Opposition Brief — Willie Carl Jones, Petitioner v. Darrel Vannoy, Warden

Supreme Court briefSep 30, 2019

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No. 18-9571

In the Supreme Court of the United States

Willie Carl Jones, Jr.,

Petitioner

vs.

Daniel Vannoy, Warden, Louisiana State Penitentiary,

Respondent

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

BRIEF IN OPPOSITION

BY THE STATE OF LOUISIANA

JEFF LANDRY

Attorney General

ELIZABETH BAKER MURRILL*

Solicitor General,

*Counsel of Record

MICHELLE WARD GHETTI

Deputy Solicitor General

JOSIAH M. KOLLMEYER

Assistant Solicitor General

Louisiana Department of Justice

1885 N. Third St.

Baton Rouge, LA 70804

(225) 326-6028

HILLAR MOORE

District Attorney

STACY WRIGHT

Assistant District Attorney

East Baton Rouge Parish

222 St. Louis Street, Ste.550

Baton Rouge, LA 70802

(225) 389-3400

QUESTIONS PRESENTED

The State submits that, after correcting erroneous legal and factual assertions

in petitioner’s questions, the proper questions presented are these:

1) Whether the petitioner has established a Fourth Amendment violation where

the state courts found the search of his car to be reasonable, and if so, is the

violation sufficient to overcome both AEDPA’s demanding standards and the

limitations of Fourth Amendment habeas relief established by Stone v. Powell,

428 U.S. 465 (1976)?

2) Whether the petitioner has established a violation of his right to trial by an

impartial jury where a state court found that the jury was not improperly

influenced?

3) Whether petitioner has established that the evidence at trial was insufficient

to convict him, in light of AEDPA’s twice-deferential standard for such a

challenge and where numerous courts have concluded otherwise?

4) Whether petitioner can point to any specific actions by prosecutors that

violated Supreme Court precedent, as required by AEDPA, 28 U.S.C. §

2254(d)(1), when prosecutors did not introduce false testimony or improperly

interact with any witnesses?

5) Whether petitioner has established that his trial counsel provided ineffective

assistance by failing to object to the indictments and to ask for a continuance,

in light of the deference due to trial counsel’s strategic decisions under both

AEDPA and Strickland v. Washington, 466 U.S. 668 (1984)?

iii

TABLE OF CONTENTS

QUESTIONS PRESENTED .......................................................................................... ii

TABLE OF CONTENTS ............................................................................................... iv

TABLE OF AUTHORITIES .......................................................................................... v

INTRODUCTION .......................................................................................................... 1

STATEMENT OF THE CASE....................................................................................... 3

THE MURDERS AND INVESTIGATION ....................................................................... 3

II. THE TRIAL AND DIRECT APPEAL ............................................................................ 4

III. POST-CONVICTION PROCEEDINGS .......................................................................... 6

REASONS FOR DENYING THE PETITION .............................................................. 8

PETITIONER’S FOURTH AMENDMENT CLAIM BASED ON THE DENIAL OF HIS

MOTION TO SUPPRESS IS MERITLESS, TIED TO THE FACTS OF THIS CASE, AND

UNWORTHY OF REVIEW. ......................................................................................... 9

II. PETITIONER’S SIXTH AMENDMENT CLAIM THAT THE JURY WAS TAINTED IS

SPECIFIC TO HIS CASE AND BASED ON FACTUAL CLAIMS CONTRARY TO

FINDINGS BY THE STATE COURT ........................................................................... 12

III. PETITIONER’S DUE PROCESS CLAIMS BASED ON A LACK OF SUFFICIENT

EVIDENCE ARE SPECIFIC TO HIS CASE, BASED ON AN ERROR OF LAW, AND

MERITLESS ........................................................................................................... 14

IV. PETITIONER’S DUE PROCESS CLAIMS BASED ON PROSECUTORIAL MISCONDUCT

MISCHARACTERIZE THE TRIAL PROCEEDINGS AND RAISE NO ISSUES WORTHY OF

REVIEW BY THIS COURT ....................................................................................... 17

a. Amber Thorn’s testimony was not false ........................................................ 17

b. Brian Griffith’s testimony was not false, and petitioner only raises a factspecific claim not worthy of review ................................................................ 18

c. Petitioner can show no Constitutional violation with regard to witnesses

who were not present ..................................................................................... 20

d. Benito Vasquez’s testimony was not improperly bolstered. ......................... 21

V. PETITIONER’S INEFFECTIVE ASSISTANCE OF COUNSEL CLAIMS RAISE NO NOVEL

ISSUES OF LAW, ARE FACT-SPECIFIC, AND FAIL ON THE MERITS UNDER

STRICKLAND V. WASHINGTON. ............................................................................. 24

CONCLUSION............................................................................................................. 27

TABLE OF AUTHORITIES

Cases

Campbell v. Louisiana, 523 U.S. 392, 399 (1998)....................................................... 24

Cavazos v. Smith, 565 U.S. 1, 11 (2011) ....................................................................... 2

Emerson v. Thiel Coll., 296 F.3d 184, 190 n.5 (3rd Cir. 2002) ................................... 23

Estelle v. McGuire, 502 U.S. 62, 67 (1991) .................................................................. 25

Fiore v. White, 531 U.S. 225, 228–29 (2001). .............................................................. 15

Harmon v. Sharp, No. 16-6360, ___ F.3d ___, 2019 ................................................... 23

Herrera v. Collins, 506 U.S. 390, 402 (1993) .............................................................. 15

Hurtado v. California, 110 U.S. 516 (1884) ................................................................ 25

Jackson v. Virginia, 443 U.S. 307, 319 (1979) .................................................. 8, 15, 16

Jones v. Cain, No. CV 14-2734, 2017 WL 4324540 (W.D. La. Sept. 28, 2017) ............ 7

Jones v. State, 2013-2344 (La. 5/2/14), 138 So.3d 1242 ................................................ 7

Jones v. Vannoy, No. 17-30861 (5th Cir. 2018)......................................................... 7, 8

