Petition for Writ of Certiorari — Steven D. Williams, Petitioner v. Jason Kent, Warden

IN THE

SUPREME COURT OF THE UNITED STATES

STEVEN D. WILLIAMS

---

PETITIONER

Vs.

WARDEN JASON KENT, et at., ------RESPONDENTS

ON PETITION FOR A WRIT OF CERTIORARI TO

UNITED STATES COURT OF APPEALS FIFTH CIRCUIT

PETITION FOR A WRIT OF CERTIORARI

STEVEN D. WILLIAMS #568180

(Petitioner)

P.O. BOX 788 U-2 D-1

(Address)

JACKSON, LA 70748-0788

(City, State, Zip Code)

225-634-1200

(Phone Number)

QUESTION(S) PRESENTED

Whether the evidence adduced at trial was insufficient

to support a verdict of armed robbery and attempted

armed robbery?

Did the Fifth Circuit err in deferring to the state court

finding that Mr. Williams was not prejudiced by his

trial counsel's errors when the Fifth Circuit's decision

was based on a flagrant misreading of the trial record?

LIST OF PARTIES

I I All parties appear in the caption of the case on the cover page.

[XI All parties do not appear in the caption of the case on the cover page. A list of all

parties to the proceeding in the court whose judgment is the subject of this petition is as

follows:

Leon A. Cannizzaro, Jr.

District Attorney 41St JDC

619 S. White St.

New Orleans, LA 70119

Hon. Camille Buras

Section "H", Criminal Courts Bldg.

2700 Tulane Ave.

New Orleans, LA 70119

-

11

TABLES OF CONTENTS

TABLE OF AUTHORITIES

.

iv

OPINIONSBELOW .................................................................................1

JURISDICTION.....................................................................................I

CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED ................ 2,3

PROCEDURAL HISTORY OF THE CASE ..................................................3-5

STATEMENT OF THE FACTS ................................................................5-7

REASONS FOR GRANTING THE WRIT

THE DECISION OF THE FIFTH CIRCUIT IS IN CONFLICT WITH THE

DECISIONS OF THIS COURT AND OTHER CIRCUITS. THE FINDINGS OF

THE FIFTH CIRCUIT ARE APPLIED IN AN "OBJECTIVELY

UNREASONABLE" MANNER TO CLEARLY ESTABLISHED PRECEDENT IN

JACKSON V. VIRGINIA AND WARRANTS THIS COURT'S ATTENTION.

INSUFFICIENT EVIDENCE TO CONVICT

LAW AND ARGUMENT....................................................................................7-15

THE FIFTH CIRCUIT COURT OF APPEAL MISAPPLIED THE

STRICKLAND STANDARDS OF INEFFECTIVE ASSISTANCE OF COUNSEL.

INEFFECTIVE ASSISTANCE OF COUNSEL

Counsel was ineffective for failure to adequately present the defense of actual

innocence during trial, whereas, Petitioner is actually innocent of the charged offense.

15-16

LAWAND ARGUMENT........................................................................................

Counsel was ineffective for failing to challenge the credibility of the State's eye

witnesses.

LAW AND ARGUMENT ............................................... .................................... 17

Counsel was ineffective for failing to file a pre-trial motion for severance of offenses

to obtain a ruling to determine whether trying the defendant separate on two counts,

whereas, joiner of these offenses were improper and prejudicial because it allowed the

jury to hear the otherwise inadmissible evidence.

LAW AND ARGUMENT................................................................................17-20

CONCLUSION....................................................................................20

PROOF OF SERVICE..............................................................................21

111

TABLE OF AUTHORITIES

CASES

PAGE(S)

Harrell, 737 F.2d at 979..............................................................................9

Herrera v. Collins, 506 U.S. 390, 113 S.Ct. 853 (1993).......................................15

Jackson v. Virginia, 443 U.S. 307, 318-19, (1979)...............................7, 8, 9, 13, 15

State v. Conway, 816 So.2d 290 (La. 2002).....................................................16

State v. Morris, 770 So.2d 908.....................................................................19

State v. Neal, 2000-0674, p. 11 (La. 9/21/01), 796 So.2d 649, 658...........................9

