Petition for Writ of Certiorari — Paul Poupart, Petitioner v. Timothy Hooper, Warden
Supreme Court briefJan 8, 2019
Ask Donna
What actually matters in this document.
Text
In the Supreme Court of the United States
PAUL POUPART, PETITIONER
v.
TIMOTHY HOOPER, WARDEN, ELYAN HUNT CORRECTIONAL
CENTER, RESPONDENT
ON WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
PETITION FOR WRIT OF CERTIORARI
JUSTIN CAINE HARRELL, ESQ.
Attorney for Petitioner
H2 Law, LLC
1100 Poydras Street
Suite 2900
New Orleans, Louisiana 70163
(504) 585-7329
QUESTION PRESENTED
An application for a writ of habeas corpus should
be granted with respect to any claim that was adjudicated
on the merits in State court proceedings that “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.” Cullen v. Pinholster, 131 S.Ct. 1388, 179 L. Ed.
2d 557, 563 U. S. 170 (2011); citing 28 U.S.C. § 2254(d)
Petitioner presents the following argument before
this honorable Court:
1. The U.S. Fifth Circuit departed from the accepted
and usual course of judicial proceedings and
sanctioned the departure by the U.S. District
Court in finding that:
A. The decisions of the state courts were not
unreasonable under the Antiterrorism and
Effective Death Penalty Act of 1996 even
though Petitioner’s custodial interrogation
persisted after Petitioner unequivocally
invoked his right to counsel and declined to
answer questions in violation of his rights
secured under the Fifth Amendment of the U.S.
Constitution as described in Miranda v.
Arizona, 384 U.S. 436 (1966).
i
TABLE OF CONTENTS
Page
1
Opinions Below
Statement of Jurisdiction
1
Constitutional and Statutory Provisions
1
Statement of the Case
3
Summary of the Argument
6
Argument
8
I.
The U.S. Fifth Circuit departed from
the accepted and usual course of
judicial proceedings by failing to find
that the state court rulings resulted
in a decision that was contrary to, or
involved
an
unreasonable
application of clearly established
Federal law
16
II.
The U.S. Fifth Circuit departed from
the accepted and usual course of
judicial proceedings by failing to find
that the Violation of Petitioner’s
Fifth Amendment Rights Was Not
Harmless
21
Conclusion
23
Appendix
1. Appellant’s Brief
2. Appellee’s Brief
ii
3. Appellant’s Reply Brief
4. Order, October 15, 2018
TABLE OF AUTHORITIES
Cases:
Arizona v. Fulminante, 499 U.S. 279, 111 S.
16
Ct. 1246, 113 L.Ed.2d 302 (1991)
Arizona v. Roberson, 486 U.S. 675, 108 S. Ct.
13
2093, 100 L.Ed.2d 704 (1988)
Brecht v. Abrahamson, 507 U.S. 619, 113 S.
15
Ct. 1710, 123 L. Ed. 2d 353 (1993)
Bruton v. United States, 391 U.S. 123, 88 S.
16
Ct. 1620, 20 L. Ed. 2d 476 (1968)
Burt v. Titlow, 82 U.S. 4007, 134 S. Ct. 10, 187
8
L. Ed. 2d 348 (2013)
Dickerson v. United States, 530 U.S. 428, 120
6, 12
S. Ct. 2326, 147 L. Ed. 2d 405 (2000)
Edwards v. Arizona, 451 U.S. 477, 101 S.Ct. 6-7, 12
1880, 68 L.Ed.2d 378 (1981)
Harrington v. Richter, 131 S.Ct. 770, 562 U.S.
8-9
86, 178 L. Ed. 2d 624 (2011)
Hopt v. Utah, 110 U.S. 574, 584-85; 28 L. Ed.
16
262; 4 S. Ct. 202 (1884)
Kalamazoo Cnty. Rd. Comm'n v. Deleon, 135
S. Ct. 783, 190 L.Ed.2d 887 (2015)
iii
9
Knowles v. Mirzayance, 129 S. Ct. 1411, 173
9
L. Ed. 2d. 251, 556 U.S. 111 (2009)
Lafler v. Cooper, 132 S. Ct. 1376, 182 L. Ed. 2d
9
398, 566 U.S. 156 (2012)
Michigan v. Mosley, 423 U.S. 96, 104; 96 S. Ct.
7, 13
321; 46 L. Ed. 2d 313 (1975)
Miller v. Fenton, 474 U.S. 104, 106 S.Ct. 445,
13
88 L.Ed.2d 405 (1985)
Miranda v. Arizona, 384 U.S. 436, 86 S. Ct.
1602, 16 L. Ed. 2d 694 (1966)
Rhode Island v. Innis, 446 U.S. 291, 100 S. Ct.
1682 (1980)
State ex rel. Poupart v. State, 162 So. 3d 383
4, 6,
12
7, 1314
4
(La. 2015)
State ex rel. Poupart v. State, 98 So. 3d 867
1
(La. 2012)
State v. Poupart, 88 So. 3d 1132 (La. App. 5
1, 12
Cir. 2012)
Williams v. Taylor, 529 U.S. 362, 120 S.Ct.
9
1495, 146 L.Ed.2d 389 (2000)
Constitution, statutes, and rules:
U.S. Const.:
Amend V
2-3
Amend XIV
3
iv
28 U.S.C. § 1254
1
28 U.S.C. § 2254
1, 9
v
PETITION FOR WRIT OF CERTIORARI
OPINIONS BELOW
The U.S. Fifth Circuit granted Petitioner’s
Application for a Certificate of Appealability on
February 21, 2018 in case no. 17-30411. The U.S.
District Court’s order denying Petitioner’s Petition
for Habeas Corpus was affirmed by the Fifth
Circuit on October 15, 2018. The Fifth Circuit’s
judgment is reported at No. 15-cv-01340 (E.D. La.
Nov. 7, 2018) at Doc No. 39-1. The Louisiana Fifth
Circuit’s Opinion affirming Petitioner’s conviction
and sentence is reported at State v. Poupart, 88 So.
3d 1132 (La. App. 5 Cir. 2012), writ denied 98 So.
3d 867 (La. 2012).
STATEMENT OF JURISDICTION
The Court has jurisdiction under 28 U.S.C.
§ 1254. The decision under review from the United
States Court of Appeals for the Fifth Circuit is an
Order rendered on October 15, 2018 affirming the
U.S. District Court’s denial of Petitioner’s Petition
for Habeas Relief. The instant Petition is timely
filed.
CONSTITUTIONAL AND STATUTORY
PROVISIONS
Section 2254 of Title 28 of the United States
Code, as amended by the Antiterrorism and
Effective Death Penalty Act (AEDPA), provides in
pertinent part:
-1-
(d) An application for a writ of habeas
corpus on behalf of a person in
custody pursuant to the judgment of
a State court shall not be granted
with respect to any claim that was
adjudicated on the merits in State
court
proceedings
unless
the
adjudication of the claim—
(1) 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; or
(2) resulted in a decision that
was based on an unreasonable
determination of the facts in
light of the evidence presented
in the State court proceeding.
*
*
*
*
The Fifth Amendment to the Constitution of
the United States provides:
No person shall be held to answer
for a capital, or otherwise infamous
crime, unless on a presentment or
indictment of a Grand Jury, except
in cases arising in the land or naval
forces, or in the Militia, when in
actual service in time of War or
-2-
public danger; nor shall any person
be subject for the same offence to be
twice put in jeopardy of life or limb;
nor shall be compelled in any
criminal case to be a witness
against himself, nor be deprived of
life, liberty, or property, without
due process of law; nor shall private
property be taken for public use,
without just compensation.
*
*
*
*
The
Fourteenth
Amendment
to
the
Constitution of the United States provides, in
pertinent part:
All persons born or naturalized in
the United States, and subject to
the jurisdiction thereof, are citizens
of the United States 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.
STATEMENT OF THE CASE
Petitioner is presently serving a 25-year
sentence for his January 12, 2011 conviction of one
-3-
(1) count Public Intimidation1. Petitioner’s
conviction was upheld by the Louisiana Fifth
Circuit Court of Appeal on February 28, 2012. The
Louisiana Supreme Court denied writs on October
8, 2012.
Petitioner filed a state Application for
Post-Conviction Relief on or about August 30,
2013. Petitioner’s Application described, among
other violations, the denial of his Fifth Amendment
rights as secured under Miranda v. Arizona, 384
U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).
Petitioner alleged that statements given to
Jefferson Parish authorities—which were used at
Petitioner’s trial—were elicited without regard to
Petitioner’s clear and unequivocal invocation of his
right to remain silent and have his attorney
present; without waiting a significant period time
before questioning resumed; and without a fresh
set of Miranda warnings as required by this
Court’s jurisprudence.
Petitioner’s Application was exhausted by
the Louisiana Supreme Court on March 27, 2015.
See State ex rel. Poupart v. State, 162 So. 3d 383
(La. 2015).
On April 24, 2015, Petitioner sought Habeas
relief. In recommending denial of Petitioner’s Fifth
Amendment claim, the Magistrate stated as
follows:
The undisputed facts of the instant case give
the Court pause. After Petitioner expressly
told Harrison that he wished to remain
silent, Harrison nevertheless failed to drop
1 Louisiana’s Public Intimidation Law, found at La. R.S. 14:122, was
held “unconstitutionally overbroad” by the U.S. Fifth Circuit on
August 3, 2018 in Seals v. McBee, 898 F.3d 587 (5th Cir., 2018).
-4-
the matter for any period of time, much less
a “significant period of time.” Although
Harrison may not have further questioned
Petitioner, he arguably “persist[ed] in
repeated efforts to wear down his resistance
and make him change his mind.” Mosley,
423 U.S. at 105-06. Specifically, without any
break whatsoever, Harrison continued
speaking to Petitioner about the same
crime, admittedly in the hope that it would
encourage Petitioner to change his mind and
make a statement despite his prior express
invocation of his right to remain silent
regarding that crime. When Petitioner did
in fact relent and decide to give a statement,
there is no indication that a “fresh set of
warnings” was provided.
While concluding that rational jurists could
“reasonably question whether Petitioner’s ‘right to
cut off questioning’ was ‘scrupulously honored,’”
the Magistrate could not declare the state court’s
rulings were unreasonable as required by the
“highly deferential” standard on Habeas review.
The District Court adopted the Magistrate’s
reasoning without additional explication.
The U.S. Fifth Circuit concluded that the
state courts “failed to apply the relevant factors
used to determine the admissibility of a
defendant’s statements to law enforcement made
after he has invoked his right to counsel and to
remain silent,” and granted Petitioner a Certificate
of Appealability (COA). The Fifth Circuit further
noted that “law enforcement failed to ‘scrupulously
honor’” Petitioner’s “unequivocal invocation of his
right to counsel at interrogation.”
-5-
Petitioner’s case proceeded to oral argument
on October 2, 2018. On October 15, 2018, the Fifth
Circuit affirmed the District Court’s denial of
Habeas relief without further explication.
SUMMARY OF THE ARGUMENT
When brought in for questioning, Petitioner
demurred. He refused to sign the Rights of
Arrestee form that was presented to him by JPSO
Lieutenant Bruce Harrison. He was represented
by counsel; he would wait to speak with his
attorney; he would not sign. But Harrison
persisted. Instead of “scrupulously honoring”
Petitioner’s clear assertion of his right to silence
and right to counsel, Harrison asked if Petitioner
elected to continue speaking with Petitioner to
persuade him to answer the lieutenant’s questions.
Instead of providing Petitioner with a “significant
period of time” before renewing his interrogation,
Harrison immediately “explain[ed] to [Petitioner]
that [he] wanted to discuss the case with him, [he]
wanted to lay out what [he] thought was the
simplicity of the case to him.” No fresh set of
Miranda warnings were issued.
A suspect must be apprised of his rights
against compulsory self-incrimination and his
right to consult with an attorney before authorities
may conduct custodial interrogation. See Miranda
v. Arizona, supra; Dickerson v. United States, 530
U.S. 428, 435; 120 S. Ct. 2326; 147 L. Ed. 2d 405
(2000). When an accused has invoked his right to
counsel during custodial interrogation, he is not
subject to further interrogation by the authorities
until counsel has been made available to him,
unless the accused himself initiates further
-6-
communication, exchanges, or conversations with
the police. Edwards v. Arizona, 451 U.S. 477, 484;
101 S.Ct. 1880; 68 L.Ed.2d 378 (1981). Where the
suspect chooses to cut off questioning until counsel
can be obtained, his choice must be “scrupulously
honored” by the police. Rhode Island v. Innis, 446
U.S. 291, 310; 100 S. Ct. 1682 (1980); citing
Michigan v. Mosley, 423 U.S. 96, 104; 96 S. Ct. 321;
46 L. Ed. 2d 313 (1975). This includes
“immediately
ceas[ing]
the
interrogation,
resum[ing] questioning only after the passage of a
significant period of time and the provision of a
fresh set of warnings, and restrict[ing] the second
interrogation to a crime that had not been a subject
of the earlier interrogation.” Mosley, 423 U.S. at
103.
In the instant case, the state court failed to
apply the relevant factors used to determine the
admissibility of his statements to law enforcement
made after he clearly invoked his right to counsel
and to remain silent. Mosley, 423 U.S. at 105–06.
Moreover, given the scant evidence against
Petitioner, his admissions, entered into evidence at
trial, were essential to the State’s case and not
harmless.
Petitioner presents the following argument
before this honorable Court:
1. The U.S. Fifth Circuit departed from the
accepted and usual course of judicial
proceedings and sanctioned the departure
by the U.S. District Court in finding that:
A. Petitioner’s custodial interrogation,
which
persisted
after
Petitioner
unequivocally invoked his right to
-7-
counsel and declined to answer
questions, did not result in a decision
that was contrary to, or involved an
unreasonable application of clearly
established Federal law, as determined
by this Court; and that
B. The violation of Petitioner’s rights
secured under the Fifth Amendment of
the U.S. Constitution as described in
Miranda v. Arizona, 384 U.S. 436 (1966)
was harmless.