Kimmelman v. Morrison, 477 U.S. 365, 382–83 (1986).............................................. 11

Martin v. Blessing, 134 S. Ct. 402, 405 (2013) ............................................................. 1

Maryland v. Garrison, 480 U.S. 79, 84 (1987) ...................................................... 10, 11

McGhee v. Watson, 900 F.3d 849, 853 (7th Cir. 2018) ................................................ 23

Oliver v. Quarterman, 541 F.3d 329, 342 (5th Cir. 2008) .......................................... 14

Parker v. Matthews, 567 U.S. 37, 43 (2012) ................................................................ 17

Rudolph v. United States, 370 U.S. 269, 270 (1962) .................................................... 2

Rushen v. Spain, 464 U.S. 114, 120 (1983) ................................................................. 14

State v. Jones, 2012-0147 (La. 5/4/12), 88 So.3d 462 .................................................... 6

State v. Jones, 81 So.3d 236, 239 (La. App. 2d Cir. 2011) .................................. passim

State v. Lewis, 2009-1404 (La. 10/22/10), 48 So. 3d 1073, 1076 ................................... 5

Stone v. Powell, 428 U.S. 465 (1976) ................................................................... ii, 8, 11

Swarthout v. Cooke, 562 U.S. 216, 219 (2011) ............................................................ 25

United States v. Lewis, 10 F.3d 1086, 1089 (4th Cir. 1993) ....................................... 24

United States v. Prout, 526 F.2d 380, 388 (5th Cir. 1976) ......................................... 10

United States v. Young, 470 U.S. 1, 17 (1985) ............................................................ 22

Vasquez v. United States, 454 U.S. 975, 977 (1981) ..................................................... 2

Yohey v. Collins, 985 F.2d 222, 224–25 (5th Cir. 1993) ............................................... 7

Young v. Trombley, 435 F. App’x 499, 505 (6th Cir. 2011)......................................... 14

Zimmermann v. United States Nat’l Labor Relations Bd.,

749 F. App’x 148, 150 (3d Cir. 2019) ...................................................................... 23

Statutes

28 U.S.C. § 2254(d) ........................................................................................................ 9

28 U.S.C. § 2254(d)(1) .................................................................................................... ii

28 U.S.C. § 2254(e)(1) .................................................................................................... 9

Other Authorities

E. Gressman, K. Geller, S. Shapiro, T. Bishop, & E. Hartnett, Supreme Court Practice

§ 5.12(c)(3), p. 351 (9th ed. 2007) ............................................................................... 2

Rules

Supreme Court Rule 10 ........................................................................................... 2, 16

Supreme Court Rule 10(a), (b) ...................................................................................... 2

Supreme Court Rule 10(c) ............................................................................................. 2

vii

INTRODUCTION

Petitioner Willie Carl Jones was convicted of two counts of second-degree

murder in 2010. He was the last person seen alive with both of the two victims, and

he had previously engaged in drug activity with both of them. He was placed in the

location of both murders by cell phone records, and statements from two witnesses

asserted that he had confessed to the crimes. Bullets found in his car were consistent

with those used to kill the victims. In spite of the overwhelming circumstantial

evidence, petitioner has since sought to overturn his conviction on both direct appeal

and in post-conviction proceedings. He has filed scattershot petitions that raise

numerous issues, but issues that are fact-specific and resolvable only by looking at

the details of petitioner’s individual case. Having failed in state courts of all levels, in

federal district court, and in the Fifth Circuit on the precise claims advanced here, he

now asks this court for relief.

But the questions presented by his petition are, in fact, simple allegations of

error by the lower courts in applying established rules of law. Petitioner has failed to

present any real constitutional questions at all, instead stating vague, high-level

constitutional principles and arguing that they were wrongly applied in this case. The

questions presented in this petition are not broadly applicable questions of

constitutional law. They amount to requests for error correction in Jones’s particular

case. But the Supreme Court is “not a court of error correction.” Martin v. Blessing,

134 S. Ct. 402, 405 (2013) (Statement of Alito, J., respecting the denial of certiorari);

see Cavazos v. Smith, 565 U.S. 1, 11 (2011) (Ginsburg, J., dissenting) (quoting E.

Gressman, K. Geller, S. Shapiro, T. Bishop, & E. Hartnett, Supreme Court Practice §

5.12(c)(3), p. 351 (9th ed. 2007)). None of the questions presented demonstrates a split

in authority between circuit courts. See Supreme Court Rule 10(a), (b). Petitioner

does not even examine the detailed facts of any other circuit case in an attempt to

show such a conflict. None of the questions raises a novel issue of law that requires

decisive settling by this Court. See Supreme Court Rule 10(c). Instead, Jones’s

challenges are very specific to his case, and many of them involve factual issues that

are particularly unsuited for Supreme Court review. See Supreme Court Rule 10

(allegations of “erroneous factual findings or the misapplication of a properly stated

rule of law” generally do not merit review); see also Vasquez v. United States, 454 U.S.

975, 977 (1981) (Opinion of Stevens, J., respecting the denial of certiorari) (“It is often

appropriate to decline to review a decision that turns on details of the evidence that

are not likely to be duplicated in other cases.”); Rudolph v. United States, 370 U.S.

269, 270 (1962) (per curiam) (when this Court determined that factual issues would

control in a case and that “review would be of no importance save to the litigants

themselves,” the writ of certiorari was dismissed as improvidently granted).

In addition, the lower courts’ denials of habeas relief were correct on the

merits. The petition mischaracterizes, at various times, the law, the facts of this case,

and the proceedings at petitioner’s trial in an effort to appear worthy of relief. But

petitioner repeatedly ignores and fails to distinguish precedent that forecloses relief

on his claims, and he also fails to grapple with the impressive circumstantial evidence

supporting the jury’s guilty verdict at his trial. He alleges that prosecutors solicited

“false” testimony which, in reality, was not false. And he alleges that the prosecutors

“conspired” with witnesses to block testimony when petitioner simply failed to call

those witnesses in his defense. Thus, the lower courts got it right on the merits, and

this Court need not intervene. Petitioner has already had not one, but several bites

at the apple; his case is not worthy of another.

