Miller’s

objection based on the state courts’ treatment of the recantation affidavits

with suspicion and the application of the AEDPA’s presumption of

correctness to the credibility determinations is without merit.

After finding the presumption of correctness applicable to the state

court’s factual and credibility determinations, the Magistrate Judge applied

AEDPA’s standard of review under § 2254(d)(1) to evaluate the merits of

Miller’s Brady and Napue claims. This standard requires the Court to decide

whether the state court’s Brady or Napue determination resulted in a

decision that is contrary to, or involved an unreasonable application of,

clearly established federal law. Miller-El, 537 U.S. at 340; Neal, 78 F.4th at

783. The Magistrate Judge concluded that it had not, and thus that the state

courts’ denial of relief was not unreasonable as neither claim was factually

supported.109 Miller did not object to this portion of the R&R. Having

109 See R. Doc. 24 at 66-71.

reviewed this portion of the R&R, the Court finds no clear error. The Court

therefore adopts this section of the R&R as its opinion. Miller is not entitled

to federal habeas relief on this claim.

5. Miller’s Suspension Clause Objection

Miller also argues, without citation to authority, that this federal

habeas court’s denial of an evidentiary hearing out of deference to the state

courts’ credibility determinations, made without an evidentiary hearing,

implicates the Suspension Clause, U.S. Const. art. I, § 9, cl. 2.110 At least one

federal court has considered, and rejected, the argument Miller seemingly

makes here. In Crater v. Galaza, 491 F.3d 1119 (9th Cir. 2007), the Ninth

Circuit addressed whether the deference due a state court under § 2254(d)(1)

constituted a suspension of the writ of habeas corpus. Noting that a

suspension of the writ occurs only when Congress “clearly and

unambiguously” removes all federal habeas corpus jurisdiction, the court

concluded that the plain text of the AEDPA “defeats any suggestion that

§ 2254(d)(1) eliminates habeas jurisdiction entirely.” Id. at 1124. The Ninth

Circuit further concluded that the deference afforded under § 2254(d)(1)

does not “constrain[] relief so dramatically that it effectively suspends the

110 R. Doc. 25 at 13.

writ;” rather, relief under § 2254(d)(1) “remains available, but is reserved for

cases where a state adjudication ‘resulted in a decision that was contrary to,

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

as determined by the Supreme Court of the United States.’” Id. at 1124-25;

see also Miller-El, 537 U.S. at 340 (holding that a habeas court’s deferential

standard of review “does not imply abandonment or abdication of judicial

review” or “by definition preclude relief”). This Court finds this authority

persuasive and concludes that Miller’s Suspension Clause argument is

without merit. Accordingly, no evidentiary hearing is warranted on his

Brady and Napue claims.

C. Juror Misconduct

Finally, Miller argues that he is entitled to relief or an evidentiary

hearing based on alleged juror misconduct. Miller contends that his Sixth

and Fourteenth Amendment rights were violated when at least one juror in

the majority of his ten-to-two verdict voted to convict because she wished to

end deliberations, not because she believed Miller was guilty.111

111 Id. at 14.

1. Background

On the second day of deliberations during Miller’s second trial, the jury

notified the trial judge that juror Geralneigh Bazile, a young African

American female,112 refused to participate or cooperate in deliberations.113

The judge then met with the jury, instructing them to evaluate their

convictions and informing them that each juror “must participate in the

[deliberation] process” and consider each other’s views.114 He also spoke

individually with Bazile, who indicated that she believed Miller was not guilty

and felt pressure from her fellow jurors to change her vote.115 The judge

informed Bazile that her vote mattered and that she did not have to change

her view, but she could change it if she believed her position was wrong.116

Less than two hours after the jury returned to deliberations, the judge

was advised that the jury had reached a verdict.117 The court was also advised

that Bazile did not want to leave the jury room and was throwing up.118 The

jury eventually appeared together and announced its ten-to-two verdict of

112 St. Rec. Vol. 17 of 91, Sentencing Transcript, at 10, 8/11/2009.

113 Id. at 2.

114 Id. at 5, 8.

115 Id. at 11-13.

116 Id. at 12-14.

117 Id. at 23.

118 Id.

guilty.119 During polling, it was determined that another juror, Edith M.