REASONS FOR OVERRULING AND
VACATING THE DECISION OF THE U.S.
FIFTH CIRCUIT
A COA was issued upon Petitioner’s
substantial showing that reasonable jurists could
debate whether the U.S. District Court erred in
finding that Petitioner’s Fifth Amendment Right to
Counsel and Right to Remain Silent were not
violated by repeated, insistent, and unrelenting
interrogation immediately following Petitioner’s
clear and unequivocal invocation of his right to
silence and his right to counsel.
State courts are presumptively competent to
adjudicate claims arising under the laws of the
United States. Burt v. Titlow, 134 S. Ct. 10, 82 U.S.
4007, 187 L. Ed. 2d 348 (2013). “Recognizing the
duty and ability of our state-court colleagues to
adjudicate claims of constitutional wrong, AEDPA
erects a formidable barrier to federal habeas relief
for prisoners whose claims have been adjudicated
in state court.” Ibid. 134 S.Ct. at 19. “A state
court's determination that a claim lacks merit
-8-
precludes federal habeas relief so long as
‘fairminded jurists could disagree’ on the
correctness of the state court’s decision.”
Harrington v. Richter, 131 S.Ct. 770, 562 U.S.
86,178 L. Ed. 2d 624 (2011).
Habeas relief is appropriate where, as here,
the state court's decision “was contrary to, or
involved an unreasonable application of, clearly
established Federal law, as determined by the
Supreme Court of the United States.” 28 U.S.C. §
2254(d)(1); Knowles v. Mirzayance, 129 S. Ct.
1411, 173 L. Ed. 2d. 251, 556 U.S. 111 (2009). A
decision is contrary to clearly established law if the
state court “applies a rule that contradicts the
governing law set forth in [Supreme Court] cases.”
Lafler v. Cooper, 132 S. Ct. 1376, 182 L. Ed. 2d 398,
566 U.S. 156 (2012); Williams v. Taylor, 529 U.S.
362, 405; 120 S.Ct. 1495; 146 L.Ed.2d 389 (2000).
Certiorari is appropriate when “a United States
court of appeals ... has so far departed from the
accepted and usual course of judicial proceedings
... as to call for an exercise of this Court's
supervisory power.” Supreme Court Rule 10(a); see
also Kalamazoo Cnty. Rd. Comm'n v. Deleon, 135
S. Ct. 783, 190 L.Ed.2d 887 (2015) (J. Alito
dissenting).
In the instant case, the U.S. Court of
Appeals for the Fifth Circuit concluded that
Petitioner made a substantial showing of a
violation of a constitutional right and granted
review. However, the Court sanctioned the state
court’s error, finding that the continued
questioning of Petitioner after he invoked both his
Right to Remain Silent and his Right to Counsel,
did not violate clearly established federal law as
determined by this Court’s jurisprudence. In
-9-
affirming the District Court’s ruling, the U.S. Fifth
Circuit so far departed from the accepted and usual
course of judicial proceedings as to call for the
exercise of this Court’s supervisory powers.
I.
The U.S. Fifth Circuit departed from the
accepted and usual course of judicial
proceedings by failing to find that the
state court rulings resulted in a decision
that was contrary to, or involved an
unreasonable application of clearly
established Federal law
On September 8, 2009, Petitioner gave a
statement to Jefferson Parish authorities, which
was subsequently used at Appellant’s trial. The
contents of that statement and the context of its
delivery were described by Lieutenant Harrison at
trial as follows:
Q. And explain to me what happened in this
case.
A. Once I was notified that he was in
custody, in preparation of doing an
interview I took out one of these
[advisement of rights] forms, filled it out.
When he arrived, I went into the
interrogation room, and I read the rights
and asked if he understood and he said yes.
I explained I would like him to acknowledge
his understanding by initialing and signing.
He said he would rather not sign. He said
he had representation, he had an attorney,
and he would prefer not to sign anything.
- 10 -
Q. So did you question him at that point?
A. He said he didn’t want to answer any
questions.
Q. So did you ask him any questions?
A. No, what I did was just explain to him
that I wanted to discuss the case with him,
I wanted to lay out what I thought was the
simplicity of the case to him, and then ask
him again if he wanted me to ask any
questions.
Q. At that point did you ask him any
questions?
A. No. No, he said that would be fine. I
could tell him whatever I wanted.
….
Q. … After you told him how you perceived
the case the case, did he make any
statements?
A. Yes.
Q. What did he say?
A. He admitted having taken the pictures
but denied having posted them on the
website. It was at that point that I again
reiterated that I didn’t think that was part
of the crime, that the crime had been
committed prior to that, and at that point he
- 11 -
again denied posting the pictures but
admitted that he had been at Mike’s Bar the
week that he was tried for second degree
battery.
On direct appeal, the Louisiana Fifth
Circuit Court of Appeal concluded:
The record in this case shows that defendant
initially indicated that he did not want to
waive his rights and make a statement.
Lieutenant Harrison then told defendant
that he wanted to explain the case to him
and defendant agreed to listen. Defendant
then changed his mind and made a
voluntary statement. Accordingly, we find
that defendant’s statement was not made in
violation of Miranda, and thus, the trial
court did not err in denying defendant's
motion to suppress.
Poupart, 88 So. 3d at 1142. The Fifth Circuit’s
ruling was the last reasoned state court opinion on
the issue and represents a clear departure from
well-recognized
and
well-settled
federal
constitutional law.
A suspect must be apprised of his rights
against compulsory self-incrimination and to
consult with an attorney before authorities may
conduct custodial interrogation. Miranda v.
Arizona, supra; Dickerson v. United States, supra.
When an accused has invoked his right to counsel
during custodial interrogation, he is not subject to
further interrogation by the authorities until
counsel has been made available to him, unless the
accused himself initiates further communication,
- 12 -
exchanges, or conversations with the police.
Edwards v. Arizona, supra. Where the suspectdefendant chooses to cut off questioning until
counsel can be obtained, his choice must be
“scrupulously honored” by the police. Rhode Island
v. Innis, 446 U.S. at 310. This includes “not
only…express questioning, but also to any words
or actions on the part of the police (other than those
normally attendant to arrest and custody) that the
police should know are reasonably likely to elicit
an incriminating response” Ibid. 446 U.S. at 301.
Where the voluntariness of a confession
admitted at trial and in compliance with Miranda
is raised in Habeas proceedings, Habeas courts are
charged
with
an
“independent
federal
determination of the ultimate question whether,
under the totality of the circumstances, the
challenged confession was obtained in a manner
compatible with the requirements of the
Constitution.” Miller v. Fenton, 474 U.S. 104, 106
S.Ct. 445, 88 L.Ed.2d 405 (1985). Here, the Fifth
Circuit departed from the accepted and usual
course of judicial proceedings and sanctioned the
departure by the U.S. District Court.
After
Petitioner
expressly
and
unequivocally invoked his right to remain silent,
Lieutenant Harrison failed to drop the matter. He
persisted “in repeated efforts to wear down his
resistance and make him change his mind.”
Mosley, 423 U.S. at 105-06. Harrison asked if he
could continue speaking with Petitioner about the
crime in the hope that it would encourage
Petitioner to relent. When Lieutenant Harrison’s
stratagem prevailed, Harrison failed to provide
Petitioner with the “fresh set of warnings” as
required under the Fifth Amendment. See Arizona
- 13 -
v. Roberson, 486 U.S. 675, 108 S. Ct. 2093, 100
L.Ed.2d 704 (1988).
The state courts’ rulings represent a clear
departure from well-recognized and well-settled
federal constitutional law. While Petitioner was
initially Mirandized he refused to acknowledge or
waive his rights and, on the contrary, invoked his
right to silence and to counsel. There was no
significant break in the questioning. Rather,
Lieutenant Harrison continued to question and
speak with Petitioner in what can only be
described as single, unbroken harangue.
Lieutenant Harrison continued to speak, setting
forth the State’s view of the evidence against
Petitioner until Petitioner was browbeat into
believing that State’s case was ironclad, and
cooperation was the only means he had of lessening
his guilt.
Although the Magistrate noted that
Appellant did not object to hearing what Harrison
had to say about the matter, this is a distinction
without a difference. This Court has clearly held
that not only custodial questioning but “any words
or actions on the part of the police…that the police
should know are reasonably likely to elicit an
incriminating response” must cease. Rhode Island
v. Innis, 446 U.S. at 301.
There are few precepts in modern American
constitutional law more clearly established than
the right of a citizen to call to a stop a custodial
interrogation.
Custodial
environments
are
inherently coercive, and the vast power of the State
must be counterbalanced by the citizen’s absolute
right to refuse further questioning. Once clearly
invoked, no questioning or conduct reasonably
likely to elicit a response is permitted. Lieutenant
- 14 -
Harrison’s
continued
questioning
violated
Petitioner’s clear demand for silence and counsel.
And the Fifth Circuit erred in permitting so unjust
a state court ruling to remain intact.
II.
The U.S. Fifth Circuit departed from the
accepted and usual course of judicial
proceedings by failing to find that the
Violation
of
Appellant’s
Fifth
Amendment Rights Was Not Harmless
Fifth Amendment violations arising from
custodial interrogation are subject to harmless
error analysis. Brecht v. Abrahamson, 507 U.S.
619, 123 L. Ed. 2d 353, 113 S. Ct. 1710 (1993).
There can be no dispute that an error occurred in
the instant case. The question before this Court is
whether the state courts and the U.S. District
Court erred in concluding that the error was
harmless. The test for harmless error is whether
the error had “substantial and injurious effect or
influence in determining the jury verdict.” Ibid.
In the instant case, Petitioner’s statement to
Lieutenant Harrison included two (2) salient
details that were otherwise uncorroborated: that
Petitioner took the ribald photos that would later
make their appearance online at The Dirty.com
and that Petitioner was at the Mike’s Place at a
time coinciding with the State witnesses’
testimony alleging that Petitioner made
threatening
remarks
regarding
Detective
Higgerson. Without the admission of Petitioner’s
extrajudicial statements these facts remained
disputed at trial. By introducing evidence tending
to corroborate that Petitioner was responsible for
the photographs and was at the bar at the time the
- 15 -
alleged threats were made, the jury was given the
opportunity to make the natural logical inference
that Petitioner was likewise responsible for the
uploading of the pictures online in an attempt to
make good on his alleged threats.
“[A] voluntary confession the most
damaging form of evidence.” Bruton v. United
States, 391 U.S. 123, 140, 20 L. Ed. 2d 476, 88 S.
Ct. 1620 (1968). It “is not like other evidence” and
has been called “the most probative and damaging
evidence that can be admitted against a
defendant.” Arizona v. Fulminante, 499 U.S. 279,
111 S. Ct. 1246, 113 L.Ed.2d 302 (1991). When a
confession is deemed to be voluntary and untainted
by coercive police procedures, it is doubly probative
as “it is presumed to flow from the strongest sense
of guilt.” Hopt v. Utah, 110 U.S. 574, 584-85; 28 L.
Ed. 262; 4 S. Ct. 202 (1884). “[T]he risk that the
confession is unreliable, coupled with the profound
impact that the confession has upon the jury,
requires a reviewing court to exercise extreme
caution before determining that the admission of
the confession at trial was harmless.” Fulminante,
499 U.S. at 296.
Petitioner’s
purported
confession
established Petitioner as the photographer of the
images which appeared on The Dirty.com. While
the photographs themselves were not elements of
Petitioner’s alleged offense, they form the lynchpin
of the State’s narrative arc at trial in much the
same way the actual smoking gun may not be
necessary for a murder conviction but can be a
crucial piece of evidence crystallizing the jurors’
perception of the facts alleged at trial. Moreover,
Petitioner places himself at the Fat City bar at the
date and time where the alleged intimidation
- 16 -
supposedly occurred. Consequently, the admission
of Petitioner’s statements to Lieutenant Harrison
was not harmless.
CONCLUSION
The petition for writ of certiorari should be
granted.
Respectfully submitted,
/s/ Justin Caine Harrell
Justin Caine Harrell, Esq.
Attorney for Petitioner
H2 Law, LLC
1100 Poydras Street
Suite 2900
New Orleans, Louisiana 70163
(504) 585-7329
(504) 324-0145 facsimile
- 17 -
In the Supreme Court of the United States
PAUL POUPART, PETITIONER
v.
TIMOTHY HOOPER, WARDEN, ELYAN HUNT
CORRECTIONAL CENTER, RESPONDENT
ON WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
APPENDIX
JUSTIN CAINE HARRELL, ESQ.
Attorney for Petitioner
H2 Law, LLC
1100 Poydras Street
Suite 2900
New Orleans, Louisiana 70163
(504) 585-7329
App. 1
IN THE UNITED STATES COURT OF
APPEALS FOR THE FIFTH CIRCUIT
Case No. 17-30411
PAUL POUPART,
Petitioner - Appellant
v.
HOWARD PRINCE, WARDEN, ELAYN HUNT
CORRECTIONAL CENTER,
Respondent - Appellee
__________
Appeal from the United States District Court for
the Eastern District of Louisiana New Orleans,
Louisiana (U.S.D.C. No. 2:15-cv-01340-SM)
APPELLANT’S BRIEF
JUSTIN CAINE HARRELL, ESQ.
Attorney for Petitioner—Appellant
LSBA 31471
1100 Poydras Street, Suite 2900
New Orleans, Louisiana 70163
504-585-7329
504-324-0145 facsimile
App. 2
CERTIFICATE OF INTERESTED PERSONS
Pursuant to Fifth Circuit Rule 28.2.1, the
undersigned counsel of record certifies that the
following listed persons have an interest in the
outcome of this case. These representations are
made in order that the judges of this Court may
evaluate possible disqualification or recusal.
APPELLANT/APPELLANT:
Mr. Paul M. Poupart, DOC 357073
Elyan Hunt Correctional Center St.
Gabriel, Louisiana 70776
RESPONDENT/APPELLEE:
Warden Elyan Hunt Correctional
Center St. Gabriel, Louisiana 70776
/s/ Justin Caine Harrell
JUSTIN CAINE HARRELL, ESQ.