STATEMENT OF THE CASE

I. THE MURDERS AND INVESTIGATION

Mark Lioy, the first victim, was observed getting into a car with petitioner and

Amy Foster, a prostitute and petitioner’s second victim, on the afternoon of March

20, 2009. State v. Jones, 81 So.3d 236, 239 (La. App. 2d Cir. 2011), writ denied, 88

So.3d 462 (La. 2012). A surveillance video later showed the three of them leaving a

pawn shop in Shreveport around 6:00 pm. Id. Later that evening, police were called

to investigate a corpse found lying off a gravel road near Lake Bostineau, which was

determined to be Lioy. He had been shot 7 times. Id. at 239. After identifying Lioy,

and hearing from a witness that Lioy was last seen with petitioner and Foster, police

searched for the two of them for questioning. Id. By this time, is was after 3:00 am.

Foster never answered her phone when officials attempted to contact her. Petitioner

answered his phone, but upon hearing that the police wanted to talk about a murder,

he swore and hung up. Id. at 240.

Petitioner eventually met with a group of detectives. Id. After being read his

Miranda rights, petitioner explained that he drove Foster and Lioy to a park for a

sexual encounter, returned to town, dropped Lioy off, and then took Foster to perform

sexual favors for a group of immigrant men. Id. A search of the immigrants’ house

yielded no sign of Foster, however. Id. A search of a motel room jointly rented by

petitioner and Foster revealed marijuana, but no evidence connected to any killings.

Id. Finding nothing conclusive at the time to support holding petitioner, officials

released him. Id. The next morning, however, a woman was found lying dead on

Wyche Street in Bossier City. It was Foster. She had been shot five times and stabbed

four times. Id. at 241–42.

At this point, officers sought and received a warrant to search the house and

lot at 714 Kings Highway, where petitioner lived with his mother. Id. at 240–41. They

also searched petitioner’s car, which was parked on the vacant lot next door at 716

Kings Highway, and they found six bullets in the trunk. Id. at 241. A forensic analyst

confirmed that these bullets were consistent with those used to kill Lioy and

“distinctively similar” to the bullets used to kill Foster. Id.

II. THE TRIAL AND DIRECT APPEAL

Petitioner was indicted for first-degree murder, but the indictments were later

amended to second-degree murder. Id. He moved before trial to suppress the bullets

as evidence, but his motion was denied. Id. He was tried and convicted in 2010 for

the second-degree murders of Mark Lioy and Amy Foster, and he was sentenced to

life imprisonment. To prove second-degree murder, the state was required to

establish either that petitioner acted with intent to kill or to inflict great bodily harm,

or that the killings occurred in the context of committing another serious crime—

here, the armed robbery of Lioy, whose body had been stripped of valuables when it

was discovered. Id. at 239; see La. Rev. Stat. § 14:30.1. Under Louisiana law, “specific

intent to kill may be inferred from the act of pointing a gun and firing at a person in

close proximity.” State v. Lewis, 2009-1404 (La. 10/22/10), 48 So. 3d 1073, 1076. And

the prosecution argued that both victims’ numerous bullet wounds qualified

petitioner for conviction of second-degree murder. At trial, two witnesses—Benito

Vasquez via recorded testimony and Marcus Lige live in the courtroom—asserted

that petitioner had confessed to the murders. See Jones, 81 So.3d at 241–42.

According to Lige, Jones had said that he “lost his temper” with Lioy, “overreacted,”

and later dumped the body in a cemetery. Id. at 242. According to Vasquez’s recorded

testimony, Jones said to Vasquez that Lioy and Foster “ain’t the only two people he’s

killed.” Id. at 241.

Cell phone location records also placed petitioner in the areas where the

murders occurred. Id. And petitioner was the last person seen alive with both of the

victims. Id. at 239. He admitted to having been with them on the evening before the

murders, allegedly for the purpose of arranging an illicit sexual encounter. Id. at 239–

40. Another witness, Amber Thorn, stated that a few days before the killings, Jones

had said that Lioy owed him money for drugs. Id. As countervailing evidence, Jones

argued that no murder weapon was found in his possession, none of Lioy’s personal

effects were found on him, and no blood from either victim was found on him. Id. at

243.

A graphic video of the victims’ bodies was shown during the trial, after which

several jurors were overheard discussing the video in the women’s restroom. One

juror revealed that she had told her husband about the video. Id. at 242. The judge

admonished the jury to not discuss the case with anyone. Id. The jury found petitioner

guilty on both counts.

Petitioner’s convictions and sentence were affirmed on direct appeal. Id. at 239.

In considering a sufficiency-of-the-evidence challenge, the appellate court said that

“[t]he suggestion that somebody else might have intervened in this sordid sequence

of events and shot Lioy is simply not sufficiently reasonable to dissuade a reasonable

jury from its finding of Jones’s guilt.” Id. at 245. In response to petitioner’s appeal of

the denial of the motion to suppress, the appellate court held that the officers had

acted reasonably given the physical layout and circumstances of 714 Kings Highway

and the adjoining vacant lot. Id. at 246. The Supreme Court of Louisiana denied

certiorari without opinion. State v. Jones, 2012-0147 (La. 5/4/12), 88 So.3d 462.

III.

POST-CONVICTION PROCEEDINGS

Petitioner sought state post-conviction relief, which was denied. See State v.

Jones, no. 5:14-cv-02734 (26th Dist. La. 9/17/13) (Exhibit A.A-1 to petitioner’s

amended federal habeas petition). With regard to petitioner’s prosecutorial

misconduct claims, the state habeas court found that “nothing in the record indicates

that the accusations made by Petitioner in his application bear any truth.” Regarding

petitioner’s claim that witnesses were deterred from testifying, the court found that

the claim “[was] not supported by any factual basis, documentation, or sworn

affidavit” and amounted to “an unsupported conclusion.” Similarly, the court found

that petitioner’s ineffective assistance of counsel claims, based on counsel’s failure to

move for a continuance before trial and on counsel’s failure to object to petitioner’s

indictments, were meritless. The denial of habeas relief was upheld by the Supreme

Court of Louisiana without opinion. See State ex rel. Jones v. State, 2013-2344 (La.