State v. Perry, 610 So.2d 746 (La. 1992).........................................................15

State v. Williams, 423 So.2d 1048, 1052 (La. 1982)........................................4, 16

State v. Williams, 2013 La.App. Unpub. LEXIS 250 (La.App. 4 Cir. Apr. 10, 2013)......4

State v. Williams, 125 So.3d 1101, 2013 La. LEXIS 2591 (La. 2013).........................4

State v. Williams, 2014 (La.App. 4 Cir., 2014) No. 2014-K-0874............................4

State ex rel. Williams v. State, 2015 La. LEXIS 1225 (La., June 1, 2015)...................4

Strickland v. Washington, 466 U.S. 668 S.Ct. 2052, 80 L.Ed.2d 674 (1984)......15, 16, 20

STATUTES AND RULES

Rules 10-14 of the Supreme Court

28 U.S.C. 1254(1)....................................................................................2

28 U.S.C. 1257(1)....................................................................................2

28 U.S.C. 2254.................................................................................3, 4, 8

U.S. CONST., AMEND. VI .................................................................... 2, 17

U.S. CONST., AMEND. XIV.................................................................3,16

Louisiana Constitution Art. I, 16, 17...................................................................................3

LSA- R.S. 14:27 (64).................................................................................9

LSA-R.S. 14:64 ..................................................................................... 3, 8

LSA-R.S. 15:529.1....................................................................................3

lv

OPINIONS BELOW

APPENDIX A The opinion of the United States Court of Appeals for the Fifth Circuit

denying a certificate of Appealability

APPENDIX B The Order of the United States Eastern District Court denying a

Certificate of Appealability

APPENDIX C The order of the United States District Court for the Eastern District of

Louisiana adopting the United States Magistrate Judge's report and recommendation

APPENDIX D The report and recommendation of the United States Magistrate Judge

for the Eastern District of Louisiana on Petitioner's Section 2254

APPENDIX E The original judgment of conviction of Petitioner was appealed to the

Louisiana Fourth Circuit Court of Appeals, which affirmed the conviction and sentence

APPENDIX F The original judgment of conviction of Petitioner was appealed to the

Louisiana Supreme Court, which denied discretionary review

APPENDIX G Order of the State Trial Court denying post-conviction relief

APPENDIX H The Louisiana Supreme Court Judgment denying Writ of Supervisory

Review

APPENDIX I The Orders of the Louisiana Fourth Circuit Court of Appeal denying

Writs of Review

APPENDIX J The original judgment of conviction of Petitioner in the Louisiana

Orleans Criminal District Court for Orleans Parish

APPENDIX K

Application for State Post Conviction Relief

APPENDIX L

Application for Writ of Supervisory Review (PCR-State)

APPENDIX M Section 2254 Habeas Corpus Petition

PETITION FOR WRIT OF CERTIORARI TO

THE UNITED STATES FIFTH CIRCUIT COURT

OF APPEALS

The Petitioner, Steven D. Williams, respectfully prays that a Writ of Certiorari

issue to review the judgment and opinion of the Fifth Circuit Courts rendered in these

proceedings on February 23, 2018.

JURISDICTIONAL STATEMENT

The Judgment of the United States Court of Appeals for the Fifth Circuit was

entered on February 23, 2018. The jurisdiction of this Court is invoked under 28 US. C.

1254(1).

The Judgments of the Louisiana Supreme Court were entered on November 15,

2013 and on June 1, 2015. The jurisdiction of this Court is invoked under 28 US.C.

1257(1).

CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED

The following statutory and constitutional provisions are involved in this case.

U.S. CONST., AMEND. VI.

In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial,

by an impartial jury of the Sate and district wherein the crime shall have been committed,

which district shall have been previously ascertained by law, and to be informed of the

nature and cause of the accusation; to be confronted with the witnesses against him; to

have compulsory process for obtaining witnesses in his favor, and to have the Assistance

of Counsel for his defense.

U.S. CONST., AMEND. XIV

All persons born or naturalized in the United States, and subject to the jurisdiction

thereof, are citizens of the United Sates and of the State wherein they reside. No State

shall make or enforce any law which shall abridge the privileges or immunities of citizens

of the United States; nor shall any State deprive any person of life, liberty, or property,

without due process of law; nor deny to any person within its jurisdiction the equal

protection of the laws.