Jacob, qualified her guilty vote as being “under duress to get out of here.”120

The judge declared the verdict invalid and sent the jury back to deliberate,

reminding the jurors that they should not vote “for the mere purpose of

returning a verdict.”121 That same day, the jury returned with a second ten-

to-two verdict, which the court accepted. The ten votes to convict came from

one African American juror and nine white jurors, including Jacob,122 while

the two not guilty votes both came from African American jurors, including

Bazile.123 When polled, Jacob did not qualify her vote of guilty.

Days later, Jacob spoke with a reporter at the Times-Picayune, stating

that she “changed her vote to guilty to end deliberations to protect a young

juror who felt [Miller] was innocent but who crumbled under ‘brutal’

pressure from other jurors.”124 Jacob also signed an affidavit in which she

maintained that the other jurors were “very abusive” to Bazile, calling her

names and using racial slurs.125 Both the article and affidavit were stricken

119 Id.

120 Id. at 26.

121 Id. at 27-28.

122 Jacob is described in the state trial record as a “white lady” and “white

woman.” Id. at 29-30.

123 Id. at 15 (defense counsel providing statistics of the verdict vote).

124 R. Doc. 1-2 at 105.

125 R. Doc. 1-3 at 97.

and not considered by the state courts on direct appeal or post-conviction

review as they impermissibly comprised materials outside of the evidence

under Louisiana Code of Evidence article 606. Now, in this federal habeas

proceeding, Miller again relies on Jacob’s statements to claim that juror

intimidation and racial harassment improperly influenced the guilty verdict.

2. Merits of Jury Misconduct Claim

As an initial matter, the “abuse” described by Jacob and relied upon by

Miller constitutes “internal,” rather than “external,” influence during the

deliberation process.126 See United States v. Straach, 987 F.2d 232, 241 (5th

Cir. 1993) (distinguishing between external influences, such as newspapers

or statements by court personnel, and internal influences surrounding the

jury’s internal deliberations). Absent a showing of external influence, courts,

as a rule, may not inquire into the jury’s deliberative process based on

allegations of internal influence alone. See Greer v. Thaler, 380 F. App’x

373, 382 (5th Cir. 2010) (citing Tanner v. United States, 483 U.S. 107, 120-

21 (1987)). Nor may courts consider post-verdict affidavits or testimony

from a juror regarding the internal deliberation process and no such affidavit

126 R. Doc. 24 at 27-29.

or testimony can form the basis of a mistrial.127 See Straach, 987 F.2d at 241

(“[J]ury’s internal deliberations cannot result in a mistrial.”); Oliver v.

Quarterman, 541 F.3d 329, 336 (5th Cir. 2008) (“[I]nternal influences . . .

provide no basis for relief.”); see also United States v. Black, 843 F.2d 1456,

1464 n.7 (D.C. Cir. 1988) (“[A] juror’s affidavit is incompetent to impeach the

verdict for internal error; juror affidavits may only be used for the narrow

purpose of showing ‘extraneous influence,’ such as prejudicial publicity.”).

This bar against using juror testimony about internal processes to impeach a

verdict is known as the “no-impeachment rule.” See Pena-Rodriguez v.

Colorado, 580 U.S. 206, 211 (2017) (“A general rule has evolved to give

substantial protection to verdict finality and to assure jurors that, once their

verdict has been entered, it will not later be called into question based on the

comments or conclusions they expressed during deliberations. This

principle, itself centuries old, is often referred to as the no-impeachment

rule.”).