5/2/14), 138 So.3d 1242; State ex rel. Jones v. State, 2014-0310 (La. 10/24/14), 151

So.3d 593.

Petitioner then sought federal habeas relief, alleging that his Fourth, Fifth,

Sixth, and Fourteenth Amendment rights had been violated. As relevant here,1 he

alleged that a motion to suppress evidence filed before his trial should not have been

denied, that the jury was tainted by discussing the case with outsiders, that

insufficient evidence supported his convictions, that prosecutors worked with

witnesses to solicit false testimony and deny petitioner due process, and that

petitioner received ineffective assistance of counsel. Adopting a magistrate judge’s

recommendations, the Western District of Louisiana denied relief on all claims. Jones

v. Cain, No. CV 14-2734, 2017 WL 4324540 (W.D. La. Sept. 28, 2017). The magistrate

1 Petitioner raised various other claims at the district court level, but he abandoned them at the circuit

court level and he does not press them here. See Jones v. Vannoy, No. 17-30861 (5th Cir. 2018)

(unpublished) (Oldham, J., denying COA request) (citing Yohey v. Collins, 985 F.2d 222, 224–25 (5th

Cir. 1993)).

found specifically that (1) the state court’s review of the sufficiency of the evidence

claims was not unreasonable under Jackson v. Virginia, 443 U.S. 307, 319 (1979); (2)

petitioner’s fourth amendment claim was barred by Stone v. Powell, 428 U.S. 465,

494 (1976); (3) it was proper to defer to the trial court’s finding that the jury was not

improperly affected by conversations; (4) it was proper to defer to the state court’s

findings that petitioner’s prosecutorial misconduct claims lacked any support in the

record, and (5) petitioner’s ineffective assistance of counsel claims failed under

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

The Fifth Circuit denied petitioner’s ensuing motion for a certificate of

appealability. That court ruled that petitioner had failed to make “a substantial

showing of the denial of a constitutional right.” Jones v. Vannoy, No. 17-30861 (5th

Cir. 2018) (unpublished) (Oldham, J., denying COA request). Jones now petitions this

Court to grant a writ of certiorari.

REASONS FOR DENYING THE PETITION

Petitioner identifies no circuit splits with regard to any of his questions

presented, and does not discuss the facts of the cases he cites in any detail sufficient

to guide an investigation into whether such a split exists. His allegations of error by

the lower court involve the application of well-settled principles of law to petitioner’s

individual case. Granting certiorari would lead to a large investment of this Court’s

resources in a case where no significant principle of law is at stake.

To the extent this Court considers the merits of petitioner’s claims in

determining whether to grant review, petitioner is subject to the demanding

requirements of AEDPA. Petitioner cannot qualify for federal habeas relief unless he

can show that his state habeas application either “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 “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.” 28 U.S.C. § 2254(d). To the extent

that petitioner’s claims turn on issues of fact, “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.” 28

U.S.C. § 2254(e)(1). Petitioner cannot satisfy AEDPA’s standards on any claim, as

will be explained below. Thus, the denial of relief below was correct on the merits,

and no corrective action is needed from this Court.

PETITIONER’S FOURTH AMENDMENT CLAIM BASED ON THE DENIAL OF HIS

MOTION TO SUPPRESS IS MERITLESS, TIED TO THE FACTS OF THIS CASE, AND

UNWORTHY OF REVIEW.

First, petitioner argues that evidence introduced at his trial—bullets—should

have been suppressed. While investigating the two murders, police obtained a

warrant to search the house where petitioner lived with his mother, as well as any

vehicles on the premises. At the time of the search, petitioner’s car was parked not

on the lot described in the search warrant, but on an adjacent vacant lot. Police

searched the car and found bullets, which turned out to be consistent with the bullets

used to kill Lioy and Foster. Defense counsel moved before trial to suppress the

evidence, but the motion was denied on the grounds that “the layout of the two lots

support[ed] the officer’s reasonable inference that the [car] was parked on a portion

of the property described in the warrant.” See State v. Jones, 81 So.3d at 246

(upholding this decision on direct appeal). Petitioner argues that the denial of his

motion to suppress violated his Fourth Amendment rights, as the scope of the officers’

search exceeded the exact terms of the search warrant.

This claim does not merit Supreme Court review, for four reasons. First, the

facts underlying the denial of petitioner’s motion, such as the precise layout of the

two lots and the location of his car on the vacant lot, are case-specific and present no

broad question of law applicable to many cases. The reasonableness of the officer’s

actions must be judged based on not only the language of the search warrant, but also

on the “physical layout of the premises and their use.” United States v. Prout, 526

F.2d 380, 388 (5th Cir. 1976), cert. denied, 429 U.S. 840 (1976). Any action by the

Supreme Court on this issue would therefore be mere error correction. And to decide

this issue, if certiorari is granted, the Court will have to wade into the physical details

of the two lots and the exact position of the parked car, which are all details that will

not transfer to other Fourth Amendment cases.

Second, petitioner can point to no analogous case from which the Fifth Circuit

split by denying relief here. He cites Maryland v. Garrison for the unremarkable

principle that search warrants must be particularized, and that warrants may not be

issued to authorize “general searches.” Maryland v. Garrison, 480 U.S. 79, 84 (1987).

But Garrison concerned an alleged defect in a search warrant itself, not a police

search that allegedly exceeded the scope of the warrant. He raises no claim that the

warrant issued in his case authorized an impermissible “general search.” Moreover,

the defendant in Garrison was ultimately denied relief because “the officers’ conduct

was consistent with a reasonable effort to ascertain and identify the place intended

to be searched within the meaning of the Fourth Amendment.” Id. at 88. If any

portion of Garrison is applicable here, it is that analysis, which undermines

petitioner’s argument.