App. 3
STATEMENT CONCERNING ORAL
ARGUMENT
Appellant requests oral argument, believing
that oral argument would be useful to the Court in
resolving the issues raised in this appeal.
Appellant’s arguments involve application of wellsettled precedent to unique factual circumstances,
and some explication through oral argument would
undoubtedly aid this Court in its resolution of the
issues.
App. 4
TABLE OF CONTENTS
CERTIFICATE OF INTERESTED PERSONS 2
STATEMENT CONCERNING ORAL
ARGUMENT
3
TABLE OF AUTHORITIES
5
STATEMENTS OF JURISDICTION AND
STANDARD OF REVIEW
7
STATEMENT OF RELATED CASES
8
STATEMENT OF THE ISSUES PRESENTED
FOR REVIEW
9
STATEMENT OF THE CASE
10
SUMMARY OF THE ARGUMENT
12
ARGUMENT
14
Appellant was Denied the Fifth Amendment
Protections Described in Miranda v. Arizona
14
The Violation of Appellant’s Fifth Amendment
Rights Was Not Harmless
21
CONCLUSION
23
CERTIFICATE OF SERVICE
25
CERTIFICATE OF COMPLIANCE
26
App. 5
TABLE OF AUTHORITIES
CASES
Arizona v. Roberson, 486 U.S. 675, 108 S. Ct.
2093, 100 L.Ed.2d 704 (1988)
18
Austin v. Cain, 660 F.3d 880 (5th Cir. 2011)
7
Brecht v. Abrahamson, 507 U.S. 619, 123 L. Ed.
2d 353, 113 S. Ct. 1710 (1993)
21
Burgess v. Dretke, 350 F.3d 461 (5th Cir. 2003) 21
Dickerson v. United States, 530 U.S. 428, 120 S.
Ct. 2326, 147 L. Ed. 2d 405 (2000)
12, 16
Edwards v. Arizona, 451 U.S. 477, 101 S.Ct. 1880,
68 L.Ed.2d 378 (1981)
13, 16
Gutierrez v. Stephens, 590 F. App'x 371 (5th Cir.
2014)
17
Jones v. Cain, 600 F.3d 527 (5th Cir. 2010)
7
Jones v. Cunningham, 371 U.S. 236, 83 S. Ct. 373,
9 L. Ed. 2d 285 (1963)
24
Jordan v. Hargett, 34 F.3d 310, 315 (5th Cir.
1994)
21
Michigan v. Mosley, 423 U.S. 96, 96 S. Ct. 321, 46
L. Ed. 2d 313 (1975)
13, 17
App. 6
Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602,
16 L. Ed. 2d 694 (1966)
10, 12, 16
Rhode Island v. Innis, 446 U.S. 291 100 S. Ct.
1682, 1694 (1980)
13, 16, 19
Sparf v. United States, 156 U.S. 51, 15 S. Ct. 273,
39 L.Ed. 343 (1895)
22
State ex rel. Poupart v. State, 162 So. 3d 383 (La.
2015)
10
State v. Poupart, 88 So. 3d 1132 (La. App. 5 Cir.
2012)
10, 15-16
State v. Poupart, 98 So. 3d 867 (La. 2012)
10
United States v. Alvarado-Saldivar, 62 F.3d 697
(5th Cir. 1995)
13, 16-17
United States v. Chavira, 614 F.3d 127 (5th Cir.
2010)
19
West v. Johnson, 92 F.3d 1385 (5th Cir. 1996) 17
FEDERAL STATUTES
28 U.S.C. § 2253
7
28 U.S.C. § 2254
7
App. 7
RULES
Federal Rules of Appellate Procedure, Rule 22
7
Fifth Circuit Rules, Rule 28.2.1
2
App. 8
STATEMENTS OF JURISDICTION AND
STANDARD OF REVIEW
This court has jurisdiction over this appeal
pursuant to Rule 22 of the Federal Rules of
Appellate Procedure and 28 U.S.C. § 2253(c). This
is an appeal of the District Court’s April 27, 2017,
Order and Reasons denying Appellant, Paul
Poupart’s (hereinafter “Appellant”), Habeas
petition brought pursuant to 28 U.S.C. § 2254.
ROA.564.
February 21, 2018, this honorable Court
granted Appellant a Certificate of Appealability,
finding that the state court failed to apply the
relevant factors used to determine the
admissibility of a defendant’s statements to law
enforcement made after he has invoked his right to
counsel and to remain silent.”. Accordingly, this
Court concluded that reasonable jurists could
debate whether the district court correctly
determined that the state court’s dismissal of this
claim was not unreasonable.”
“In an appeal of the district court’s denial of
habeas relief, ‘this court reviews the district court’s
findings of fact for clear error and its conclusions
of law de novo, applying the same standard of
review that the district court applied to the state
court decision.’” Austin v. Cain, 660 F.3d 880, 884
(5th Cir. 2011); citing Jones v. Cain, 600 F.3d 527,
535 (5th Cir. 2010).
App. 9
STATEMENT OF RELATED CASES
Appellant is aware of no further cases, in
state or federal court, that are in any way related
to or touching upon the present appeal.
App. 10
STATEMENT OF THE ISSUES PRESENTED
FOR REVIEW
1. Whether the U.S. District Court of the
Eastern District of Louisiana, Hon.
Judge Susie Morgan, presiding, erred in
adopting
the
Report
and
Recommendations of Hon. Magistrate
Judge Sally Shushan, dated April 25,
2016, finding that Appellant’s Fifth
Amendment Right to Counsel and Right
to Remain Silent were not violated by
repeated, insistent, and unrelenting
interrogation immediately following
Appellant’s clear and unequivocal
invocation of his right to silence and his
right to counsel.
App. 11
STATEMENT OF THE CASE
Appellant is presently serving a 25-year
sentence for his January 12, 2011 conviction of one
(1) count Public Intimidation. Appellant’s
conviction was upheld by the Louisiana Fifth
Circuit Court of Appeal on February 28, 2012.
State v. Poupart, 88 So. 3d 1132 (La. App. 5 Cir.
2012). The Louisiana Supreme Court denied writs
on October 8, 2012. State v. Poupart, 98 So. 3d 867
(La. 2012).
Appellant filed a state Application for PostConviction Relief on or about August 30, 2013.
Appellant’s Application described, among other
violations, the denial of his Fifth Amendment
rights as secured under Miranda v. Arizona, 384
U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).
Appellant alleged that statements given to
Jefferson Parish authorities—which were used at
Appellant’s trial—were elicited without regard to
Appellant’s clear and unequivocal invocation of his
right to remain silent and have his attorney
present; without waiting a significant period time
before questioning resumed; and without a fresh
set of Miranda warnings as required by U.S.
Supreme Court jurisprudence.
Appellant’s Application was exhausted by
the Louisiana Supreme Court on March 27, 2015.
See State ex rel. Poupart v. State, 162 So. 3d 383
(La. 2015).
On April 24, 2015, Appellant sought
Habeas relief. In recommending denial of
Appellant’s Fifth Amendment claim, the
Magistrate stated as follows:
App. 12
The undisputed facts of the instant case
give the Court pause. After Appellant
expressly told Harrison that he wished to
remain silent, Harrison nevertheless
failed to drop the matter for any period
of time, much less a “significant period of
time.” Although Harrison may not have
further questioned Appellant, he
arguably “persist[ed] in repeated efforts
to wear down his resistance and make
him change his mind.” Mosley, 423 U.S.
at 105-06. Specifically, without any
break whatsoever, Harrison continued
speaking to Appellant about the same
crime, admittedly in the hope that it
would encourage Appellant to change his
mind and make a statement despite his
prior express invocation of his right to
remain silent regarding that crime.
When Appellant did in fact relent and
decide to give a statement, there is no
indication that a “fresh set of warnings”
was provided.
ROA.291-328. While concluding that rational
jurists could “reasonably question whether
Appellant’s ‘right to cut off questioning’ was
‘scrupulously honored,’ the Magistrate could not
declare the state court’s rulings were unreasonable
as required by the “highly deferential” standard on
Habeas review. Ibid.
The District Court adopted the Magistrate’s
reasoning
without
additional
explication.
ROA.564-565. This Court, however, concluded that
Appellant made a substantial showing that his
statements were inadmissible because law
App. 13
enforcement failed to “scrupulously honor” his
unequivocal invocation of his right to counsel at
interrogation.
App. 14
SUMMARY OF ARGUMENT
When brought in for questioning, Appellant
demurred. He refused to sign the Rights of
Arrestee form that was presented to him by JPSO
Lieutenant Bruce Harrison. He was represented
by counsel; he would wait to speak with his
attorney; he would not sign. But Harrison
persisted. Instead of “scrupulously honoring”
Appellant’s clear assertion of his right to silence
and right to counsel, Harrison elected to continue
speaking with Appellant to persuade him to
answer the lieutenant’s questions. Instead of
providing Appellant with a “significant period of
time” before renewing his interrogation, Harrison
immediately “explain[ed] to [Appellant] that [he]
wanted to discuss the case with him, [he] wanted
to lay out what [he] thought was the simplicity of
the case to him.” ROA.291-328. No fresh set of
Miranda warnings were issued.
A suspect must be apprised of his rights
against compulsory self-incrimination and his
right to consult with an attorney before authorities
may conduct custodial interrogation. See Miranda
v. Arizona, supra; Dickerson v. United States, 530
U.S. 428, 435; 120 S. Ct. 2326; 147 L. Ed. 2d 405
(2000). When an accused has invoked his right to
counsel during custodial interrogation, he is not
subject to further interrogation by the authorities
until counsel has been made available to him,
unless the accused himself initiates further
communication, exchanges, or conversations with
the police. Edwards v. Arizona, 451 U.S. 477, 484;
101 S.Ct. 1880; 68 L.Ed.2d 378 (1981). Where the
suspect chooses to cut off questioning until counsel
App. 15
can be obtained, his choice must be “scrupulously
honored” by the police. Rhode Island v. Innis, 446
U.S. 291, 310; 100 S. Ct. 1682 (1980); citing
Michigan v. Mosley, 423 U.S. 96, 104; 96 S. Ct. 321;
46 L. Ed. 2d 313 (1975). This includes
“immediately
ceas[ing]
the
interrogation,
resum[ing] questioning only after the passage of a
significant period of time and the provision of a
fresh set of warnings, and restrict[ing] the second
interrogation to a crime that had not been a subject
of the earlier interrogation.” Mosley, 423 U.S. at
103.
In the instant case, Appellant is entitled to
issuance of the Writ of Habeas Corpus as the state
court failed to apply the relevant factors used to
determine the admissibility of his statements to
law enforcement made after he clearly invoked his
right to counsel and to remain silent. See United
States v. Alvarado-Saldivar, 62 F.3d 697, 699 (5th
Cir. 1995); citing Mosley, 423 U.S. at 105–06.
Moreover, given the scant evidence against
Appellant, his admissions, entered into evidence at
trial, were essential to the State’s case and not
harmless.
App. 16
ARGUMENT
1. Appellant was Denied the Fifth Amendment
Protections Described in Miranda v. Arizona
On September 8, 2009, Appellant gave a
statement to Jefferson Parish authorities, which
was subsequently used at Appellant’s trial. The
contents of that statement and the context of its
delivery were described by Lieutenant Harrison at
trial as follows:
Q. And explain to me what happened in
this case.
A. Once I was notified that he was in
custody, in preparation of doing an
interview I took out one of these
[advisement of rights] forms, filled it out.
When he arrived I went into the
interrogation room, and I read the rights
and asked if he understood and he said
yes. I explained I would like him to
acknowledge his understanding by
initialing and signing. He said he would
rather not sign.
He said he had
representation, he had an attorney, and
he would prefer not to sign anything.
Q. So did you question him at that point?
A. He said he didn’t want to answer any
questions.
Q. So did you ask him any questions?
A. No, what I did was just explain to him
that I wanted to discuss the case with
him, I wanted to lay out what I thought
was the simplicity of the case to him, and
then ask him again if he wanted me to
ask any questions.
App. 17
Q. At that point did you ask him any
questions?
A. No. No, he said that would be fine. I
could tell him whatever I wanted. ….
Q. … After you told him how you
perceived the case the case, did he make
any statements?
A. Yes.
Q. What did he say?
A. He admitted having taken the
pictures, but denied having posted them
on the website. It was at that point that
I again reiterated that I didn’t think that
was part of the crime, that the crime had
been committed prior to that, and at that
point he again denied posting the
pictures, but admitted that he had been
at Mike’s Bar the week that he was tried
for second degree battery.
ROA.291-328.
Citing a non-precedential Louisiana Fourth
Circuit case and a distinguishable Louisiana
Supreme Court case—wherein the defendant gave
only an “indecisive negative response” to the
officer’s questioning—the Fifth Circuit concluded
thusly, on direct appeal:
The record in this case shows that
defendant initially indicated that he did
not want to waive his rights and make a
statement. Lieutenant Harrison then
told defendant that he wanted to explain
the case to him and defendant agreed to
listen. Defendant then changed his mind
and made a voluntary statement.
App. 18
Accordingly, we find that defendant’s
statement was not made in violation of
Miranda, and thus, the trial court did not
err in denying defendant's motion to
suppress.
Poupart, 88 So. 3d at 1142. The Fifth Circuit’s
ruling was the last reasoned state court opinion on
the issue and represents a clear departure from
well-recognized
and
well-settled
federal
constitutional law.
A suspect must be apprised of his rights
against compulsory self-incrimination and to
consult with an attorney before authorities may
conduct custodial interrogation. See Miranda v.
Arizona, supra; Dickerson v. United States, supra.
When an accused has invoked his right to counsel
during custodial interrogation, he is not subject to
further interrogation by the authorities until
counsel has been made available to him, unless the
accused himself initiates further communication,
exchanges, or conversations with the police.