28 U.S.C. 2254

Louisiana constitution Art. I, 16, 17.

PROCEDURAL HISTORY OF THE CASE

Steven D. Williams was charged by bill of information with three counts of armed

robbery with a firearm, in violation of LSA-R.S. 14:64. Mr. Williams entered a plea of

not guilty to each charge and proceeded to trial by jury. The State severed count three

from counts one and two, and proceeded on the first two counts only.

The jury returned a verdict of guilty as charged to armed robbery as to count one,

and the responsive verdict of attempted armed robbery as to count two, both verdicts

without the firearm provision.

The State filed a habitual offender bill and a hearing was set. The defense filed a

motion for new trial, which was denied. The habitual offender hearing was subsequently

heard and Mr. Williams found to be a second felony offender. The Trial Court sentenced

Mr. Williams to (50) years on count one, and (25) years on count two, without all

benefits, to run concurrently to each other and any other sentences he was serving, with

credit for time serve under the provisions of LSA-R.S. 15:529.1. The defense filed a

3

motion to reconsider the sentence, which was denied, and a motion for appeal, which was

granted. The State eventually entered a nolle prosequi as to the third count.

The convictions and sentences were affirmed on appeal on April 10, 2013.1 The

matter was submitted to the Louisiana Supreme Court on May 1, 2013. The Louisiana

Supreme Court rendered their decision on November 15, 2013, denying relief without

written opinion.2 The conviction then became final 90 days from said date.

The petitioner filed an Application for Post Conviction Relief in State trial court

on the 30th day of May, 2014. On the

11th day of June 2014, the trial court denied relief

without an evidentiary hearing.4

The petitioner then filed an Application for Writs of Supervisory and/or Review

on the 17th day of June 2014. On the 28" day of August 2014, the Fourth Circuit Court

of Appeal denied relief.6 A Writ of Supervisory Review was filed with the Louisiana

Supreme Court on September 5, 2014, and was denied without opinion on June 1, 2015.

On or about June 11, 2015, a Section §2254 Writ of Habeas Corpus petition was

filed in the United States District Court-Eastern District of Louisiana.8 The Magistrate

issued a Report and Recommendation to dismiss the petition with prejudice.9 After timely

objections to such were filed by Petitioner, the district court judge adopted the

magistrate's findings and dismissed the petition with prejudice and denied a Certificate of

Appendix E

Appendix F

Appendix K

"

Appendix G

Appendix L

6

Appendix I

Appendix H

8

Appendix M

Appendix D

2

4

9,

Appealability.'0 Notice of appeal was timely filed and granted by the district judge. An

Application to the Fifth Circuit Court of Appeals for a Certificate of Appealability was

timely filed on June 21, 2017. The U.S. 5th Circuit Court of Appeal denied said

Application for a COA on February 28, 2018. '

STATEMENT OF THE FACTS

Steven Williams was convicted of one count of armed robbery and one count of

attempted armed robbery, in a trial fraught with error where one of the alleged victims

did not appear or testify at trial and the other alleged victim failed to identify Steven

Williams in court as the perpetrator.

On August 21, 2010, Michael Hill was walking down Canal Street near the

Iberville Housing Development to his home at 1801 Canal Street with his fiend Che

Jones and Jones' girlfriend. (Tr.T.PP. 33-34).

Someone stopped to talk to Jones. Hill could not hear what they were saying, and

turned around to see Jones emptying his pockets. (Tr.T.P. 36). He testified t trial that he

guessed they had exchanged words and that the robber must have old Jones to give him

whatever he had in his pocket. (Tr.T.P. 38). Despite having filed discovery requesting

the substance of all statements that were going to be used against the defendant, the

statement was not provided to defense counsel prior to trial, nor was it ever mentioned in

any of the Police Reports or by any of the Police Officers.

°

Appendix B/C

11 Appendix A

5

Upon further questioning, Hill qualified that the robber did not actually pull a gun

from his pocket, nor did Hill actually see a gun. Instead, the robber gripped a handle that

was in his back pocket and did not remove the gun. (Tr.T.P. 38).