Third, this Court has held that “where the State has provided an opportunity

for full and fair litigation of a Fourth Amendment claim, a state prisoner may not be

granted federal habeas corpus relief on the ground that evidence obtained in an

unconstitutional search or seizure was introduced at his trial.” Stone v. Powell, 428

U.S. 465, 494 (1976).2 Petitioner’s claim is therefore squarely barred by precedent,

and the petition for certiorari makes no argument to the contrary. Thus, the denial

of federal habeas relief on this claim was correct on the merits; the lower courts

applied well-settled law.

Finally, this claim fails on its merits for the reasons stated by the Louisiana

appellate court on direct review. As that court found, there was no clear boundary

marking the limit of the lot described in the warrant. “The layout of the two lots

supports the officers’ reasonable inference that the [car] was parked on a portion of

the property described in the warrant.” State v. Jones, 81 So.3d at 246. Petitioner

2 The court has since limited Stone as it applies to claims of ineffective assistance of counsel relating

to improper litigation of fourth amendment issues. See Kimmelman v. Morrison, 477 U.S. 365, 382–83

(1986). Stone remains good law with respect to direct Fourth Amendment habeas claims, however.

does not describe the geography of the two lots in his petitions, and gives no reason

to believe that this finding by the state court was incorrect. In the absence of a

compelling argument against this finding (for example, a clear boundary line

separating the vacant lot from the lot described in the warrant), the lower courts

acted appropriately by not disturbing the state courts’ decisions. Moreover, a

policeman testified at trial that, after his first interrogation, when the police searched

petitioner’s and Foster’s motel room, petitioner also gave consent to a search of his

car. Jones, 81 So.3d at 240–41. Petitioner does not argue before this Court that he

withdrew that consent. This provides an alternative ground for concluding that the

lower courts were correct to deny relief. Even if the search was not permissible under

the warrant, it was permissible based on consent. Thus, even if the Court wished to

address some area of Fourth Amendment law at issue here, this case makes a poor

vehicle.

II.

PETITIONER’S SIXTH AMENDMENT CLAIM THAT THE JURY WAS TAINTED IS

SPECIFIC TO HIS CASE AND BASED ON FACTUAL CLAIMS CONTRARY TO

FINDINGS BY THE STATE COURT

Second, petitioner claims that multiple jurors at his trial improperly discussed

the case with one another, and that one juror discussed the case with her husband.

After a video showing the murder victims in graphic detail had been shown to the

jury, one juror reported overhearing other jurors discuss the video in the women’s

restroom. According to the reporting juror, her fellow jurors were discussing how

disturbing they had found the video and how it was keeping them awake at night.

And one juror said she had needed to talk about the video with her husband to work

through her emotions. The trial judge, upon hearing this report, admonished the jury

and reiterated that they were not allowed to discuss the case, but took no further

action. Petitioner argues that the trial judge was constitutionally required to either

declare a mistrial or investigate the entire jury to ensure that no extraneous influence

had crept in. The judge’s failure to conduct such an investigation, says petitioner,

violated petitioner’s Sixth Amendment right to an impartial jury.

This claim, like the first, does not merit review. First, it is built upon factspecific assertions, including what exactly the reporting juror overheard the other

jurors saying. At best, petitioner is asking for error correction, not for the Court to

resolve a split among lower courts. Second, although petitioner has alleged that

improper conversations took place, he has not alleged that any of those conversations

(either amongst the jurors or between a juror and her husband) influenced the jury

on the question of guilt versus innocence. There is nothing in the record about what

the husband said to his juror wife; petitioner has not alleged that he attempted to

push her toward a guilty verdict. When this alleged juror misconduct was raised as

an issue on direct appeal, the state court denied relief on this ground. State v. Jones,

81 So.3d at 248 (“Simply put, there is no showing of influence” on the jury.)

Third, the standard of review here is nearly insurmountable, and so

petitioner’s claim must fail on the merits. On direct review in federal court, “any

private communication, contact, or tampering directly or indirectly, with a juror

during a trial about the matter pending before the jury is, for obvious reasons, deemed

presumptively prejudicial.” Remmer v. United States, 347 U.S. 227, 229 (1954). But

on habeas review, whether the jury was improperly influenced is a factual issue, and

so federal courts must defer to a state court’s findings unless the petitioner puts

forward “clear and convincing evidence” to the contrary. See Oliver v. Quarterman,

541 F.3d 329, 342 (5th Cir. 2008) (quoting 28 U.S.C. § 2254(e)(1)). “[T]he factual

findings arising out of the state courts’ post-trial hearings are entitled to a

presumption of correctness. The substance of the ex parte communications and their

effect on juror impartiality are questions of historical fact entitled to this

presumption.” Rushen v. Spain, 464 U.S. 114, 120 (1983);3 see also Young v. Trombley,

435 F. App’x 499, 505 (6th Cir. 2011) (“The question of whether a trial court has

seated a fair and impartial jury is a factual one, involving an assessment of

credibility.”). Petitioner has not put forward any convincing evidence that these

conversations actually affected the jury’s determination of guilt. Thus, denial of

habeas relief was correct on the merits.

III.

PETITIONER’S DUE PROCESS CLAIMS BASED ON A LACK OF SUFFICIENT

EVIDENCE ARE SPECIFIC TO HIS CASE, BASED ON AN ERROR OF LAW, AND

MERITLESS

Third, petitioner alleges that insufficient evidence supported both of his

murder convictions. His petition alleges that the State failed to put forward enough

evidence to establish “all the elements of the offense charged.” But petitioner does not

3 Note that Rushen was decided before AEDPA became law. If deference was due to state court findings

on jury influences then, a fortiori the same is true now.

say whether the evidence fails to support a particular element of his convictions or

even a particular murder. All petitioner says is that his conviction violated the due

process clause. He cites Fiore v. White for the proposition that “the Due Process

Clause of the Fourteenth Amendment forbids a State to convict a person of a crime

without proving the elements of that crime beyond a reasonable doubt.” 531 U.S. 225,

228–29 (2001). Petitioner leans heavily on the fact that much of the evidence against

him was circumstantial, claiming that there was “no physical evidence” proving who

had killed the victims. Specifically, he points to the lack of a murder weapon and to

the fact that no blood from either victim was discovered on him or his possessions. He

also states that no DNA evidence was introduced at trial. Finally, he claims that the

cell phone evidence introduced at trial supported a later time death for Foster than

that alleged by the prosecutor because her phone “pinged” off of a cell tower after the

supposed time of her death.