Edwards v. Arizona, supra. Where the suspectdefendant chooses to cut off questioning until
counsel can be obtained, his choice must be
“scrupulously honored” by the police. Rhode Island
v. Innis, 446 U.S. at 310. In determining whether
a suspect-defendant’s decision to remain silent was
“scrupulously honored” courts must consider:
(1) whether the suspect was advised
prior to initial interrogation that he was
under no obligation to answer question
[sic]; (2) whether the suspect was advised
of his right to remain silent prior to the
reinterrogation; (3) the length of time
App. 19
between the two interrogations; (4)
whether the second interrogation was
restricted to a crime that had not been
the subject of earlier interrogation; and
(5) whether the suspect's first invocation
of rights was honored.
United States v. Alvarado-Saldivar, 62 F.3d at 699.
Where the voluntariness of a confession
admitted at trial and in compliance with Miranda
is raised in Habeas proceedings the “issues of
underlying or historic facts [and] the state court
findings, if fairly supported in the record, are
conclusive.” Gutierrez v. Stephens, 590 F. App'x
371, 375 (5th Cir. 2014); citing West v. Johnson, 92
F.3d 1385, 1402 (5th Cir. 1996). However, Habeas
courts are charged with an “independent federal
determination of the ultimate question whether,
under the totality of the circumstances, the
challenged confession was obtained in a manner
compatible with the requirements of the
Constitution.” Ibid.
Here, the Magistrate registered strong
dismay with the state courts’ rulings on this issue.
The Magistrate Court noted that after Appellant
expressly and unequivocally invoked his right to
remain silent, Lieutenant Harrison failed to drop
the matter. He persisted “in repeated efforts to
wear down his resistance and make him change his
mind.” Mosley, 423 U.S. at 105-06. Harrison
continued speaking with Appellant about the same
crime in the hope that it would encourage
Appellant relent. Moreover, when Lieutenant
Harrison’s stratagem prevailed, Harrison failed to
provide Appellant with the “fresh set of warnings”
App. 20
as required under the Fifth Amendment. See
Arizona v. Roberson, 486 U.S. 675, 108 S. Ct. 2093,
100 L.Ed.2d 704 (1988). Although the Magistrate
concluded that “reasonable jurists could perhaps
disagree on the correctness of the state court’s
conclusion,” the Court nevertheless upheld the
state courts’ flagrant disregard for federal
authority, finding peculiarly that the state courts’
conclusions were “not objectively unreasonable.”
ROA.291-328.
The Magistrates Report and the District
Court’s judgment based thereupon are in error.
The state courts’ rulings represent a clear
departure from well-recognized and well-settled
federal constitutional law. Practically none of the
Alvarado-Saldivar factors justify the use of
Appellant’s statements at trial. While Appellant
was initially Mirandized he refused to
acknowledge or waive his rights and, on the
contrary, invoked his right to silence and to
counsel. There was no significant break in the
questioning.
Rather,
Lieutenant
Harrison
continued to speak with Appellant in what can
only be described as single, unbroken harangue.
The second interrogation—if it can even properly
be called “second”—did not involve a different
offense. Quite the reverse, after Appellate made a
clear invocation of his right to silence, Lieutenant
Harrison continued to speak, setting forth the
State’s view of the evidence against Appellant. The
import of this strategy is evident: Appellant was
browbeat into believing that State’s case was
ironclad, and cooperation was the only means he
had of lessening his guilt. Lastly, Appellant’s first
invocation of his rights was not honored and after
Lieutenant Harrison’s recitation of the facts
App. 21
questioning resumed without a fresh set of
Miranda warnings.
Appellant’s “confession” was the product of
a single, lengthy custodial interrogation, one
wherein Appellant made a clear and unequivocal
invocation of his right to counsel and his right to
remain silent. Although the Magistrate noted that
Appellant did not object to hearing what Harrison
had to say about the matter, this is a distinction
without a difference. The U.S. Supreme Court has
issued no separate or distinct guidance for suspects
who wish to silence their interrogators. The law
provides for a stop in questioning upon a suspect’s
announcement that he or she wishes not to
participate in questioning; no magical language or
request, however, silences the law enforcement
officers. Rather, all interrogation and any words or
actions on the part of law enforcement that are
intended or reasonably likely to invoke an
incriminating response must cease immediately.
United States v. Chavira, 614 F.3d 127 (5th Cir.
2010); citing Rhode Island v. Innis, supra.
Accordingly, there can be no onus on Appellant for
failing-to-refuse-to-listen to Lieutenant Harrison’s
pontifications; once Appellant made a clear
invocation of his right to silence any
“interrogation,” including Lieutenant Harrison’s
dissertation on the “simplicity” of the case against
Appellant, must cease.
The only thing scrupulous about Lieutenant
Harrison’s questioning was the way he avoided
abiding by Petitioner’s clear demand for silence
and counsel. After all, it was Detective Steve
Higgerson, a fellow JPSO officer, whose conduct
and reputation were called into question by the
online publication of a scantily clad women on the
App. 22
hood of the detective’s police cruiser outside of
Mike’s Place in Fat City with the smiling detective
standing nearby. Jefferson Parish authorities
believed Appellant was responsible for the
disclosure of the photographs and, although this
case did not involve a violent felony or a major
crime,
Lieutenant
Harrison
showed
no
compunction in dispensing with Appellant’s Due
Process rights. Lieutenant Harrison continued to
interrogate Appellant, failed to wait a significant
time before re-urging his questioning, and refused
to re-Mirandizing Appellant once questioning
resumed—assuming, arguendo, that it ever ceased
in the first place. Accordingly, given the blatant
denial of Appellant’s Fifth Amendment rights,
Appellant is entitled to relief.
2. The Violation of Appellant’s Fifth Amendment
Rights Was Not Harmless
Fifth Amendment violations arising from
custodial interrogation are subject to harmless
error analysis. Burgess v. Dretke, 350 F.3d 461,
471 (5th Cir. 2003); citing Brecht v. Abrahamson,
507 U.S. 619, 123 L. Ed. 2d 353, 113 S. Ct. 1710
(1993). There can be no dispute that an error
occurred in the instant case. The question before
this Court is whether the state courts and the U.S.
District Court erred in concluding that the error
was harmless. “The test for harmless error is
whether the error had substantial and injurious
effect or influence in determining the jury verdict.”
Jordan v. Hargett, 34 F.3d 310, 315 (5th Cir. 1994).
In the instant case, Appellant statement to
Lieutenant Harrison included two (2) salient
details that were otherwise uncorroborated: that
App. 23
Appellant took the ribald photos that would later
make their appearance online at The Dirty.com
and that Appellant was at the Mike’s Place at a
time coinciding with the State witnesses’
testimony alleging that Appellant
made
threatening
remarks
regarding
Detective
Higgerson. Without the admission of Appellant’s
extrajudicial statements these facts remained
disputed at trial. By introducing evidence tending
to corroborate that Appellant was responsible for
the photographs and was at the bar at the time the
alleged threats were made, the jury was given the
opportunity to make the natural logical inference
that Appellant was likewise responsible for the
uploading of the pictures online in an attempt to
make good on his alleged threats.
A confession “is among the most effectual
proofs in the law and constitutes the strongest
evidence against the party making it….” Sparf v.
United States, 156 U.S. 51, 52; 15 S. Ct. 273; 39
L.Ed. 343 (1895). There can be no harmless error
when Appellant’s Fifth Amendment Rights were
violated in order to present to the jury
noncumulative testimony that substantiated the
State’s case.
Appellant’s
purported
confession
established Appellant as the photographer of the
images which appeared on The Dirty.com. While
the photographs themselves were not elements of
Appellant’s alleged offense, they form the lynchpin
of the State’s narrative arc at trial in much the
same way the actual smoking gun may not be
necessary for a murder conviction but can be a
crucial piece of evidence crystallizing the jurors’
perception of the facts alleged at trial. Moreover,
Appellant places himself at the Fat City bar at the
App. 24
date and time where the alleged intimidation
supposedly occurred. Consequently, the admission
of Appellant’s statements to Lieutenant Harrison
was not harmless. Appellant is entitled to relief.
App. 25
CONCLUSION
Appellant clearly and unequivocally
asserted his right to silence and Fifth Amendment
Right to counsel. Lieutenant Harrison was not
dissuaded and continued to speak with Appellant
in a manner he knew or should have known was
designed to weaken Appellant’s resolve and
reverse Appellant’s demand for silence. Lieutenant
Harrison did not scrupulously honor Appellant’s
invocation of his rights nor provide Appellant with
a significant length of time before resuming his
questioning. Lieutenant Harrison did not reMirandize Appellant. On the contrary, Lieutenant
Harrison scarcely paused to take a breath before
continuing to speak with Appellant in an effort to
elicit his statement.
Moreover, the admission of Appellant’s
statements was not harmless. The statement
served to corroborate key portions of the State’s
otherwise disputed and unsubstantiated evidence,
including that Appellant was the photographer of
the lewd images taken outside the bar and was
present at the bar at the time others alleged him
to have made so-called threatening remarks.
Appellant’s “confession” to these crucial details
had a substantial and injurious effect on the jury
verdict that cannot be overlooked.
App. 26
Appellant is therefore entitled to the
issuance of the writ of Habeas Corpus.
H2 LAW, LLC
By: /s/ Justin Caine Harrell
JUSTIN CAINE HARRELL, ESQ.
LSBA 31471
Attorneys for PAUL POUPART
1100 Poydras Street, Suite 2900
New Orleans, Louisiana 70163
504-585-7329
504-324-0145 facsimile
App. 27
CERTIFICATE OF SERVICE
I certify that that on April 19, 2018, a copy
of the above and foregoing was filed electronically
with the Clerk of Court using the CM/ECF system.
A paper copy of the foregoing was also served upon
Secretary James LeBlanc, Louisiana Department
of Corrections, by placing a true and correct copy
of the same with the U.S. Postal Service, postageprepaid, addressed to P.O. Box 94304, Baton
Rouge, LA 70804-9304.
By: /s/ Justin Caine Harrell
JUSTIN CAINE HARRELL, ESQ.
LSBA 31471
Attorneys for PAUL POUPART
1100 Poydras Street, Suite 2900
New Orleans, Louisiana 70163
504-585-7329
504-324-0145 facsimile
App. 28
CERTIFICATE OF COMPLIANCE
I certify that the foregoing Appellant’s Brief
is in compliance with the limitations imposed by
Fed.R.App.Pro. 32(a)(7) and 5th Cir. R. 32.2. The
instant brief consists of 18 pages and 3,343 words,
exclusive of the table of contents, table of
authorities, statement regarding oral argument,
and certificates of interested parties, service and
compliance.
By: /s/ Justin Caine Harrell
JUSTIN CAINE HARRELL, ESQ.
LSBA 31471
Attorneys for PAUL POUPART
1100 Poydras Street, Suite 2900
New Orleans, Louisiana 70163
504-585-7329
504-324-0145 facsimile
App. 29
IN THE
UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
______________________________
NO. 17-30411
______________________________
PAUL POUPART,
PETITIONER – APPELLANT
VERSUS
TIMOTHY HOOPER, WARDEN,
RESPONDENT - APPELLEE
______________________________________________
APPEAL FROM THE UNITED STATES
DISTRICT COURT FOR THE EASTERN
DISTRICT OF LOUISIANA, NO. 2:15-CV-01340,
THE HONORABLE SUSIE MORGAN, JUDGE.
______________________________________________
BRIEF ON BEHALF OF RESPONDENT APPELLEE
______________________________________________
PAUL D. CONNICK, JR.
DISTRICT ATTORNEY
24TH JUDICIAL DISTRICT
PARISH OF JEFFERSON
STATE OF LOUISIANA
JULIET L. CLARK
TERRY M. BOUDREAUX
ASSISTANT DISTRICT
ATTORNEYS
DISTRICT ATTORNEY’S OFFICE
App. 30
200 DERBIGNY STREET
GRETNA, LOUISIANA 70053
(504) 368-1020
App. 31
CERTIFICATE OF INTERESTED PARTIES
The undersigned counsel of record certifies
that the following listed persons have an interest
in the outcome of this case. These representations
are made in order that the judges of this court may
evaluate possible disqualification or recusal.
Petitioner-Appellant, Paul Poupart, has a personal
interest in the outcome of this case. RespondentAppellee, Timothy Hooper, appears herein in his
official capacity only.
Paul Poupart, # 357073, Appellant
Elayn Hunt Correctional Center
St. Gabriel, Louisiana 70776
Paul D. Connick, Jr.,
Counsel for Appellee District Attorney
Parish of Jefferson
Terry M. Boudreaux
Juliet Clark
Assistant District Attorneys
District Attorney’s Office
200 Derbigny Street Gretna, Louisiana 70053
Timothy Hooper, Warden, Appellee
Elayn Hunt Correctional Center
St. Gabriel, Louisiana 70776
Jeff Landry Attorney General, State of Louisiana
P.O. Box 94005 Baton Rouge, Louisiana 708049005
/s/ Juliet Clark
Attorney of Record For Appellee
App. 32
STATEMENT REGARDING ORAL ARGUMENT
The appellant requests oral argument in this case.
While the facts and legal arguments are presented
in brief and in the record, the decisional process
would be aided by oral argument. Accordingly, the
appellant respectfully requests oral argument
pursuant to Fed. R. App. P. 34 prior to the case
being submitted for decision
App. 33
TABLE OF CONTENTS
CERTIFICATE
OF
INTERESTED
PARTIES…………………………............................ ii
STATEMENT
REGARDING
ORAL
ARGUMENT......................................................... iii
TABLE OF CONTENTS. ..................................... iv
TABLE OF AUTHORITIES.................................. v
STATEMENT OF JURISDICTION....................... 1
STATEMENT OF THE ISSUE.............................. 2
STATEMENT OF THE CASE............................... 2
STATEMENT OF THE FACTS............................. 5
STANDARD OF REVIEW................................... 11
SUMMARY OF THE ARGUMENT. ................... 14
ARGUMENT........................................................ 15
CONCLUSION. ................................................... 31
CERTIFICATE OF SERVICE. ............................ 27
CERTIFICATE OF COMPLIANCE WITH RULE
32(a). .................................................................... 29
App. 34
TABLE OF AUTHORITIES
CASES
Page
Arizona v. Fulminante, 499 U.S. 279, 310 (1991)
Brecht v. Abrahamsom, 507 U.S. 619, 113 S.Ct.