Miller contends that an exception to the no-impeachment rule should

be made under Pena-Rodriguez v. Colorado, 580 U.S. 206 (2017), because

the evidence shows that Jacob’s vote was motivated in part by racial

harassment directed at another juror. Miller’s reliance on this case is

127 Id. at 29.

misplaced. In Pena-Rodriguez, the Supreme Court examined “whether there

is an exception to the no-impeachment rule when, after the jury is

discharged, a juror comes forward with compelling evidence that another

juror made clear and explicit statements indicating that racial animus was a

significant motivating factor in his or her vote to convict.” Id. at 211. There,

one juror said during deliberations that the defendant was guilty of sexual

misconduct “because [he was] Mexican and Mexican men take whatever they

want” and also because the defendant’s alibi witness was “an illegal.” Id. at

213. The Court held that when “a juror makes a clear statement that indicates

he or she relied on racial stereotypes or animus to convict a criminal

defendant,” the rule barring evidence of internal influence must “give way in

order to permit the trial court to consider the evidence of the juror’s

statement and any resulting denial of the jury trial guarantee.” Id. at 225.

But unlike Pena-Rodriguez, which concerned the jury’s use of racial animus

or stereotypes against the defendant when voting to convict, Miller’s claim is

solely based upon alleged racial harassment directed at Bazile by other

members of the jury. Miller does not contend that the verdict was motivated

by racial bias or animus against him. And Miller points to no Supreme Court

or Fifth Circuit precedent extending the Pena-Rodriguez exception to cases

involving juror harassment directed at another juror.

To the contrary, courts are generally in agreement that intra-jury

intimidation or harassment constitutes internal influence covered under the

no-impeachment rule. See, e.g., United States v. Brown, 934 F.3d 1278,

1302-04 (11th Cir. 2019) (holding that allegations of racial bias against police

officers did not satisfy the narrow exception under Pena-Rodriguez, that

allegations of intra-jury bullying were “nothing more than a typical feature

of jury deliberations . . . that [ ] fall[] squarely within the no-impeachment

rule,” and that allegations of gender bias by one juror against another did not

fall within an exception because the court has “never held that bias of one

juror against another juror constitutes an exceptional circumstances to the

no-impeachment rule.” (emphasis in original)); United States v. Bailey, Nos.

19-2280/2281/2354 & 20-1235, 2022 WL 2444930, at *9 (6th Cir. July 5,

2022) (“[C]laims that a juror ‘pressured’ and ‘berated’ other jurors to reach

a guilty verdict concern matters internal to the jury.”); United States v.

Lakhani, 480 F.3d 171, 184-85 (3d Cir. 2007) (“[E]vidence of discussions

among jurors, intimidation or harassment of one juror by another, and other

intra-jury influences on the verdict is within the rule, rather than the

exception, and is not competent to impeach a verdict.”); United States v.

Briggs, 291 F.3d 958, 963 (7th Cir. 2002) (affirming district court’s denial of

post-verdict motion based on a juror’s allegations that jurors and the jury

foreman exerted “extreme and excessive pressure on individuals to change

votes”); United States v. Moses, 15 F.3d 774, 778 (8th Cir. 1994) (holding that

hostility among jurors during deliberations may not be shown); Gov’t of V.I.

v. Gereau, 523 F.2d 140, 149-50 (3d Cir. 1975) (“[E]vidence of discussions

among jurors, intimidation or harassment of one juror by another, and other

intra-jury influences on the verdict is within the rule, rather than the

exception.” (emphasis omitted) (footnotes omitted)); Martinez v. Food City,

Inc., 658 F.2d 369, 373 (5th Cir. 1981) (“[J]uror testimony regarding the

possible subjective prejudices or improper motives of individual jurors has

been held to be within the rule, rather than within the exception for

‘extraneous influences.’” (citations omitted)). Without binding precedent to

the contrary, the Court rejects Miller’s objection.