Hill told police at the scene that the handle of the gun was brown and wooden,

and did not tell police that any part of the gun was black as he testified at trial. (Tr.T.PP.

69-70). He also failed to mention to police that the robber had threatened him. (Tr.T.P.

68).

Hill argued with the robber but eventually gave him a wallet, which the robber

searched and returned when he discovered it was empty. Hill argued in favor of keeping

his phone, but the robber insisted he handed it over, so Hill turned over his Blackberry,

which contained a memory card of downloaded music. Hill also turned over a silver

necklace. (Tr.T.PP. 39,44).

Hill described the person who robbed him as black male teardrop tattoos on his

face, and provided a clothing description. (Tr.T..PP. 40-41). Hill admitted that

individuals with facial tattoos of teardrops are fairly common in this particular area.

(Tr.T.P. 54).

The following day, Hill was walking in the same area on his way home and

recognized his Blackberry, which had a distinctive neon case. The phone was in the

possession of Steven Williams, who was listening to headsets with it. (Tr.T.P. 43). Upon

seeing Steven Williams, Hill believed him to be the robber from the previous day. Hill

did not know Steven Williams at this time.

Hill rushed home, where Che Jones had arrived. Jones told Hill to call the police

while he went to look for the suspect. Hill called (911), and provided a clothing and

physical description. Hill though he recognized Steven Williams because Mr. Williams

was holding the Blackberry and because he had facial tattoos. (Tr.T.P. 44).

The police detained Steven Williams inside the housing development. They then

brought Hill to where they stopped Williams. Hill remained in the police car and

identified Mr. Williams through the front window of the unit. Hill also identified his

Blackberry. (Tr.T.P.P. 45-46)

Steven Williams was arrested upon Hill making the identification. Mr. Williams

told police he had found the Blackberry, but the statement was not allowed into trial.

A search warrant was prepared and executed at Mr. Williams' House in the

Iberville development, where he resided with his father Eddie Foley. Mr. Foley was a

guard for the Louisiana Superdome and licensed to carry a firearm. When the search

warrant was executed, the detective advised him that they were looking for a gun. Mr.

Foley led police to his service weapon, which was inside his duty belt, under his mattress,

in his bedroom. The bedroom door was secured by a double bolt, because Mr. Foley's

grandchildren stayed at the apartment, as well as, his uncle, who was a recovering drug

addict, and Foley wanted to make sure the gun was locked away. (Tr.T.PP. 60-61). The

gun, a black and chrome (40) caliber Smith and Wesson, was seized as evidence. (Tr.T.P.

60).

Che Jones did not appear at trial. Hill testified he did not know Jones'

whereabouts.

7

REASONS FOR GRANTING THE WRIT

THE DECISION OF THE FIFTH CIRCUIT IS IN CONFLICT WITH THE

I.

DECISIONS OF THIS COURT AND OTHER CIRCUITS. THE FINDINGS OF

THE FIFTH CIRCUIT ARE APPLIED IN AN "OBJECTIVELY

UNREASONABLE" MANNER TO CLEARLY ESTABLISHED PRECEDENT

SET IN JACKSON V. VIRGINIA AND WARRANTS THIS COURT'S

ATTENTION.

INSUFFICIENT EVIDENCE TO CONVICT

LAW AND ARGUMENT

In a habeas corpus proceeding arising from a claim that a person has been

convicted in a state court upon insufficient evidence, a federal court must consider

whether there is sufficient evidence to justify a rational trier of fact to find guilt beyond a

reasonable doubt, and should not restrict its inquiry to whether there is any evidence to

support the conviction; accordingly, in a challenge to a state court conviction under 28

USCS 2254, the applicant is entitled to habeas corpus relief, assuming settled procedural

prerequisites for such a claim have otherwise been satisfied, if it is found that upon the

record evidence adduced at trial, no rational trier of fact could have found proof of guilt

beyond a reasonable doubt in terms of the substantive elements of the criminal offense as

defined by state law.12

In the instant case, the evidence adduced at trial was insufficient to support a

verdict of armed robbery. Steven Williams was convicted of one count of armed robbery

and one count of attempted armed robbery of two different victims despite the fact that

one of the victims did not appear for trial and the other could not identify Mr. Williams in

court. The only way possible for the alleged victim to identify Mr. Williams was with

12

Jackson v. Virginia, 443 U.S. 307 (1979)

8

assistance from the prosecutor. Because this evidence was not sufficient to uphold the

convictions, they should be set aside.