1710, 123 L.Ed.2d 353 (1993)
Garcia v. Quarterman, 454 F.3d 441, 444 (5th Cir.
2006)
In re Coleman, 768 F.3d 367, 371 (5th Cir. 2014)
Michigan v. Mosley, 423 U.S. 96, 104, 96 S.Ct. 321,
46 L.Ed.2d 313 (1975)
Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602,
16 L.Ed.2d 694 (1966)
White v. Woodall,
U.S. , 134 S.Ct. 1697,1702,
188 L.Ed.2d 698 (2014
Williams v. Taylor, 529 U.S. 362, 120 S.Ct. 1495,
146 L.Ed.2d 389 (2000)
State v. Poupart, 11-KA-710 (2/28/12), 88 So.3d
1132.
State v. Poupart, 12-K-0705 (10/8/12) 88 So.3d
1132
State v. Poupart, 14-KH-375 (La. App. 5 Cir.
6/24/14)(unpublished writ disposition)
State v. Poupart, 14-1566 (La. 3/27/15) 162 So.3d
382
State ex rel. Poupart v. State, 14-1621 (La. 3/27/15)
162 So.3d 383 (3/27/15)
U.S. v. Alvarado-Saldivar, 62 F.3d 697 (1995)
App. 35
IN THE
UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
______________________________
NO. 17-30411
______________________________
PAUL POUPART,
PETITIONER – APPELLANT
VERSUS
TIMOTHY HOOPER, WARDEN,
RESPONDENT - APPELLEE
______________________________________________
APPEAL FROM THE UNITED STATES
DISTRICT COURT FOR THE EASTERN
DISTRICT OF LOUISIANA, NO. 2:15-CV-01340,
THE HONORABLE SUSIE MORGAN, JUDGE.
______________________________________________
BRIEF ON BEHALF OF RESPONDENT APPELLEE
______________________________________________
STATEMENT OF JURISDICTION
This appeal arises out of proceedings
conducted in the Eastern District of Louisiana.
This court has jurisdiction over the instant matter
pursuant to 28 U.S.C. §§ 1291 and 2253.
App. 36
STATEMENT OF THE ISSUE
Whether the district court correctly determined
that the state court did not unreasonably dismiss
Poupart’s claim that his statements were
inadmissible because they were obtained in
violation of his rights under Miranda v. Arizona,
384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).
STATEMENT OF THE CASE
Appellant, Paul Poupart, is a state court prisoner
currently incarcerated at the Elayn Hunt
Correctional Center, St. Gabriel, Louisiana. On
October 13, 2009, Poupart was charged by Bill of
Information with public intimidation, a violation of
LSA-R.S. 14:122. On October 22, 2009, Poupart
pled not guilty. Poupart was found guilty as
charged by a six person jury on January 12, 2011.
On February 4, 2001, Poupart’s Motion for New
Trial and Motion for Post Verdict Judgment of
Acquittal were heard and denied. On February
11, 2011, Poupart was sentenced to five years at
hard labor, with credit for time served.
An habitual offender bill of information was
filed on January 13, 2011, and a supplemental
habitual offender bill of information was filed on
March 9, 2011. On March 18, 2011, Poupart was
arraigned and entered a plea of not guilty to the
amended habitual offender bill of information,
which alleged him to be a fourth felony offender.
On April 29, 2011, the trial court found Poupart to
be a fourth felony offender and denied his Motion
to Depart from Mandatory Minimum Sentence
Under LSA-R.S. 15:529.1 Pursuant to State v.
Dorthey, Motion to Reconsider the Sentence of Five
App. 37
Years, Motion to Quash the Multiple Bill and
Motion for Appeal Bond. The trial court sentenced
Poupart as a fourth felony offender to twenty years
imprisonment at hard labor, without the benefit of
probation or suspension of sentence. Also on April
29, 2011, the trial court denied Poupart’s oral
motion to reconsider sentence, and subsequently
denied a written Motion to Reconsider the
Sentence filed on May 9, 2011.
On direct appeal, the Louisiana Fifth
Circuit Court of Appeal affirmed Poupart’s
conviction and sentence. State v. Poupart, 11-KA710 (2/28/12), 88 So.3d 1132. Poupart filed an
application for supervisory writs in the Louisiana
Supreme Court on March 28, 2012. It was denied
on October 8, 2012. State v. Poupart, 12-K-0705
(10/8/12) 88 So.3d 1132.
Stamped as filed August 30, 2013, Poupart,
through post-conviction counsel, submitted an
Application for Post Conviction Relief. Stamped as
filed September 30, 2013, Poupart also filed a Pro
Se Application for Post Conviction Relief. On
March 10, 2014, the state district court denied both
the counseled and pro se applications in a single
written order with reasons. The Louisiana Fifth
Circuit Court of Appeal denied Poupart’s timely
filed application for supervisory relief on June 24,
2014. State v. Poupart, 14-KH-375 (La. App. 5 Cir.
6/24/14)(unpublished writ disposition). Poupart
sought review of the Louisiana Fifth Circuit’s
denial of Writ No. 14-KH-375 by filing two writ
applications (Writ Nos. 14-KH-1621 and 14-KP1566) before the Louisiana Supreme Court. Writ
Nos. 14-KH-1621 and 14-KP-1566 were denied by
the Louisiana Supreme Court on March 27, 2015.
State v. Poupart, 14-1566 (La. 3/27/15) 162 So.3d
App. 38
382; State ex rel. Poupart v. State, 14-1621 (La.
3/27/15) 162 So.3d 383 (3/27/15).
On April 24, 2015, Poupart filed a counseled
federal habeas corpus petition in the United States
District Court, Eastern District of Louisiana.1 On
June 10, 2015, the Magistrate Judge issued an
order granting Poupart’s counsel’s motion to
withdraw, permitting Poupart t to supplement his
habeas petition on or before August 14, 2015, and
allowing the State of Louisiana to respond to any
supplemental filing on or before September 14,
2015.
Poupart’s supplemental filing was stamped
as filed July 16, 2015. In it, as relevant to the
instant appeal, Poupart presented a claim that the
state court erred in denying the motion to suppress
his statements as a violation of Miranda v.
Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d
694 (1966). On April 25, 2016, the Magistrate
Judge issued a Report and Recommendation
recommending that the petition be dismissed with
prejudice. Dated June 8, 2016, Poupart filed
objections to the Report and Recommendation.
On April 27, 2017, the United States District
Court Judge issued an order adopting the Report
and Recommendation. Judgment was entered in
favor of Robert Tanner, Warden, and against
Poupart on that date. On April 27, 2017, the
district court also issued an order denying, sua
sponte, a Certificate of Appealability. Poupart
subsequently sought a certificate of appealability
from this Honorable court, which granted it in part
and denied it in part.
App. 39
STATEMENT OF THE FACTS
At trial, Michael Baratinni testified that he is the
owner of a bar located in Metairie. He stated that
Detective Steve Higgerson worked at his bar as a
detail officer. He explained that a few years before
defendant was arrested in this case, Detective
Higgerson arrested defendant for an incident that
occurred outside of the bar and charged him with
battery.
Mr.
Baratinni
testified
that
approximately two days before his trial on the
battery charge, defendant went to the bar and
spoke to him about Detective Higgerson.
Defendant told Mr. Baratinni to tell Detective
Higgerson that if he showed up in court, defendant
had pictures of a "girl" that he would "go public
with." The next day, an assistant district attorney
came to the bar to take pictures for the trial on
defendant's battery charge. At that time, Mr.
Baratinni informed the assistant district attorney
that defendant had been in the bar the day before
and had threatened Detective Higgerson.
Thereafter, Mr. Baratinni was interviewed by
Lieutenant Cantrell and Lieutenant Bruce
Harrison regarding the threat.
On cross-examination, Mr. Baratinni
testified that the interviews with the police took
place at his bar after the pictures were posted on
The Dirty.com website. Mr. Baratinni stated that
Detective Higgerson had worked for him for about
ten years and that they were friends. Mr.
Baratinni replied negatively when asked whether
defendant showed him any pictures or described
the pictures on the day defendant made the
threats. He stated that he had no idea at that time
that defendant was referring to a picture of a girl
App. 40
with her legs open on the hood of Detective
Higgerson's marked police vehicle and a picture of
a girl on Detective Higgerson's vehicle with her
"behind in the air" while Detective Higgerson was
standing next to the vehicle. Mr. Baratinni further
testified that he was present the night the pictures
were taken. He had no recollection, however, of a
girl on the hood of Detective Higgerson's vehicle.
Further, he told the police that he did not think
Detective Higgerson would allow a girl to get on
the hood of his vehicle. Defense counsel then asked,
"So when you supposedly called [Detective
Higgerson] to tell him about what [defendant] told
you, what did you tell him? What was the big
threat, if you didn't know what was even in the
pictures?" Mr. Baratinni responded, "Well, I
relayed the message. It was that if [Detective
Higgerson] was to go to court, [defendant] was
going to go public with some pictures he had."
On redirect examination, Mr. Baratinni
reiterated that defendant came by his bar and told
him to pass the threat on to Detective Higgerson,
and to tell Detective Higgerson that it would be in
his best interest not to go to court. Mr. Baratinni
repeated that he passed this information on to
Detective Higgerson.
The State then called Arthur Massel, who
stated that he has known Mr. Baratinni for about
fifteen years and had previously been employed at
Mr. Baratinni's bar. Mr. Massel testified that he
was present when defendant spoke with Mr.
Baratinni at the bar, overhearing a conversation in
which defendant "said a policeman way back
[sic]—he made a threat to him with some pictures
that he had that he was going to go public with."
Mr. Massel explained that defendant stated that
App. 41
he would go public with the pictures if Detective
Higgerson appeared in court.
On cross-examination, Mr. Massel testified
that he has known Detective Higgerson for about
three or four years. He stated that the day he
overheard the conversation between defendant
and Mr. Baratinni was the first and only time he
had ever seen defendant. Thereafter, he gave a
statement in which he told the police that as
defendant was walking out of the bar, he heard
him tell Mr. Baratinni to "[l]et [Detective
Higgerson] know if he shows up in court I can go
public with this."
Detective Steve Higgerson testified that he
has been employed with the Jefferson Parish
Sheriff's Office for thirteen years, and he also
worked a private detail at Mr. Baratinni's bar for
about eight or nine years. At trial, he identified
defendant as the same individual he arrested for
second degree battery due to a fight in the street
in front of the bar.
The night before defendant's trial for
battery, Detective Higgerson received a phone call
from Mr. Baratinni informing him that defendant
"had some pictures [he] might not want to get out,"
and it would be in his best interest if he did not
testify at trial. Detective Higgerson stated that he
took that as a threat. Despite this information, he
testified at defendant's trial on the battery charge
in August 2009. Within a month after the trial, two
photographs were posted on the internet depicting
a woman posing on a Sheriff's Office patrol car.
At trial, Detective Higgerson described the
circumstances at the time the photographs were
taken. He testified that he had his back to his
patrol car and was speaking with Mr. Baratinni,
App. 42
who had pulled up in his truck, when Mr.
Baratinni brought his attention to the fact that
there was a person on the hood of his vehicle.
Detective Higgerson testified that when he turned
to look, he saw the image captured in State exhibit
two, which depicts a woman on the hood of his
vehicle with her legs open. He noticed people
standing outside, but he did not see the
photographer.
On cross-examination, Detective Higgerson
testified that he no longer works detail at the bar.
He did not recall being in these photographs and
did not remember a girl being on his vehicle before
the photographs were posted on the internet.
When Mr. Baratinni called him regarding the
photographs, he had no idea what was depicted in
the photographs. He acknowledged that defendant
never contacted him directly. He testified that
after he received the phone call from Mr.
Baratinni, the next day at trial, he informed the
assistant district attorney what Mr. Baratinni had
told him.
Lieutenant Bruce Harrison testified that he
has been employed with the Jefferson Parish
Sheriff's Office since 1995. In August 2009, he was
assigned an investigation involving public
intimidation where the victim was Detective
Higgerson. As part of that investigation, he
interviewed Mr. Baratinni, Mr. Massel and
Detective Higgerson and saw the two photographs
of the woman on the car that were posted on The
Dirty.com website.
Numerous items were seized from
defendant's residence, pursuant to a search
warrant, including a disc containing the two
photographs relevant to the case. Lieutenant
App. 43
Harrison testified that a piece of paper with
defendant's arrest register in the battery case was
folded inside two pieces of paper on which the
pictures of the girl on the car were printed.
Additionally, a ledger was found near the computer
table. This ledger listed the name and address of
the victim from the original battery incident on one
page; Detective Higgerson's name, badge number,
off duty number and payroll number were listed on
the next page.
Defendant was subsequently arrested on
September 8, 2009. Lieutenant Harrison read
defendant his Miranda rights. Thereafter,
defendant admitted that he took the photographs,
but denied posting them on the website. He further
admitted that he was present at Mr. Baratinni's
bar the week of his trial for second degree battery,
the same week he allegedly made the threats.
STANDARD OF REVIEW
This case is governed by the Antiterrorism
and Effective Death Penalty Act of 1996, Pub.L.
104-132, 110 Stat. 1214. The standard of review is
set forth in 28 U.S.C. § 2254(d) and (e). The
AEDPA mandates that claims adjudicated on the
merits in state court proceedings are subject to the
following standards of review:
(d) An application for a writ of habeas
corpus on behalf of a person in custody
pursuant to the judgment of a State
court shall not be granted with respect to
any claim that was adjudicated on the
merits in State court proceedings unless
the adjudication of the claim -
App. 44
(1) 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; or
(2) resulted in a decision that was
based
on
an
unreasonable
determination of the facts in light
of the evidence presented in the
State court proceeding.
(e)(1) In a proceeding instituted by an
application for a writ of habeas corpus by
a person in custody pursuant to the
judgment of a State court, a
determination of a factual issue made by
a State court shall be presumed to be
correct. The applicant shall have the
burden of rebutting the presumption of
correctness by clear and convincing
evidence.