Even if there were circumstances under which a claim of intra-jury

racial harassment would be cognizable, this case would not qualify. This is

not a case where any juror contends that his or her vote to convict was

significantly motivated by racial antagonism or intimidation directed at him

or her by other jurors. Indeed, Bazile herself, who bore the brunt of the

alleged racism and bullying, maintained her position that Miller was not

guilty throughout deliberations and ultimately voted not to convict. And

there is also no allegation that the two other African American jurors,

including one who voted not guilty, were subject to any racial animus or

harassment. See Robinson, 872 F.3d at 771 (holding that Pena-Rodriguez

does not overcome the no-impeachment rule when the racial animus of

another juror “appeared not to influence [other juror’s] votes”). Rather,

Jacob, who is white, was the only juror whose vote was allegedly influenced,

albeit indirectly, by the racial harassment aimed at another juror. As

Magistrate Judge Roby discussed, there is no showing of any racial slurs or

other race-based harassment or intimidation directed at Jacob herself with

the purpose of influencing her vote of guilty.128 Jacob at most vaguely alleges

the use of non-specific “racial slurs” toward Bazile, which allegedly

influenced Jacob’s guilty vote because she wished to end deliberations and

allow the jury to return home.129 This is insufficient to impeach Miller’s

guilty verdict. See Brown, 934 F.3d at 1302 (holding that the no-

impeachment rule prohibits evidence that a juror “was overcome by

128 Id. at 30-31.

129 While unnecessary to the Court’s decision, the Court notes that Jacob’s

assertion that she voted to convict Miller in part out of a desire to end

the bullying and racial abuse of this young African American juror is

inherently self-contradictory. This is because her actions had the

certain result of convicting Miller, a young African American man, of

second-degree murder, based on evidence Jacob now says she

considered insufficient to convict. Thus, Jacob oddly contends that her

disapproval of racial harassment of an African American woman

motivated her to vote to convict an African American man of second-

degree murder.

weariness or unsound arguments of other jurors, or by a desire to return

home”).

The Court further notes that, although Jacob qualified her first vote as

guilty under duress to end deliberations, her second polling contained no

such qualifier. Before sending the jury back in to deliberate, the trial judge

clearly instructed that no juror should vote a certain way “for the mere

purpose of returning a verdict.”130 Even with this cautionary instruction,

Jacob did not reconsider and alter her vote to convict Miller. Jacob also took

no action, beyond the qualification of her initial vote, to alert the state court

of any of the harassment, coercion, or intimidation allegedly occurring in the

jury room towards Bazile.

Accordingly, Miller’s claim based on vague, non-specific allegations of

intra-jury racial harassment, without evidence of outside influence, does not

give rise to a post-verdict inquiry. The Court therefore accepts Magistrate

Judge Roby’s conclusion that Miller’s jury misconduct claim is meritless, and

no evidentiary hearing is warranted on this claim.

In sum, the Court, having reviewed de novo the petition, the record,

the applicable law, the Magistrate Judge’s R&R, and Miller’s objections,

adopts the Magistrate Judge’s R&R as its opinion. Miller’s objections are

130 R. Doc. 24 at 27-28.

overruled, and his petition is dismissed for the reasons stated in the

Magistrate Judge’s R&R and in this Order.

II. CERTIFICATE OF APPEALABILITY

Rule 11 of the Rules Governing Section 2254 Proceedings provides that

“[t]he district court must issue or deny a certificate of appealability when it

enters a final order adverse to the applicant.” A court may issue a certificate

of appealability only if the petitioner makes “a substantial showing of the

denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). The “controlling

standard” for a certificate of appealability requires the petitioner to show

“that reasonable jurists could debate whether (or, for that matter, agree that)

the petition should have been resolved in a different manner or that the

issues presented [are] ‘adequate to deserve encouragement to proceed

further.’” Miller-El, 537 U.S. at 336 (quoting Slack v. McDaniel, 529 U.S.

473, 475 (2000)).

Miller’s petition does not satisfy these standards. For the reasons

stated in this Court’s Order and in the R&R, the Court finds that Miller has

not demonstrated that he is entitled to federal habeas relief under § 2254 or

that his claims would engender debate among reasonable jurists or deserve

encouragement to proceed further. Thus, the Court will not issue a COA.

III. CONCLUSION

IT IS ORDERED that Miller’s petition is DISMISSED WITH

PREJUDICE. The Court will not issue a certificate of appealability.

New Orleans, Louisiana, this 13th _ day of November, 2023.

SARAH S. VANCE

UNITED STATES DISTRICT JUDGE

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