This claim does not merit review. First, as is true for any sufficiency-of-theevidence claim, it is highly fact-specific. No major principle of law is at stake, and

petitioner is asking for error correction. The lower courts applied the correct

standard: “[T]he relevant question is whether, after viewing the evidence in the light

most favorable to the prosecution, any rational trier of fact could have found the

essential elements of the crime beyond a reasonable doubt.” Jackson v. Virginia, 443

U.S. 307, 319 (1979). The habeas court’s inquiry “does not focus on whether the trier

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

a rational decision to convict or acquit.” Herrera v. Collins, 506 U.S. 390, 402 (1993).

At best, petitioner is alleging a “misapplication of a properly stated rule of law,” which

is not a compelling argument for Supreme Court review. See Supreme Court Rule 10.

Moreover, petitioner has not identified any Supreme Court or circuit case with

similar facts in which a sufficiency-of-the-evidence challenge succeeded. There is no

conflict of authority that requires resolution by this Court. Petitioner cites only

Jackson and Fiore to establish the legal framework for this issue; he does not allege

that those cases involved similar facts or that the cases cannot be distinguished.

Third, petitioner makes an error of law by arguing that “[w]hen a conviction is

based on circumstantial evidence . . . [the circumstantial evidence] must exclude

every reasonable hypothesis of innocence.” That rule was expressly rejected by this

Court in the federal habeas context. See Jackson, 443 U.S. at 326 (“Only under a

theory that the prosecution was under an affirmative duty to rule out every

hypothesis except that of guilt beyond a reasonable doubt could this petitioner's

challenge be sustained. That theory the Court has rejected in the past. We decline to

adopt it today.” (citation omitted)).

The argument about Foster’s cell phone data is even more fact-specific. And

petitioner raises no argument for why a cell phone could not have “pinged” a cell tower

after the owner of that phone was dead. A cell phone could register on a tower’s log

because someone else had called the phone, or another person could have picked up

the phone and used it. This claim is tied to the facts of the case, not well-developed,

and not worthy of review.

Finally, the denial of habeas on this point was correct on the merits. Review of

sufficiency-of-the-evidence challenges under AEDPA is “twice-deferential,” and the

state court’s decision to deny relief will not be displaced unless it was “objectively

unreasonable.” Parker v. Matthews, 567 U.S. 37, 43 (2012). Petitioner’s statements

that his conviction was based upon circumstantial rather than direct evidence do not

come close to establishing that the state court was “objectively unreasonable” in

denying relief—and he does not grapple with the fact that two witnesses stated that

he confessed, which is highly significant evidence. Other relevant evidence included

cell phone records placing petitioner in the right location to commit both murders,

the bullets found in petitioner’s car, witness testimony and a surveillance video

showing petitioner and both victims leaving a pawn shop together on the evening

before the murders, and another witness testifying that petitioner had talked about

killing Lioy a few days before the crime. The jury was properly placed to weigh all

evidence, circumstantial and otherwise, and it ultimately found that evidence

weighty enough to convict. A habeas court, by contrast, is ill-placed to second-guess

the jury’s decision, and the lower courts here acted appropriately by not doing so.

IV.

PETITIONER’S

DUE

PROCESS

CLAIMS

BASED

PROSECUTORIAL

MISCONDUCT MISCHARACTERIZE THE TRIAL PROCEEDINGS AND RAISE NO

ISSUES WORTHY OF REVIEW BY THIS COURT

a. Amber Thorn’s testimony was not false

Fourth, petitioner argues that prosecutorial misconduct violated his right to

due process under the Fifth and Fourteenth Amendments on four separate occasions.

First, he argues that the state solicited false testimony from witness Amber Thorn—

specifically a statement that she had “never had any kind of [criminal] charges.”

Petitioner alleges that, according to a local Sheriff’s Office Offense Report, Thorn was

listed as a suspect in the armed robbery of Mark Lioy (one of petitioner’s two victims).

Because “a conviction obtained through use of false evidence, known to be such by

representatives of the State” is forbidden by the Fourteenth Amendment—see Napue

v. Illinois, 360 U.S. 264, 269 (1959)—petitioner alleges that the state violated his

rights by offering such testimony from Thorn. This challenge is very easily rebutted:

Thorn did not give false testimony. Asked if she had faced criminal charges, Thorn

responded truthfully that she had not. As the magistrate judge below noted, “[b]eing

listed in an investigative report is a long way from being arrested or formally charged

with a crime.” This claim by petitioner fails on the merits. And as with several claims

discussed previously, petitioner fails to point to any Supreme Court or circuit case

with comparable facts that came out the other way; he does not even allege a circuit

split. Thus, even if Thorn had given false testimony, this issue would be mere error

correction.

b. Brian Griffith’s testimony was not false, and petitioner only raises

a fact-specific claim not worthy of review

Next, petitioner alleges that the state put forward false testimony from

detective Brian Griffith. Griffith testified that witnesses living near where Foster’s

body was found described a white car leaving the area just before 4:00 a.m., around

the time that Foster was killed. Petitioner’s argument on this point is not perfectly

clear. He appears to argue that, according to a Police Incident Report, no one was

able to give a description of any white vehicle in that area around 4:00 a.m.; but one

witness did mention a brown vehicle, and so Griffith’s testimony must have been

false. Petitioner does not cite to any specific language from the report to support his

claim, nor does he claim that the report represented all possible information about

the investigation into Foster’s murder.