(2) If the applicant has failed to develop
the factual basis of a claim in State court
proceedings, the court shall not hold an
evidentiary hearing on the claim unless
the applicant shows that —
(A) the claim relies on—
(I)
a
new
rule
of
constitutional law, made
retroactive to cases on
collateral review by the
Supreme Court, that was
previously unavailable; or (ii)
a factual predicate that could
not have been previously
App. 45
discovered
through
the
exercise of due diligence; and
(B) the facts underlying the
claim would be sufficient to
establish by clear and convincing
evidence
that
but
for
constitutional
error,
no
reasonable factfinder would have
found the applicant guilty of the
underlying offense.
28 U.S.C. § 2254(d) and (e).
Under 28 U.S.C. § 2254(d)(1), a federal
habeas court may not grant a state prisoner’s
application for a writ of habeas corpus with respect
to claims adjudicated on the merits in state court
unless the state-court adjudication resulted in a
decision that (1) was contrary to, or involved an
unreasonable application of, clearly established
federal law as determined by the Supreme Court;
or (2) resulted in a decision that was based on an
unreasonable determination of the facts in light of
the evidence presented in the State court
proceeding. See, 28 U.S.C. § 2254(d).
The Supreme Court has clarified that a
decision is “contrary to” clearly established federal
law if the state court arrives at a conclusion
opposite to that reached by the Supreme Court on
a question of law, or if the state court decides a case
differently than the Supreme Court has on a set of
materially indistinguishable facts. Williams v.
Taylor, 529 U.S. 362, 412-413, 120 S.Ct. 1495,
1523, 146 L.Ed.2d 389 (2000); accord Hill v.
Johnson, 210 F.3d 481, 485 (5th Cir. 2000), cert
denied, 121 S.Ct. 2001, 149 L.Ed.2d 1004 (2001).
App. 46
As the United States Supreme Court noted
in White v. Woodall,
U.S.
, 134 S.Ct.
1697,1702, 188 L.Ed.2d 698 (2014):
“ ‘[C]learly established Federal law’ ” for
purposes of § 2254(d)(1) includes only “
‘the holdings, as opposed to the dicta, of
this Court's decisions.’ ” Howes v. Fields,
565 U.S. ––––, ––––, 132 S.Ct. 1181,
1187, 182 L.Ed.2d 17 (2012) (quoting
Williams v. Taylor, 529 U.S. 362, 412,
120 S.Ct. 1495, 146 L.Ed.2d 389 (2000)).
And an “unreasonable application of”
those holdings must be “ ‘objectively
unreasonable,’ ” not merely wrong; even
“clear error” will not suffice. Lockyer v.
Andrade, 538 U.S. 63, 75–76, 123 S.Ct.
1166, 155 L.Ed.2d 144 (2003). Rather,
“[a]s a condition for obtaining habeas
corpus from a federal court, a state
prisoner must show that the state court's
ruling on the claim being presented in
federal court was so lacking in
justification that there was an error well
understood and comprehended in
existing law beyond any possibility for
fairminded disagreement.” Harrington v.
Richter, 562 U.S. ––––, ––––, 131 S.Ct.
770, 786–787, 178 L.Ed.2d 624 (2011).
And under 28 U.S.C. § 2254(e)(1), the state court’s
findings of fact are entitled to a presumption of
correctness, rebuttable only by clear and
convincing evidence.
With regard to the applicable appellate
standard of review in federal habeas proceedings,
App. 47
this Court is to review the district court's findings
of fact for clear error and review its conclusions of
law de novo:
“ ‘In a habeas corpus appeal, we review
the district court's findings of fact for
clear error and review its conclusions of
law de novo, applying the same standard
of review to the state court's decision as
the district court.’ ” Martinez v. Johnson,
255 F.3d 229, 237 (5th Cir.2001) (quoting
Thompson v. Cain, 161 F.3d 802, 805
(5th Cir.1998)). If the issue is a mixed
question of law and fact, such as the
assessment of harmless error, we review
the district court's determination de
novo. Robertson v. Cain, 324 F.3d 297,
301 (5th Cir.2003) (citing Jones v. Cain,
227 F.3d 228, 230 (5th Cir.2000)).
....Under AEDPA, “[a] federal court's
collateral review of a state-court decision
must be consistent with the respect due
state courts in our federal system.”
Miller-El v. Cockrell, 537 U.S. 322, 340,
123 S.Ct. 1029, 154 L.Ed.2d 931 (2003).
Moreover, our circuit precedent provides
that “ ‘a federal habeas court is
authorized by Section 2254(d) to review
only a state court's ‘decision,’ and not the
written opinion explaining that decision.'
” Pondexter v. Dretke, 346 F.3d 142, 148
(5th Cir.2003) (quoting Neal v. Puckett,
286 F.3d 230, 246 (5th Cir.2002) (en
banc)). See also Santellan v. Cockrell,
271 F.3d 190, 193 (5th Cir.2001) (“The
App. 48
statute compels federal courts to review
for reasonableness the state court's
ultimate decision, not every jot of its
reasoning.”).
Garcia v. Quarterman, 454 F.3d 441, 444 (5th Cir.
2006).
SUMMARY OF THE ARGUMENT
The United States District Court properly
concluded that the state court’s decision denying
the motion to suppress Poupart’s statement as a
violation of Miranda v. Arizona, 384 U.S. 436
(1966), was not contrary to, or an unreasonable
application of, clearly established federal law.
Moreover, the United States District Court
properly concluded that, even if Poupart’s
constitutional rights were violated with respect to
the statement, its admission was clearly harmless
because it did not have a “substantial and injurious
effect or influence in determining the jury’s
verdict.” See Brecht v. Abrahamsom, 507 U.S. 619,
623, 113 S.Ct. 1710, 1714, 123 L.Ed.2d 353 (1993).
LAW AND ARGUMENT
On appeal, Poupart challenges the
admission of his statements to Lt. Harrison. He
argues that “he was denied the Fifth Amendment
protections described in Miranda v. Arizona” with
respect to the statements and asserts that the
subsequent admission of the statements was not
harmless.
A review of the record demonstrates that the
United States District Court properly concluded
App. 49
that the state court’s decision denying the motion
to suppress Poupart’s statement as a violation of
Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602,
16 L.Ed.2d 694 (1966), was not contrary to, or an
unreasonable application of, clearly established
federal law and that, even if an error existed with
respect to the statement was committed, it was
harmless under the standard set forth in Brecht v.
Abrahamson, 506 U.S. 619, 623, 113 S.Ct. 1710,
1714, 123 L.Ed.2d 353 (1993).
A. The state court’s decision denying the
motion to suppress Poupart’s statement as a
violation of Miranda v. Arizona, 384 U.S.
436 (1966), was not contrary to, or an
unreasonable
application
of,
clearly
established federal law.
The
circumstances
surrounding
Poupart’s
statement to Det. Harrison were described during
the Lt. Harrison’s testimony on direct examination
by the prosecutor as follows:
Q: And explain to me what happened in
this case.
A: Once I was notified that he was in
custody, in preparation of doing an
interview I took out one of these
[advisement of rights] forms, filled it out.
When he arrived I went into the
interrogation room, and I read the rights
and asked if he understood and he said
yes. I explained I would like him to
acknowledge his understanding by
initialing and signing. He said he would
rather not sigh.
He said he had
App. 50
representation, he had an attorney, and
he would prefer not to sign anything.
Q: So did you question him at that point?
A: He said he didn’t want to answer any
questions.
Q: So did you ask him any questions?
A: No, what I did was just explain to him
that I wanted to discuss the case with
him, I wanted to lay out what I thought
was the simplicity of the case to him, and
then ask him again if he wanted me to
ask any questions.
Q: At that point did you ask him any
questions?
A: No. No, he said that would be fine. I
could tell him whatever I wanted. . . .
Q: Was it necessary for you to tell him
anything about the C.D. or the pictures
or anything at that point?
A: No.
Q: Why not?
A: The way I saw it, that was basically
irrelevant.
The crime had been
committed, whether he possessed the
pictures or not.
Q: And did he make any statements?
After you told him - - I’m not asking you
everything that he - - that you told him,
because there has been an objection.
After you told him how you perceived the
case, did he make any statements?
A: Yes.
Q: What did he say?
A: He admitted having taken the
pictures, but denied having posted them
on the website. It was at that point that
App. 51
I again reiterated that I didn’t think that
was part of the crime, that the crime had
been committed prior to that, and at that
point he again denied posting the
pictures, but admitted that he had been
at Mike’s bar the week that he ws tried
for the second degree battery.
(St. Ct. Rec. Vol. 2, pp. 254-257).
On direct appeal, Louisiana Fifth Circuit
Court of Appeal addressed petitioner’s claim that
the trial court had erred in denying the motion to
suppress statement as follows:
Defendant argues that after his arrest,
he asserted his right to remain silent.
Nevertheless,
Lieutenant
Harrison
“continued to entice and cajole [him] into
providing information and a statement.”
Therefore, defendant contends his
statement was made in violation of
Miranda and should not have been
admissible at trial.
The State asserts that defendant
voluntarily and intelligently changed his
mind. Thus, defendant's statement was
not in violation of Miranda and was
properly admitted at trial.
The trial court's decision to deny a
motion to suppress is afforded great
weight and will not be set aside unless
the preponderance of the evidence
clearly favors suppression. State v.
Burns, 04–175, p. 5 (La.App. 5 Cir.
6/29/04), 877 So.2d 1073, 1075. A trial
court is afforded great discretion when
App. 52
ruling on a motion to suppress, and its
ruling will not be disturbed absent an
abuse of that discretion. State v. Favors,
09–1034, p. 9 (La.App. 5 Cir. 6/29/10), 43
So.3d 253, 259, writ denied, 10–1761
(La.2/4/11), 57 So.3d 309 (citations
omitted). In determining whether the
trial court's ruling on a motion to
suppress is correct, an appellate court is
not limited to the evidence presented at
the motion to suppress hearing but also
may
consider
pertinent
evidence
presented at trial. Favors, 09–1034 at 9,
43 So.3d at 259.
Before an inculpatory statement made
during a custodial interrogation may be
introduced into evidence,[FN1] the State
must prove beyond a reasonable doubt
that the defendant was first advised of
his Miranda rights, that he voluntarily
and intelligently waived his Miranda
rights, and that the statement was made
freely and voluntarily and not under the
influence of fear, intimidation, menaces,
threats, inducement, or promises. State
v. Franklin, 03–287, p. 4 (La.App. 5 Cir.
9/16/03), 858 So.2d 68, 70, writ denied,
03–3062 (La.3/12/04), 869 So.2d 817. A
statement obtained from the defendant
by direct or implied promises, or by the
exertion of improper influence must be
considered involuntary, and therefore,
inadmissible. State v. Batiste, 06–824, p.
10 (La.App. 5 Cir. 3/13/07), 956 So.2d
626,
634,
writ denied, 07–892
(La.1/25/08), 973 So.2d 751. Whether a
App. 53
defendant's purported waiver of his
Miranda rights was voluntary is
determined by the totality of the
circumstances. Batiste, 06–824, 956
So.2d at 633. The critical factor in a
knowing and intelligent waiver is
whether the defendant was able to
understand the rights explained to him
and voluntarily gave the statement.
Batiste, 06–824, 956 So.2d at 634.
Testimony of the interviewing police
officer alone may be sufficient proof that
a defendant's statements were freely and
voluntarily given. State v. Mackens,
35,350, p. 13 (La.App. 2 Cir. 12/28/01),
803 So.2d 454, 463, writ denied, 02–0413
(La.1/24/03), 836 So.2d 37.
FN1 The United States Supreme
Court
defined
“custodial
interrogation” as the “questioning
initiated by law enforcement
officers after a person has been
taken into custody or otherwise
deprived of his freedom of action
in any significant way.” Miranda
v. Arizona, 384 U.S. at 444, 86
S.Ct. At 1612.
In this case, defendant filed various pretrial motions, including a “Motion to
Suppress the Confession.” At the
suppression hearing, Lieutenant Bruce
Harrison testified that on September 8,
2009, defendant was arrested and taken
into custody. Upon his arrival at the
App. 54
detective's bureau, Lieutenant Harrison
advised defendant of his Miranda rights.
Lieutenant
Harrison
stated
that
defendant refused to waive his rights.
Lieutenant Harrison then told defendant
that he wanted to explain the simplicity
of the case to him, and asked him if he
would be willing to listen. Defendant
agreed to listen. He then told defendant
what the investigation had determined,
and defendant then gave a statement
acknowledging that he took the pictures
and was at the bar at the time the threat
was allegedly made, but denying that he
posted the pictures on the internet.
Lieutenant Harrison testified that he did
not ask defendant any questions or
coerce, intimidate or promise him
anything. Further, since his statement
was not made in connection with any
questioning, the statement was not
recorded.
In support of the motion to suppress,
defense counsel argued that defendant
did not waive his rights, as indicated by
the Rights of Arrestee form that was not
filled out. Further, he specifically told
Lieutenant Harrison that he had a
lawyer, and that he did not want to give
a statement. Nevertheless, Lieutenant
Harrison pressed him and got a
statement out of him. Defense counsel
maintained that if defendant did not
waive his rights, the statement was
unconstitutionally obtained and should
be suppressed.
App. 55
The State argued that defendant made
the statement voluntarily and not in
response to any questioning by the
police. After a hearing on the motion, the
trial court denied defendant's motion to
suppress the statement.
In State v. Taylor, 490 So.2d 459, 461
(La.App. 4 Cir.1986), writ denied, 496
So.2d 344 (La.1986), the Fourth Circuit
held that statements made by the
defendant after he expressed his desire
to remain silent were not taken in
violation of Miranda, as the statements
were the result of the defendant
voluntarily and intelligently changing
his mind. In Taylor, after the defendant
had been read his Miranda rights, he
indicated that he did not want to make a
statement. The detective then explained
to the defendant what the investigation
was going to entail and the defendant
subsequently made a statement. Id., 490
So.2d at 460. The Fourth Circuit stated:
The record shows that defendant
understood his right to remain silent,
that [the detective] did not brow beat
him, and that no undue pressure was
applied. A few minutes after he declined
to talk about the robberies defendant
voluntarily and intelligently changed his
mind and decided he would talk.