To uphold a conviction for armed robbery, pursuant to La. R.S. 14:64, the State

was required to present proof beyond a reasonable doubt that there was a taking of

something of value that belonged to Michael Hill, from Michael Hill, by the use of force

or violence, while the robber was armed with a weapon.

To uphold the conviction for attempted armed robbery pursuant to La. R.S. 14:27

(64), the State was required to prove that the perpetrator took a step in furtherance of an

armed robbery against Che Jones.

The State was also required to present sufficient proof that Mr. Williams was the

perpetrator of both offenses.

When the key issue is whether a defendant was the perpetrator, rather than

whether a crime was committed, the State must negate any reasonable probability of

misidentification. State v. Neal, 2000-0674, p. 11 (La. 9/21/01), 796 So.2d 649, 658. In

doing so, the question is not whether we believe "that the evidence at the trial established

guilt beyond a reasonable doubt"-rather, the "relevant question is whether, after viewing

the evidence in the light most favorable to the prosecution, any rational trier of fact could

have found the essential elements of the crime beyond a reasonable doubt." Jackson v.

Virginia, 443 U.S. 307, 318-19, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979) (emphasis in

original). The "evidence need not exclude every reasonable hypothesis of innocence or be

wholly inconsistent with every conclusion except that of guilt." Harrell, 737 F.2d at 979.

Mr. Williams argues that the State did not present sufficient evidence to

demonstrate that he was the perpetrator of the offenses charged. In support thereof, he

respectfully submits as follows:

Armed Robbery

The defense does not dispute that Michael Hill may have been the subject of an

armed robbery. The defense maintains that the State failed to present sufficient evidence

that Mr. Williams was the individual who committed the armed robbery.

Michael Hill testified that he was walking down Canal Street with his friend, Che

Jones, when Jones stopped to talk to a person Hill did not know. Although Hill referred

to this person as Steven Williams, Hill testified on cross-examination that he did not

know the person who robbed him but learned name afterwards. (Tr. T. P. 51).

At first, Hill stated Jones was standing directly next to him when Jones stopped to

talk with Williams. Hill then indicated that he turned around and walked back to Jones

when he saw Jones had stopped to speak to someone. (Tr. T. P. 35).

Hill testified that, "I guess they had exchanged words to, to tell him that I'm

robbing you, to go to your pockets, give me everything you have. He took out

everything. He told the dude he didn't have anything". (Tr. T. P. 36).

When Hill approached the two, the perpetrator told Hill to give him what was in

Hill's pockets. (Tr. T. P. 36). Hill did not see a gun, and refused to comply. (Tr. T. Pgs.

36-37).

10

Hill eventually complied when he saw the robber reach for the handle of what he

assumed was a gun. Hill testified on direct that the perpetrator reached into his back

pocket and pulled out a gun. (Tr. T. P. 38).

Upon further questioning, Hill admitted he never saw a gun, but saw a black

handle. However, he told police that the handle of the gun was brown and wooden. (Tr.

T. Pgs. 38, 56).

Officer William Mullaly testified that the description of the gun was chrome with

a brown handle, and then acknowledged that the report indicates Hill did not just say

brown, but brown and wooden. (Tr. T. P. 10).

Hill gave a clothing description to the officer, with a physical description that the

robber had two teardrop tattoos on his face. (Tr. T. P. 8).

The day following the robbery, Hill was walking near the same route, which is

directly in front of the Iberville Housing Development, when he saw the man he believed

robbed him. He believed this was the same person because of the teardrop tattoos on his

face and the fact that he was carrying Hill's Blackberry and listening to music with

headsets on it. (Tr. T. P. 43).

He called police and gave them a clothing description and the direction the person

was walking toward. (Tr. T. P. 44).

Steven Williams was arrested inside the Iberville Development. He was in

possession of the Blackberry, but none of the other items taken during the robbery. Mr.

Williams told police he had found the phone, but the statement was not admitted at trial

as Mr. Williams did not testify.