This claim is once again fact-specific and unique to petitioner’s individual case.

Petitioner has not drawn parallels to any other circuit case in which an alleged

conflict arose between a witness’s testimony and a separate report. The one case he

does cite, Napue v. Illinois, concerned a witness who testified on the stand that he

(the witness) had “received no consideration in return for his testimony.” Napue, 360

U.S. at 265. In fact, the prosecutor had promised the witness consideration. Id. The

failure to correct this false testimony resulted in reversible error. Id. at 272. Napue

did not involve the witness’s testimony being allegedly inconsistent with some other

piece of evidence—by definition, witnesses in contested cases often proffer testimony

that contradicts other evidence. Instead, a key component of the witness’s motive for

testifying was at issue. In this case, by contrast, petitioner has not alleged any

improper motive for Griffith’s testimony. Nor has he established the truth of any

contradiction between Griffith’s testimony and the report. The state habeas court,

when considering this claim, stated that “nothing in the record indicates the

accusations made by Petitioner in his application bear any truth.” Thus, this claim

fails on the merits and is unworthy of review.

c. Petitioner can show no Constitutional violation with regard to

witnesses who were not present

Petitioner’s next assertion of a due process violation is illogical on its face.

Petitioner attacks the state for not introducing the testimony of certain witnesses

(Lisetta Robinson, Eric Churchwell, Jessica Espanza, and Cassandra Hernandez). He

asserts that these witnesses could have given testimony favorable to his defense.

Petitioner does not at all explain what Robinson and Hernandez might have said had

they been called to testify. He alleges that Espanza would have stated that no DNA

evidence connected petitioner to the crime. It is not clear from the record what effect

that testimony might have had on the jury, given that the state was not attempting

to rely on DNA evidence. He alleges that Churchwell would have testified to hearing

gunshots near where Foster’s body was found, and seeing a brown car (not a silver

car, as driven by petitioner) quickly leaving the area. The alleged time at which

Churchwell heard these bullets, however, was between 4:30 and 4:45 a.m., at least

half an hour after the Bossier City Police first received a call reporting gunshots in

the area. See Jones, 81 So.3d at 240 (putting the time “about ten minutes” after a cell

phone call that occurred at 3:48 a.m.).

But critically, petitioner can cite to no authority that a prosecutor has a

constitutional duty to introduce witnesses that might undermine his own case. Why

petitioner himself did not call these witnesses is left unexplained. He can therefore

show no constitutional violation worthy of federal habeas relief. The case petitioner

cites to support his argument, Chambers v. Mississippi, is easily distinguishable from

the present case. In Chambers, various witnesses had heard another man—not the

defendant—confess multiple times to the crime for which defendant was charged. See

410 U.S. 284, 289 (1973). That confessor then recanted his confessions before trial.

Id. at 288. When defendant attempted to bring in witnesses to testify to the other

man’s previous confessions, their testimony was blocked as hearsay. Id. at 292–93.

This was a due process violation because, by blocking this critical testimony, the trial

court prevented Chambers from defending himself. Id. at 294. Here, there is no

assertion that petitioner attempted to call these witnesses and was blocked by the

court; he rather alleges that the state had a duty to call them. This argument is

meritless. Petitioner also fails to allege any conflict between the circuits on this issue

or any novel question of law demanding review by this Court. And once again, the

hypothetical impact of these witnesses’ testimony on the verdict is tied to the totality

of the evidence in this specific case. Review of this issue by this Court would amount

to error correction at best.

Benito Vasquez’s testimony was not improperly bolstered.

Petitioner’s final alleged due process violation fares no better. Petitioner

alleges that the prosecutor at his trial improperly bolstered the testimony of another

witness, Benito Vasquez. Vazquez, himself incarcerated for an unrelated crime, gave

a recorded statement before petitioner’s trial. In that statement he said that

petitioner had confessed to the crime, and he gave several details that a person who

had not spoken with the killer would be unlikely to know. However, as the Magistrate

Judge explained below, Vasquez refused to repeat this testimony at trial, allegedly

because the police did not “do anything” for Vasquez (presumably meaning, anything

to reward him for testifying against petitioner). The prosecutor then introduced the

recorded testimony at trial. The prosecutor stated in closing that, if Vasquez had not

actually heard a confession from petitioner, “psychic shops need to hire him or else

they’ll be out of business, because he’s the best dang psychic I know, because he knew

it all” in his recorded testimony. Petitioner argues in his petition that this statement

amounted to the prosecutor telling the jury that he believed the witness to be credible,

in violation of United States v. Young, 470 U.S. 1, 17 (1985) (explaining that the

prosecutor should not have given his own “personal impression” about the witness’s

credibility and the weight of the evidence).4

This claim does not merit review for multiple reasons. First, witness-bolstering

claims can be decided only by looking at the actual words used by the prosecutor;

thus, they are fact-specific and demand individual inquiries. Petitioner is once again

asking for error correction on a settled principle of law, which is not the function of

this Court. Martin, 134 S. Ct. at 405 (Statement of Alito, J.). He is not asking for this

Court to articulate any novel principle of law or to expand on existing precedent.

4 Note that the defendant in Young did not receive relief in spite of this finding of error. The issue was

reviewed for plain error at the circuit level, and the Supreme Court was not “persuaded that the

challenged argument seriously affected the fairness of the trial.” Young, 470 U.S. at 20.