The Fourth Circuit concluded that the
defendant's statements were not taken
in violation of Miranda and were
properly admitted into evidence, citing
App. 56
State
v.
Daniel, 378 So.2d 1361
(La.1979). Taylor, 490 So.2d at 461.
In Daniel, supra, the Louisiana
Supreme Court found the defendant's
statement was not made in violation of
Miranda. In that case, after the
defendant was informed of his Miranda
rights, he gave an indecisive negative
response when asked if he wanted to
make a statement. The officer then told
the defendant, “[B]efore you make up
your mind one way or the other as to
whether or not you want to talk to us, let
me tell you what we've got.” After the
officer gave defendant this information,
defendant made a statement. The
Louisiana Supreme Court stated:
On these facts[,] we believe the
trial judge should have denied the
motion to suppress. Nothing in
Miranda prevents an accused
party from changing his mind and
giving a statement after he has
previously declined to do so, so
long as the statement is voluntary
and intelligently made.
Daniel, 378 So.2d at 1366.
The facts of both Taylor and Daniel are
similar to this case. The record in this
case shows that defendant initially
indicated that he did not want to waive
his rights and make a statement.
Lieutenant Harrison then told defendant
that he wanted to explain the case to him
App. 57
and defendant agreed to listen.
Defendant then changed his mind and
made
a
voluntary
statement.
Accordingly, we find that defendant's
statement was not made in violation of
Miranda, and thus, the trial court did not
err in denying defendant's motion to
suppress.
State v. Poupart, 11-710 (La. App. 5 Cir. 2/28/12)
88 So.3d 1132, 1140-1142.
As recognized in the Report and
Recommendation adopted by the United States
District Court Judge, the state court correctly
determined that the clearly established federal law
with respect to the claim is Miranda. In Miranda,
the United States Supreme Court held:
[T]he prosecution may not use
statements, whether exculpatory or
inculpatory, stemming from custodial
interrogation of the defendant unless it
demonstrates the use of procedural
safeguards effective to secure the
privilege against self-incrimination. By
custodial interrogation, we mean
questioning initiated by law enforcement
officers after a person has been taken
into custody or otherwise deprived of his
freedom of action in any significant way.
As for the procedural safeguards to be
employed, unless other fully effective
means are devised to inform accused
persons of their right of silence and to
assure a continuous opportunity to
exercise it, the following measures are
App. 58
required. Prior to any questioning, the
person must be warned that he has a
right to remain silent, that any
statement he does make may be used as
evidence against him, and that he has a
right to the presence of an attorney,
either retained or appointed.
The
defendant may waive effectuation of
these rights, provided the waiver is made
voluntarily, knowingly and intelligently.
If, however, he indicates in any manner
and at any stage of the process that he
wishes to consult with an attorney before
speaking there can be not questioning.
Likewise, if the individual is alone and
indicates in any manner that he does not
wish to be interrogated, the police may
not question him. The mere fact that he
may have answered some questions or
volunteered some statements on his own
does not deprive him of the right to
refrain from answering any further
inquiries until he has consulted with an
attorney and thereafter consents to be
questioned.
Miranda, 384 U.S. 444-45 (footnote omitted).
In Michigan v. Mosley, 423 U.S. 96, 104, 96
S.Ct. 321, 46 L.Ed.2d 313 (1975)(footnote omitted),
the United States Supreme Court subsequently
concluded:
A reasonable and faithful interpretation
of the Miranda opinion must rest on the
intention of the Court in that case to
adopt “fully effective means . . . to notify
App. 59
the person of his right of silence and to
assure that the exercise of the right will
be scrupulously honored . . . “ 384 U.S.,
at 479, 86 S.Ct., at 1630. The critical
safeguard identified in the passage at
issue is a person's “right to cut off
questioning.” Id., at 474, 86 S.Ct., at
1627. Through the exercise of his option
to terminate questioning he can control
the time at which questioning occurs, the
subjects discussed, and the duration of
the interrogation. The requirement that
law enforcement authorities must
respect a person's exercise of that option
counteracts the coercive pressures of the
custodial setting. We therefore conclude
that the admissibility of statements
obtained after the person in custody has
decided to remain silent depends under
Miranda on whether his “right to cut off
questioning”
was
“scrupulously
honored.”
As this Court has explained, in Mosley, the
United States Supreme Court found four factors
present in the case to be probative in determining
if the defendant's right to remain silent was
scrupulously honored: (1) whether the suspect was
advised prior to initial interrogation that he was
under no obligation to answer question; (2)
whether the suspect was advised of his right to
remain silent prior to the reinterrogation; (3) the
length of time between the two interrogations; (4)
whether the second interrogation was restricted to
a crime that had not been the subject of earlier
App. 60
interrogation; and (5) whether the suspect's first
invocation of rights was honored. U.S. v. AlvaradoSaldivar, 62 F.3d 697 (1995). However, United
States Supreme Court has not issued a bright-line
test for determining when police were scrupulous
in honoring suspects’ rights, and courts must
evaluate the facts of each case to determine if the
resumption of police interrogation ws consistent
with scrupulous observance of the right to cut off
questioning. U.S. v. Alvarado-Saldivar, 62 F.3d
697, 699 (1995); citing Wilcher v. Hargett, 978 F.2d
872, 877 (5th Cir. 1992).
In the instant case, Report and
Recommendation adopted by the United States
District Court Judge reflects an analysis of the
state court’s decision pursuant to a the highly
deferential standard of review mandated by the
AEDPA:
The admissibility of a confession is a
mixed question of law and fact. Miller v.
Fenton, 474 U.S. 104, 112 (1985);
ShisInday v. Quarterman, 511 F.3d 514,
522 (5th Cir. 2007). Therefore, under the
AEDPA, a federal habeas court must
defer to the state court's decision on such
a claim, unless that decision was
“contrary to, or involved an unreasonable
application of, clearly established
Federal law, as determined by the
Supreme Court.” 28 U.S.C. § 2254(d)(1);
Barnes v. Johnson, 160 F.3d 218, 222
(5th Cir. 1998). And, as previously
explained, “an unreasonable application
is different from an incorrect one.” Bell v.
Cone, 535 U.S. 685, 694 (2002).
App. 61
Accordingly, the mere fact that the state
court may have misapplied Supreme
Court precedent would not warrant
habeas relief. Puckett v. Epps, 641 F.3d
657, 663 (5th Cir. 2011) (“Importantly,
‘unreasonable’ is not the same as
‘erroneous' or ‘incorrect’; an incorrect
application of the law by a state court
will nonetheless be affirmed if it is not
simultaneously unreasonable.”).
Although the issue is arguably close, the
undersigned concludes that the state
court's decision was not unreasonable.
Here, the Miranda warnings were in fact
given. Although petitioner stated that he
did not wish to make a statement after
being advised of his rights, he
nevertheless agreed to hear what
Harrison had to say about the case. After
listening to Harrison, petitioner opted to
make the statements in question, and
there is no suggestion that he was in any
way coerced or forced to do so. Although
the Miranda warnings were not repeated
after petitioner changed this mind, that
event was apparently close in time to
when the warnings were initially given.
This set of facts is sufficiently
distinguishable from either Miranda or
Mosely so as to afford the state court a
measure of discretion in weighing the
various factors and in assessing the
voluntariness of the statements. Simply
put: Although reasonable jurists could
perhaps disagree on the correctness of
the state court's ultimate conclusion,
App. 62
that conclusion was not objectively
unreasonable and, therefore, this Court
should defer to the finding that there
was no constitutional violation.
ROA.17-30411.310.
The
respondent-appellee
respectfully
submits that the United States District Court
Judge did not err in determining that the state
district court’s judge was neither contrary to, nor
involved an unreasonable application of, clearly
established Federal law, as determined by the
Supreme Court.
B. Even assuming arguendo an error existed
with respect to the admission of the
statement it was harmless
The admission of an involuntary statement
is a trial error subject to harmless error analysis.
Arizona v. Fulminante, 499 U.S. 279, 310 (1991).
In the instant case, any error in the admission of
the defendant’s brief, oral statement was harmless
as it did not have a “substantial and injurious
effect or influence in determining the jury’s
verdict.” Brecht v. Abrahamson, 507 U.S. 619, 113
S.Ct. 1710, 123 L.Ed.2d 353 (1993). Poupart was
actually charged with and convicted of public
intimidation, a violation of LSA-R.S. 14:22. This
offense consisted in the use of force or threats upon
Detective Higgerson with the specific intent to
influence his conduct as a public officer or as a
witness. Poupart communicated to Mr. Baratini
that it was in Detective Higgerson’s interest not to
go to court (to testify in the Poupart’s battery trial)
App. 63
because Poupart “had pictures of a girl that he was
going to go public with” and told Mr. Baratini to
“pass the information on to” Detective Higgerson.
State v. Poupart, 11-KA-710, pp. 9-11 (La. App. 5
Cir. 2/28/12) 88 So.3d 1132. Mr. Baratini conveyed
Poupart’s message and Detective Higgerson
testified that he took this as a threat. Id. These
facts established the commission of the offense.
According to Detective Harrison’s trial
testimony, the defendant “admitted having taken
the pictures, but denied having posted them on the
website . . . and admitted that he had been at
Mike’s Bar the week that he was tried for the
second degree battery.” Poupart’s admission that
he took the photographs was harmless as the state
was not required to prove that Poupart took the
photographs. Moreover, the State independently
established possessed the photographs - a disc
containing the two relevant photographs and
printed copies of the photographs (inside of which
were folded a copy of the defendant’s arrest
register in the battery case) were recovered from
Poupart’s residence during the execution of a
search warrant. State v. Poupart, 11-KA-710, p. 6
(La. App. 5 Cir. 2/28/12) 88 So.3d 1132.
Additionally with regard to Poupart’s presence at
Mike’s Bar the week before he was tried for the
second degree battery, this information was
cumulative of the testimony of Mr. Barattini and
Mr. Massel. Moreover, it should be noted that the
fact that Poupart went to Mike’s Bar in the days
before the trial on the second degree battery charge
was not disputed at trial. Defense counsel conceded
in opening statement that Poupart had done so
with the purpose of buying D.J. lights from Mr.
Barattini. (St. Ct. Rec. Vol. 1, pp. 183, 187).
App. 64
Based on the foregoing, the respondentappellee respectfully submits that, assuming the
admission of the statements was erroneous, any
error was harmless under the Brecht standard.
CONCLUSION
Based upon the foregoing, the RespondentAppellee prays that this Honorable Court affirm
the denial of federal habeas corpus relief in this
case.
Respectfully Submitted,
/s/ Juliet Clark
JULIET CLARK
BAR ROLL NO. 23451
ASSISTANT DISTRICT ATTORNEY
DISTRICT ATTORNEY'S OFFICE
200 DERBIGNY STREET
GRETNA, LOUISIANA 70053
(504) 368-1020
App. 65
CERTIFICATE OF SERVICE
I do hereby certify that on May 18, 2018, I
electronically filed the foregoing complete and
legible brief with the Clerk of Court by using the
CM/ECF system, which shall result in service
through electronic means upon the following
counsel forthe Petitioner-Appellant:
Justin Caine Harrell, Esq.
1100 Poydras Street
Suite 2900
New Orleans, Louisiana 70163
by delivery via the CM/ECF system to counsel’s
registered e-mail address. Two copies of the brief
are also being served upon aforementioned counsel
by placing same in the United States Mail, postage
pre-paid, on this date.
/s/ Juliet Clark
JULIET CLARK
BAR ROLL NO. 23451
ASSISTANT DISTRICT ATTORNEY
DISTRICT ATTORNEY'S OFFICE
200 DERBIGNY STREET
GRETNA, LOUISIANA 70053
(504) 368-1020
App. 66
CERTIFICATE OF COMPLIANCE WITH RULE
32(a)
Certificate of Compliance with Type-Volume
Limitation, Typeface Requirements, and Type
Style Requirements
1. This brief complies with the type-volume
limitation of FED.R. App. P. 32(a) (7) (B) because:
X
this brief contains
words, excluding the
parts of the brief exempted by FED.R. App. P. 32(a)
(7) (B) (iii), or
this brief uses a monospaced typeface and
contains________ lines of text, excluding the parts
of the brief exempted by FED. R. App. P. 32(a) (7)
(B) (iii).
2.
This brief complies with the typeface
requirements of FED. R. App. P. 32(a) (5)
and the type style requirements of FED. R. App. P.
32(a) (6) because:
X
this brief has been prepared in a
proportionally spaced typeface using WordPerfect
11 in Times New Roman, Font Size 14, or
this brief has been prepared in a
monospaced
typeface
using
_____________________with__________________.
/s/ Juliet L. Clark
Juliet L. Clark
Attorney for: Timothy Hooper, Warden
Dated: May 18, 2018
App. 67
IN THE UNITED STATES COURT OF
APPEALS FOR THE FIFTH CIRCUIT
Case No. 17-30411
PAUL POUPART,
Petitioner - Appellant
v.
HOWARD PRINCE, WARDEN, ELAYN HUNT
CORRECTIONAL CENTER,
Respondent - Appellee
__________
Appeal from the United States District Court for
the Eastern District of Louisiana New Orleans,
Louisiana (U.S.D.C. No. 2:15-cv-01340-SM)
REPLY BRIEF
JUSTIN CAINE HARRELL, ESQ.
Attorney for Petitioner—Appellant
LSBA 31471
1100 Poydras Street, Suite 2900
New Orleans, Louisiana 70163
504-585-7329
504-324-0145 facsimile
App. 68
TABLE OF CONTENTS
TABLE OF AUTHORITIES
3
INTRODUCTION
4
ARGUMENT
5
CONCLUSION
11
CERTIFICATE OF SERVICE
12
CERTIFICATE OF COMPLIANCE
13
App. 69
TABLE OF AUTHORITIES
Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602,
16 L. Ed. 2d 694 (1966)
5-6
Arizona v. Fulminante, 499 U.S. 279, 111 S. Ct.