11

Hill was brought to Williams' location and made an identification of the phone

and identified Mr. Williams as the robber.

Hill also testified that it was fairly common for people who live in that area have

teardrop tattoos. (Tr. T. P. 54).

At trial, Hill was unable to identify Mr. Williams until the State assisted him.

The police obtained a search warrant for Mr. Williams' apartment, where he lived

with his father, Eddie Foley, in the Iberville Development. Mr. Williams' father was a

Superdome security officer at the time, and owned a firearm, which he had a permit to

carry for his job. (Tr. T. pgs. 59-61).

The police explained to Mr. Foley that they were searching for a gun and he

voluntarily provided his service revolver to them. It was under a mattress in his service

belt, in a room with a door locked by a padlock because Mr. Foley had young

grandchildren who would frequently visit. The police confiscated the weapon. (Tr. T.

pgs. 60-61).

The gun is nickel-plated and black, silver on the top and black on the bottom. (Tr.

T. P. 60). This is relevant because Hill initially described a brown, wooden-handled gun

to the police, but at trial testified that the gun had a black handle.

Hill identified Steven Williams the day after the robbery based upon the fact that

Williams had teardrop tattoos and the stolen Blackberry. However, Hill admitted in court

that teardrop tattoos are common in that area of town. Additionally, being in possession

of stolen property is not the same as being the person who stole the property.

12

Hill also failed to identify Steven Williams as the perpetrator in court during trial

until he had assistance. Perhaps this was because he could not see the teardrops tattoos

from the witness stand, giving credence to the theory that Hill only identified Mr.

Williams because of the tattoos and the fact that he was in possession of the stolen phone.

Additionally, Hill tried to bolster his identification by changing the color of the

gun he saw on the robber to fit the description of the gun retrieved from Steven Williams'

father. Hill also changed his testimony, seemingly in the interest of making the case

more winnable for the State. While he stated on direct that the robber pulled a gun from

his back pocket, he changed his testimony when pushed that he didn't actually see a

gun—so apparently one was not pulled—and admitted he only saw the robber grip a

handle that was in his pocket. (Tr. T. P. 39).

Finally, while a silver chain was also taken in the robbery, it was not found in Mr.

Williams' physical possession nor in his house when it was searched, despite it being the

very next day after the robbery. (Tr. T.Pgs. 30, 40).

The State failed to present sufficient evidence that Steven Williams was the

individual who robbed Michael Hill. Specifically, the State failed to negate the

reasonable probability of misidentification by Hill, and consequently, the conviction

should be set aside. Because. Hill could not identify Mr. Williams at trial, the State failed

to present sufficient proof that: (1) Steven Williams was the one who commited the

armed robbery of Mr. Hill; and (2) that Hill had been robbed at all. The findings of the

district court are applied in an "objectively unreasonable" manner to clearly established

precedent in Jackson v. Virginia.

13

This Court must grant certiorari to correct a decision by the state court that is

contrary to and involves an unreasonable application of Federal law, as determined by

this Court.

Attempted Armed Robbery

The alleged victim of the attempted armed robbery, Che Jones, did not appear at

court to testify. There was no evidence presented that he was a victim of anything, and

consequently, the conviction should be set aside.

Hill testified only that he observed a man he did not know stop Jones and engage

in discussion. He saw Jones emptying his pockets and testified he assumed that they had

exchanged words to the effect that he the unknown male was robbing Jones. However,

he did not testify that he heard those words spoken in relation to Jones.

In fact, he testified, "I guess they had exchanged words to, to tell him that I'm

robbing you, to go to your pockets, give me everything you have. He took out

everything. He told the dude he didn't have anything". (Tr. T. P. 36).

The fact that Jones may have been emptying his pockets does not lead to only one

conclusion, that he was being robbed, It is just as reasonable that Jones knew the man

and owed him money, or drugs, or anything else that two men outside the projects in New

Orleans at 11:00 p.m. might be engaged in trading. (Tr. T. P. 36).

The defense asked Hill if he knew what Jones wanted to do in that area of town at

that time of night, and the State objected, so that Hill was not allowed to answer. (Tr. T.