Second, this claim was waived. Petitioner in his federal habeas petition to the

district court argued that the prosecutor presented false testimony by introducing the

recorded testimony, which is not the argument he raises here. The original habeas

petition did not make a clear bolstering argument. Petitioner mentioned in passing

that the prosecutor “made indications/comments” that the recorded statement was

true. Petitioner did not allege that the prosecutor asserted a personal belief in

Vasquez’s credibility as a witness. Although pro se filings are construed liberally, pro

se litigants still must raise issues to avoid waiving them. See, e.g., McGhee v. Watson,

900 F.3d 849, 853 (7th Cir. 2018) (even with the benefit of liberal construction, pro se

arguments were still held waived when not presented to the district court);

Zimmermann v. United States Nat’l Labor Relations Bd., 749 F. App’x 148, 150 (3d

Cir. 2019) (citing Emerson v. Thiel Coll., 296 F.3d 184, 190 n.5 (3rd Cir. 2002))

(“[A]lthough we construe pro se filings liberally, this policy has not prevented us from

applying the waiver doctrine to pro se appeals.”). Habeas arguments not raised at the

district court level are considered waived on appeal. See Harmon v. Sharp, No. 166360, ___ F.3d ___, 2019 WL 4071870, at *32 n.2 (10th Cir. Aug. 29, 2019) (Holmes,

J. concurring) (collecting circuit court cases) (“[o]ther circuits largely appear to agree

that a petitioner waives arguments that he or she has failed to advance before the

district court in a § 2254 petition”; also acknowledging some confusion in terminology

between waiver and forfeiture within circuit precedent).

Finally, denial of habeas relief below was correct on the merits. The prosecutor

was not claiming that everything that Vasquez said was true. He did not assert that

he perceived Vasquez to be truthful. He said that the details of the crime provided by

Vasquez—which Vasquez said had come from petitioner—matched up with the actual

evidence discovered by investigators. Pointing out that a witness’s statement is

consistent with other evidence is far different from baldly asserting that one believes

the witness. The prosecutor “neither gave explicit personal assurances that his

witnesses were trustworthy, nor indicated that information not presented to the jury

supported his witnesses’ testimony.” See United States v. Lewis, 10 F.3d 1086, 1089

(4th Cir. 1993). The issue at trial was not whether Vasquez had been truthful, but

rather whether Vasquez had revealed enough details about the crime that it was

reasonable to infer that he had received those details from the killer. This defeats

petitioner’s bolstering claim on the merits.

PETITIONER’S INEFFECTIVE ASSISTANCE OF COUNSEL CLAIMS RAISE NO

NOVEL ISSUES OF LAW, ARE FACT-SPECIFIC, AND FAIL ON THE MERITS UNDER

STRICKLAND V. WASHINGTON.

Fifth and last, petitioner alleges ineffective assistance of counsel in violation

of the Sixth Amendment. He brings two arguments. First, he argues that his

indictments for second-degree murder were never presented to a grand jury, making

them invalid. Counsel’s failure to object to the indictments was therefore ineffective

assistance, argues petitioner. But this argument fails at the first step. The grand jury

requirement is binding in federal trials, but not in state trials. See Campbell v.

Louisiana, 523 U.S. 392, 399 (1998) (citing Hurtado v. California, 110 U.S. 516

(1884)). So petitioner fails to show any constitutional violation here to which his

lawyer would have been obligated to object.5

Second, petitioner argues that his counsel was ineffective by failing to move for

a continuance after a lengthy police report was released giving details about

investigation of Foster’s murder. Petitioner baldly asserts that counsel’s decision not

to interview certain witnesses mentioned in that report was unreasonable. Once

again, this allegation is highly fact-specific and tied to the details of petitioner’s case

and the police report. Petitioner is not asking this Court to clarify an important

principle of Sixth Amendment law; he is asking for correction of an application of

settled law. Petitioner does not draw analogies to any other case involving a failure

to request a continuance, and so he has not shown a conflict between the decision

below and any other court decision.

In addition, petitioner’s statements do not meet the high bar required for

ineffective assistance claims under Strickland v. Washington, 466 U.S. 668 (1984).

“[A] court must indulge a strong presumption that counsel’s conduct falls within the

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

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

might be considered sound trial strategy.” Strickland, 466 U.S. at 689. Petitioner has

failed to make such a showing. It is almost always true that more investigation could

5 Below, petitioner also appears to have argued that Louisiana state law requires indictment by a

grand jury in criminal cases. This argument was abandoned in petitioner’s petition here. And in any

event, this Court “ha[s] stated many times that federal habeas corpus relief does not lie for errors of

state law.” Swarthout v. Cooke, 562 U.S. 216, 219 (2011) (quoting Estelle v. McGuire, 502 U.S. 62, 67

(1991)).

yield more facts relevant to the case, but petitioner has not shown that his counsel

acted unreasonably. The trial date had been set months earlier, allowing ample time

for investigation of witnesses; a continuance was not necessary for counsel to prepare

adequately for the case.

As the state habeas court found, “[p]etitioner has failed to show that the

performance of his counsel was not reasonably effective considering all the

circumstances.”6 And petitioner has likewise failed to show that a continuance,

allowing for marginally more investigation, would have had a reasonable likelihood

of changing the verdict. Such a showing of prejudice is required for an ineffective

assistance claim. See Strickland, 466 U.S. at 696 (“[A] court making the prejudice

inquiry must ask if the defendant has met the burden of showing that the decision

reached would reasonably likely have been different absent the errors.”). Out of the

numerous pieces of circumstantial evidence suggesting petitioner’s guilt, the

witnesses mentioned in the report would only have been positioned to address one

relevant detail: the color of a car they saw leaving the area in which Foster’s body

was found on the night of her death. It is not alleged that any witness could have

personally identified another killer. Testimony that a witness saw a car in the area

which did not match petitioner’s car—which appears to be the best testimony that

petitioner could hope for—would not have been reasonably likely to clear petitioner

6 Note that this language underscores another reason to deny review on this claim: To properly judge

whether counsel’s strategy was reasonable, this court would have to wade into the totality of facts of

this case, and the resulting decision would be either affirmance or error correction, not an

announcement of a new principle of law.

in light of the other evidence against him. Two witnesses testified that he confessed

to the murders. Petitioner’s claim is meritless.

CONCLUSION

Petitioner has raised no issues worthy of review by this Court. The petition for

a writ of certiorari should be denied.

Respectfully submitted,

/s/ Elizabeth Baker Murrill