1246, 113 L.Ed.2d 302 (1991)
8-9
Bruton v. United States, 391 U.S. 123, 20 L. Ed. 2d
476, 88 S. Ct. 1620 (1968)
8
Hebert v. Cain, 121 Fed. Appx. 43 (5th Cir. 2005)
(unpublished)
7
Hopt v. Utah, 110 U.S. 574, 28 L. Ed. 262, 4 S. Ct.
202 (1884)
8-9
Michigan v. Mosley, 423 U.S. 96, 96 S. Ct. 321, 46
L. Ed. 2d 313 (1975)
6
Murray v. Earle, 405 F.3d 278 (5th Cir. 2005)
8-9
Soffar v. Cockrell, 300 F.3d 588 (5th Cir. 2002)
6
United States v. Alvarado-Saldivar, 62 F.3d 697
(5th Cir. 1995)
7
App. 70
INTRODUCTION
In granting Appellant’s Application for
Certificate of Appealability, this honorable Court
concluded that the state court “failed to apply the
relevant factors used to determine the
admissibility of a defendant’s statements to law
enforcement made after he has invoked his right to
counsel and to remain silent.” Specifically, this
Court noted that “law enforcement failed to
‘scrupulously honor’” Appellant’s “unequivocal
invocation of his right to counsel at interrogation.”
Additionally, this Court determined that
Petitioner
“demonstrate[d]
that…reasonable
jurists could debate whether presenting the jury
with his own admission of facts critical to the
prosecution’s case was not harmless.”
In its Brief, Respondent simply reiterates
the Magistrate and District Court’s rulings,
averring that the “District Court did not err in
determining that the state district court’s
judg[ment] was neither contrary to, nor involved
an unreasonable application of clearly established
Federal law….” Respondent’s argument on this
issue failed to expand beyond the clearly erroneous
findings of the District Court and cannot refute
this Court’s previous pronouncement that
Petitioner’s “statements were inadmissible.” As it
concerns the harmless error prong of Appellant’s
claim, Respondent maintains that the wrongful
admission of Appellant’s custodial statements—
admitting that he took the subject photographs
and was at Mike’s Place the week prior to trial in
his Second-Degree Battery case—was harmless as
the State was not required to prove who took the
App. 71
photographs and Petitioner’s admission to being
present at Mike’s Place was merely cumulative.
Respondent’s arguments are unpersuasive.
There can be no salient doubt that Appellant
properly and unequivocally invoked his right to
remain silent and to counsel, that his invocation
was flagrantly and immediately ignored, and that
his will to remain silent was overborne by JPSO
Lieutenant
Bruce
Harrison’s
loquacious
description of the wealth of the evidence against
him. Furthermore, Appellant’s involuntary
admission to taking the prurient photographs—
while not strictly speaking an element of the
State’s case—was nevertheless powerful evidence
of motive, intent, planning, and preparation while
Appellant’s statement to being at the bar severely
circumscribed and unduly handicapped the
defenses available at trial, having an injurious
effect on the jury.
ARGUMENT
The law respecting a criminal suspect’s
right to remain silent has been settled for over 50
years. Prior to any custodial questioning, a suspect
“must be warned that he has a right to remain
silent…” Miranda v. Arizona, 384 U.S. 436, 444; 86
S. Ct. 1602; 16 L. Ed. 2d 694 (1966). A defendant
“may waive effectuation of these rights,” if he or
she subsequently “indicates in any manner and at
any stage of the process that he wishes to consult
with an attorney before speaking there can be not
questioning.” Ibid. at 444-445. A suspect’s “right to
cut off questioning” has been called a “critical
safeguard” allowed for a suspect in custody to
“control the time at which questioning occurs, the
App. 72
subjects discussed, and the duration of the
interrogation.” Michigan v. Mosley, 423 U.S. 96, 96
S. Ct. 321, 46 L. Ed. 2d 313 (1975). This
unequivocal right is necessary to “counteract[ ] the
coercive pressures of the custodial setting.” Ibid. at
104. Once warnings are given, if a suspect
“indicates in any manner, at any time prior to or
during questioning, that he wishes to remain
silent, the interrogation must cease.” Soffar v.
Cockrell, 300 F.3d 588, 593 (5th Cir. 2002); citing
Miranda, 384 U.S. at 473-74.
This Court has recognized several factors
necessary in the analysis of reinterrogation cases:
whether police immediately ceased initial
interrogation upon the suspect’s request; whether
questioning was resumed after a “significant
period of time” usually defined as “an interval of
more than two hours”; whether a “fresh set of
warnings” was provided; and whether the topic of
the second interrogation was a different crime;
whether the suspect’s first invocation of rights was
honored; and whether “the suspect was advised
prior to initial interrogation that he was under no
obligation to answer questions.” United States v.
Alvarado-Saldivar, 62 F.3d 697, 699 (5th Cir.
1995); see also e.g., Hebert v. Cain, 121 Fed. Appx.
43 (5th Cir. 2005) (unpublished).
As noted in Appellant’s Brief, shockingly
only one of these factors weights in Respondent’s
favor: thankfully, Appellant was initially advised
of his rights. However, after his clear and
unequivocal invocation of his right to silence and
right to counsel at questioning, Lt. Harrison
wasted exactly no time in continuing to interrogate
Appellant by describing the mountains of evidence
accumulated by law enforcement and the grim
App. 73
predicament faced by Appellant at trial. Lt.
Harrison’s recitation of the State’s version of the
facts was so specifically and unquestionably
targeted at overwhelming Appellant’s invocation of
silence and coercing Appellant’s statement that it
any
distinction
between
Lt.
Harrison’s
“questioning” and his “speaking” is purely illusory.
Moreover, when Appellant was amply persuaded
to withdraw his previous request, he was not
provided a fresh set of warnings nor was
questioning limited to topics not previously elicited
during the first aborted questioning. Appellant’s
first invocation of rights was not honored and
Appellant was never advised prior to his initial
interrogation that he was under no obligation to
answer questions.
Respectfully, this Court’s February 21, 2018
Order granting Appellant a Certificate of
Appealability appears to admit of no cogent debate
on this issue: Pursuant to this Court, the factors
outlined in Alvarado-Saldivar and its progeny
“weigh in [Appellant’s] favor” and his statements
to Lt. Harrison “were inadmissible because law
enforcement failed to ‘scrupulously honor’ his
unequivocal invocation of his right to counsel at
interrogation, instead continuing to talk to him
about the case against him until he provided
incriminating
statements.”
Consequently,
Appellant respectfully avers that this Court has
appropriately concluded that Petitioner’s Fifth
Amendment rights were violated during his
custodial
interrogation
and
nothing
in
Respondent’s rote recital of the District Court’s
ruling should persuade this Court otherwise.
“[A] voluntary confession the most
damaging form of evidence.” Murray v. Earle, 405
App. 74
F.3d 278, 295 (5th Cir. 2005); citing Bruton v.
United States, 391 U.S. 123, 140, 20 L. Ed. 2d 476,
88 S. Ct. 1620 (1968). It “is not like other evidence”
and has been called “the most probative and
damaging evidence that can be admitted against a
defendant.” Arizona v. Fulminante, 499 U.S. 279,
111 S. Ct. 1246, 113 L.Ed.2d 302 (1991). When a
confession is deemed to be voluntary and untainted
by coercive police procedures, it is doubly probative
as “it is presumed to flow from the strongest sense
of guilt.” Hopt v. Utah, 110 U.S. 574, 584-85; 28 L.
Ed. 262; 4 S. Ct. 202 (1884). A confession can be “so
biasing that juries will convict on the basis of
confession alone.” Murray, 405 F.3d at 295.
Accordingly, “the risk that the confession is
unreliable, coupled with the profound impact that
the confession has upon the jury, requires a
reviewing court to exercise extreme caution before
determining that the admission of the confession
at trial was harmless.” Fulminante, 499 U.S. at
296.
The harmful nature of Appellant’s
confession can, in the first instance, be inferred
simply by its use at trial. Unless Respondent is
willing to concede to the deliberate admission of
superfluous or otherwise “cumulative” evidence,
then the introduction of Appellant’s confession
must have served a significant probative purpose.
It corroborated critical portions of the State’s
narrative, namely that Appellant took the bawdy
photographs at issue and presented himself at
Mike’s Place at a time consistent with the State’s
chronology and the alleged threat. Moreover, it
placed, coming directly from Appellant’s own
mouth, elements of the offense charged against
him. It helped to establish opportunity, intent,
App. 75
preparation, plan, knowledge, and the absence of
coincidence. It made the link between Appellant
and the lewd photographs more pointed. It made
Appellant unwillingly serve as a prosecution
witness. It decimated Appellant’s unequivocal
right to remain silent.
That Appellant’s trial attorney provisionally
placed Appellant at Mike’s Place during counsel’s
opening argument in no way negates the damage
caused by the admission of Appellant’s involuntary
statement. For starters, it is axiomatic that
opening statements are not evidence. Thus, the
only “concession” that Appellant visited Mike’s
Place prior to his battery trial came not from
counsel’s allocutions but from the admission into
evidence of Appellant’s statement to Lt. Harrison.
Second, counsel was no doubt compelled to explain
his client’s presence at Mike’s Place precisely
because the State had in its possession the coerced
confession of Appellant placing himself at the bar,
making this a tail-that-wags-the-dog scenario. The
testimony of Michael Baratinni and Arthur Massel
placing Appellant at the bar could not fairly be
disputed nor the State held to their burden of proof
where the State had in its arsenal the provoked,
coerced, and involuntary statements of Appellant.
Counsel’s comments in opening were rather more
a parry than an uppercut.
Consequently, the admission of Appellant’s
coerced statements to Lt. Harrison were not
harmless and the District Court’s judgment
denying Habeas relief should be reversed.
CONCLUSION
App. 76
Petitioner did exactly what he was supposed
to, what any citizen should do if wary or reluctant
to speak with law enforcement during a custodial
interrogation: he clearly and succinctly invoked his
Fifth Amendment Right to silence. But Appellant’s
inquisitor was not to be dissuaded. Contrary to all
law and decency, Lt. Harrison proceeded, trying a
different tact to wear down Appellant’s silence: He
baited Appellant; he goaded Appellant. He gave a
dissertation on the evidence against Appellant
from the State’s perspective and drew Appellant
into a discussion of the facts of the case against
Appellant’s will. The violation of Appellant’s rights
is clear, it’s consequence unavoidable.
The violation of Appellant’s right is also
harmful. The evidence involuntarily elicited and
admitted at trial placed Appellant at Mike’s Place
at a time consistent with witnesses’ account of
Appellant’s alleged threat. It thwarted any defense
that Appellant was not there, that the witnesses
were mistaken, or that the State’s witnesses
colluded with law enforcement in a concerted effort
to besmirch Appellant’s character in retaliation for
his exercise of free speech. It rendered Appellant
an unwitting witness for the State. It robbed him
of his right to remain silent and force the State to
prove each element of the offense beyond a
reasonable doubt. In conjunction with Appellant’s
confession to taking the photographs, Appellant’s
involuntary statements helped to establish intent,
opportunity, preparation, and plan. It had a
substantial and injurious influence on the jury’s
deliberations and verdict. It was the death knell of
Appellant’s defense and his right to a fair trial.
Consequently, the District Court erred in
adopting
the
Magistrate’s
Report
and
App. 77
Recommending and denying Appellant Habeas
relief.
H2 LAW, LLC
Date: December 30, 2018
By: /s/ Justin Caine Harrell
JUSTIN CAINE HARRELL, ESQ.
LSBA 31471
Attorneys for Paul Poupart
1100 Poydras Street, Suite 2900
New Orleans, Louisiana 70163
504-585-7329
504-324-0145 facsimile
App. 78
CERTIFICATE OF SERVICE
I certify that that on Sunday, December 30,
2018, a copy of the above and foregoing was filed
electronically with the Clerk of Court using the
CM/ECF system. A paper copy of the foregoing was
also served upon the District Attorney’s Office,
Juliet L. Clark, District Attorney's Office, Parish of
Jefferson, 200 Derbigny St., Gretna, LA 70053,
jclark@jpda.us.
By: /s/ Justin Caine Harrell
JUSTIN CAINE HARRELL, ESQ.
LSBA 31471
Attorneys for Paul Poupart
1100 Poydras Street, Suite 2900
New Orleans, Louisiana 70163
504-585-7329
504-324-0145 facsimile
App. 79
CERTIFICATE OF COMPLIANCE
I certify that the foregoing Appellant’s Brief
is in compliance with the limitations imposed by
Federal Rules of Appellant Procedure and the
Local Rules of this Court. The instant brief consists
of 9 pages and 1,787 words, exclusive of the table
of contents and certificates of service and
compliance.
By: /s/ Justin Caine Harrell
JUSTIN CAINE HARRELL, ESQ.
LSBA 31471
Attorneys for Paul Poupart
1100 Poydras Street, Suite 2900
New Orleans, Louisiana 70163
504-585-7329
504-324-0145 facsimile
App. 80
IN THE UNITED STATES COURT OF
APPEALS FOR THE FIFTH CIRCUIT
No. 17-30411
PAUL POUPART,
Petitioner−Appellant,
versus
TIMOTHY HOOPER, Warden; ELAYN HUNT
CORRECTIONAL CENTER,
Respondent−Appellee.
Appeal from the United States District Court for
the Eastern District of Louisiana No. 2:15-CV1340
Before HIGGINBOTHAM, SMITH, and GRAVES,
Circuit Judges. PER CURIAM:
Paul Poupart appeals the dismissal of his
habeas corpus petition brought under 28 U.S.C. §
2254. He seeks post-conviction relief from a state
conviction for public intimidation. Poupart claims
he was interrogated in violation of Miranda v.
Arizona, 384 U.S. 436 (1966), asserting that
interrogation persisted after he had invoked his
right to counsel and had declined to answer
questions. The federal district court denied habeas
App. 81
relief, finding that the decisions of the state courts
were not unreasonable under the Antiterrorism
and Effective Death Penalty Act of 1996 and that
any error was harmless.
AFFIRMED.
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.