P. 50).

14

Another reasonable explanation, and perhaps the reason Jones did not appear for

trial, is that Jones could have been in on the robbery of Hill with the perpetrator.

The fact that the perpetrator did not draw the gun, nor grip the gun when he was

speaking to Che Jones, as he did when he robber Hill, also tends support that a robbery or

attempted robbery did not occur, and that the actions by Jones in showing the man that he

had nothing in his pockets was voluntary, and in response to something other than a

robbery.

Because Jones did not testify at trial, the State failed to present sufficient proof

that: (1) Steven Williams was the one who attempted to rob Jones; and (2) that Jones had

been robbed at all. The findings of the district court are applied in an "objectively

unreasonable" manner to clearly established precedent in Jackson v. Virginia.

This Court must grant certiorari to correct a decision by the state court that is

contrary to and involves an unreasonable application of Federal law, as determined by

this Court.

II. THE FIFTH CIRCUIT COURT OF APPEAL MISAPPLIED THE

STRICKLAND STANDARDS OF INEFFECTIVE ASSISTANCE OF COUNSEL.

INEFFECTIVE ASSISTANCE OF COUNSEL

LAW AND ARGUMENT

A. Counsel was ineffective for failure to adequately present the defense of actual

innocence during trial, whereas, Petitioner is actually innocent of the charged

offense.

Claims of ineffective assistance are assessed under the familiar two-pronged

standard established by Strickland v. Washington, 466 U.S. 668 S.Ct. 2052, 80 L.Ed.2d

674 (1984). The defendant must show that there is a reasonable probability that, but for

15

counsel's unprofessional errors, the result of the proceeding would have been different.

A reasonable probability is a probability sufficient to undermine confidence in the

outcome.

Mr. Williams asserts a bona fide claim of actual innocence. See Herrera v.

Collins, 506 U.S. 390, 113 S.Ct. 853 (1993). The Louisiana Constitution provides at

least as much protection as the Federal Constitution. State v. Perry, 610 So.2d 746 (La.

1992).

The importance of avoiding injustices in Louisiana is demonstrated by the

legislature providing "greater protection against erroneous convictions based on

circumstantial evidence than is provided by the "Fourteenth Amendment". State v.

Williams, 423 So.2d 1048, 1052 (La. 1982). The Louisiana Supreme Court has assumed

that a bona fide claim of actual innocence involving sufficiently compelling new

evidence would entitle a petitioner to relief, provided that it does not rely on an

"alternative and inconsistent theory of defense to the one offered at trial". State v.

Conway, 816 So.2d 290 (La. 2002) (internal citations omitted). Mr. Williams' innocence

claim is entirely consistent with his defense at trial.

During the alleged incident, Mr. Williams was at his home at the Iberville

Housing Projects. The alleged robberies occurred on Canal and Villere Street, on or

I

around one block over from the street he lived on.

Mr. Williams did not commit the Armed Robbery and Attempted Armed

Robbery. The conduct alleged was the product of unsure alleged victims. Petitioner has

clearly shown in his pleadings that the defense in question was in fact a viable one and

the failure of trial counsel to present such was clearly deficient and overwhelmingly

lull

prejudicial to Mr. Williams. As such, counsel did not act as an efficient advocate and

violated the Strickland v. Washington standards.

The district court's findings are applied objectively unreasonable to Strickland

standards and jurists of reason could find that a court could resolve the issues in a

different manner; or that the questions are adequate to deserve encouragement to proceed

further.

B. Counsel was ineffective for failing to challenge the credibility of the State's eye

witnesses.

LAW AND ARGUMENT

Trial counsel failed to challenge the credibility of the State's eyewitness who had

ulterior motives for testifying that Mr. Williams was the perpetrator in this case. The

State's eyewitness Mr. Hill, alleged victim stated to the Detective that Mr. Williams

allegedly had a gun in his front pants pocket. During his testimony during trial, Mr. Hill

testified that Mr. Williams had a gun in his back pocket. In a nut shell, there wasn't any

gun, but a mere allegation as to Mr. Williams having a gun.

Mr. Williams demonstrated that his counsel failed to use the skill, judgment, and

diligence of a reasonably competent defense attorney, violating his rights under the Sixth

Amendment, and that deprivation violated his right to a fair trial. The defense counsel

failed to present to the court and jury that, the State's key witness alleged "victim" could

not identify Mr. Williams during trial. The only time that this alleged state witness did

identify Mr. Williams was when defense attorney got up from the defense table to cross

examine the state's witness. At no other time was the state's witness able to identify Mr.

17

Williams. This was allowed to take place before the jury, causing the mines of the jury to

be poisoned and tainted in their decision rendered against Mr. Williams.

C. Counsel was ineffective for failing to file a pre-trial motion for severance of

offenses to obtain a ruling to determine whether trying the defendant separate on

two counts, whereas, joiner of these offenses were improper and prejudicial because

it allowed the jury to hear the otherwise inadmissible evidence.

LAW AND ARGUMENT

Trial Counsel failed to file a pre-trial motion for severance of offense to obtain a

ruling to determine whether trying the defendant separate on both counts, whereas, joiner

of these offenses were improper and prejudicial because it allowed the jury to hear the

otherwise inadmissible evidence. The defendant avers that, to try the counts together

would prejudice him in that the jury will be confused by the multiple counts and will not

be able to segregate the evidence of each count. The Jury will necessary infer a criminal

disposition on the part of the defendant and be hostile to his defense if the counts are tried

together.

An element of offenses and the admission of the evidence allowed the State to

convict the defendant on both counts with insufficient proof. Allowing two different

counts to be present before the jury, the jury minds became poisoned and assume the guilt

without properly evaluating the evidence separately, denying the defendant a fair trial.

In State v. Morris, 770 So.2d 908, the Louisiana First Circuit Court of Appeal

stated that the court should consider a variety of factors when determining whether or not

to sever the separate counts. Included in the factors listed by the court were "whether the

jury would be confused by the various counts; whether the defendant could be

confounded in presenting his various defenses; whether the crimes charged would be

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used by the jury to infer a criminal disposition; and whether, considering the nature of the

offenses, the charging of several crimes would make the jury hostile." All of these

possibilities are present in this case; therefore, the separate counts should have been

severed.

In Stale v. Morris, supra, the defendant argued that the use of his prior conviction

would prejudice him by allowing the jury to hear otherwise inadmissible evidence of his

prior felonious conduct. The First Circuit held that defendant was not prejudice by the

joiner of the charges. This case in chief, the defendant was prejudice from the joiner of

the charges.

Defendant in the present case is arguing that allowing the both counts to be tried

together allowed the State to prove less then they would be required to prove if the both

counts were tried separately. The State must be required to prove all elements of each

offense. The jury will not be able to separate that evidence when it comes to determining

the issue of whether the defendant allegedly committed the different offenses before

them. It also does not help when the State during the closing arguments continues to

present prejudicial remarks of other crimes evidence, clearly poisoning the minds of the

jury. If the Jury is unable to segregate the evidence from the various charges, the

defendant is clearly prejudiced in that he might be convicted of a count for which, if tried

alone, the evidence would be insufficient to prove his guilt.

Allowing the State to join these counts violated the defendant's Constitutional

Rights to a Fair Trial, since the State would not have to prove each element of both

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counts to the same degree of proof that they would be required to show if the counts were

tried separately.

Proof of the armed robbery Count (1) is not proof of attempted armed robbery

Count (2). The State must be required to prove all elements to all counts beyond a

reasonable doubt and the jury, not trained in the law, will not be able to segregate the

evidence if the counts are allowed to be tried jointly. Therefore, by the trial counsel

failing to file a Motion to Severe the Offenses violated defendant's due process right to a

fair trial. The Convictions and Sentences must be reversed, and/or Granting a New Trial.

Because the Fifth Circuit Court of Appeals has truncated the scope of Strickland

v. Washington, 466 U.S. 668, 687-88 (1984), prejudice review, this Court must grant

certiorari.

CONCLUSION

For these reasons, a Writ of Certiorari should issue to review the judgment and

opinion of the Fifth Circuit Court.

Respectfully submitted,

,~t eme~L, Li &&A&

Steven D. Williams #568180

P.O. Box 788 / U-2-D-3

Jackson, LA 70748-0788

Date: May 17, 2018

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