Petition for Writ of Certiorari — Joseph D. Blueford, Petitioner v. Timothy Hooper, Warden

Supreme Court briefMar 6, 2020

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IN THE f

SUPREME COURT OF THE UNITED STATES

JOSEPH D. BLUEFORD

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(Petitioner) PRO'SE

supreme .Court, U.S.

, FILED

mar - 6 2020

vs.

OFFICE OF THE Cl FRk-

TIMOTHY HOOPER, Warden, Elayn Hunt Correctional Center,

(Respondent)

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ON WRI T OF CERTIORARI,

TO THE I^TIED ^TATES Ct^JRT OE APPEALS

FOR THE?FIFTH CIRCUIT

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PETITION FOR WRIT OF CERTIORARI

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Respectfully Submitted,

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TOseph D. Bllieford #393195

(Pro se) litigant

Elayn Hunt Correctional

P.O.Box 174

St! Gabriel, LA 70776

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QUESTION PRESENTED

Question 1: Does a petitioner have the right to a fair and impartial trial when a juror does not

hear or understanding the evidence being provided?

Petitioner respectfully suggest this question is worthy of this Honorable Court's review.

U.S. Const. Amend Sixth. This clause has been interpreted to mean that a defendant is entitled

to “ a tribunal both impartial and mentally competent to afford a hearing. Tanner v. United States, 483

U.S. 107, 126 (1987) (quoting Jordan v. Massachusetts, 225 U.S. 167, 176 (1912) To satisfy this

fundamental standard, jurors must be able to “conscientiously and property carry out their sworn duty

to apply the law to the facts of the particular case.” Biagas v. Valentine, No. 4:06-CV-0668, 2007 WL

1217976, at *7 (S.D. Tex. Apr. 23, 2007), affd, 265 F. App’x 166 (5th Cir. 2008) (quoting Lockhart v.

McCree, 476 U.S. 162, 184 (1986); see McIIwain v. United States, 464 U.S. 972, 975 (1983)

Rule 10: Review on a writ of certiorari is not a matter of right, but of judicial discretion. A petition for

a writ of certiorari will be granted only for compelling reasons. The following, although neither

controlling nor fully measuring the Court's discretion, indicate the character of the reason the Court

considers:

(a) United States Court of Appeals has entered a decision in conflict with the decision of another

United States Court of Appeals on the same important matter; has decided an important federal

question in a way that conflicts with a decision by a state court of last resort ; or has so far departed

from the accepted and usual course of judicial proceeding , or sanctioned such a departure by a lower

court, as to call for exercise of this Court's supervisory power;

U.S. Const. Amend Sixth, has been interpreted to mean that a defendant is entitled to “ a tribunal both

impartial and mentally competent to afford a hearing. To satisfy this fundamental standard, jurors must

be able to “conscientiously and property carry out their sworn duty to apply the law to the facts of the

particular case.” The Supreme Court cannot say that the juror's inability to hear and understand

substantial portion of the testimony was harmless beyond a reasonable doubt. Indeed, the failure of one

juror to participate meaningfully cannot be justified on the basis that those jurors who did participate

found the testimony to be credible. Hence, the juror's inability to hear denied the defendant the right

to a fair trial and that the court abused its discretion in refusing to declare a mistrial or new trial.

Moreover, a juror cannot be aware of what she cannot hear. Thus, the juror here could not participate in

meaningful discussion during the deliberative stage of the trial nor decide the case intelligently. The

effect of the juror's inability to hear the testimony was tantamount to the juror not being in attendance

for more than one-third of the trial, thus denying the defendant the right to a jury of twelve.

(b) a state court of last resort has decided an important federal question in a way that conflict with the

decision of another state court of last resort or of a United States court of appeals;. The state court

along with the United States Fifth Circuit Court of Appeals failed to provide petitioner a fair and

impartial trial.

Rule 24. Briefs on the Merits: In General

1. A brief on the merits for a petitioner or an appellant shall comply in all respects with

Rules 33.1 and 34 and shall contain in the order here indicated:

(a) The questions presented for review under Rule 14.1(a). The questions shall be set

out on the first page following the cover, and no other information may appear on that

page. The phrasing of the questions presented need not be identical with that in the

petition for a writ of certiorari or the jurisdictional statement, but the brief may not raise

additional questions or change the substance of the questions already presented in those

documents. At its option, however, the Court may consider a plain error not among the

questions presented but evident from the record and otherwise within its jurisdiction to

decide.

The question before this Honorable Court is: Does a petitioner have the right

to a fair and impartial trial when a juror does not hear or understand the evidence

being provided?

U.S. Constitution Amendment Sixth along with the Fourteenth has been

interpreted to mean that a defendant is entitled to “a tribunal both impartial and mentally

competent to afford a hearing. To satisfy this fundamental standard, jurors must be able

to “conscientiously and property carry out their sworn duty to apply the law to the facts

of the particular case. The U.S. Fifth Court of Appeals has ruled in conflict with the

interpretation of this Honorable Court. The Appellate Court cannot say that the juror's

inability to hear and understand substantial portion of the testimony was harmless

beyond a reasonable doubt. Indeed, the failure of one juror to participate meaningfully

cannot be justified on the basis that those jurors who did participate found the testimony

to be credible. The juror's inability to hear and understand denied Joseph D. Blueford

the right to a fair trial and that the court abused its discretion in refusing to declare a

mistrial or new trial.

A juror cannot be aware of what she cannot hear or understand. The juror in the

instant case could not participate in meaningful discussion during the deliberative stage

of the trial nor decide the case intelligently. The effect of the juror's inability to hear and

understand the testimony was tantamount to the juror not being in attendance for more

than one-third of the trial, thus denying the Joseph D. Blueford the right to a jury of

twelve. The State courts along with the U.S. Fifth Circuit Court of Appeals failed to

provide a fair see that petitioner did not obtain a fair and impartial as required by law

and by the Louisiana and United States Constitution.

Finally, Joseph D. Blueford would like to point out that the Magistrate Judge

Karen L. Hayes of the United States Western District of Louisiana Court along with

Judge Terry A. Doughty both agreed to grant and remand the matter back to the 4th

Judicial District Court, Parish of Morehouse, for a new trial or for further proceedings

not consistent therein. It was stated by Judge Terry A. Doughty in Blueford Certificate of

Appealability that Blueford made a substantial showing of denial of a constitutional

right. The reason of jurist has shown that Blueford claim is debatable or can even be

wrong. Blueford has shown (1) that reasonable jurist found this court's assessment of

the constitutional claim debatable and wrong. (2) that reasonable jurist found claim

debatable and that petition stated a valid claim of denial of a constitutional right and

debatable whether this United States Fifth Circuit Court of Appeals was correct in its

procedural ruling. Slack v. Me Daniel, 529 U.S. 473, 484, 120 S.Ct. 1595, 146 L.Ed.2d

542 (2000).

LIST OF PARTIES

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

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

. proceeding in the court whose judgment is subject of this petition is as follows:

Respondent for the State of Louisiana

Jerry L. Jones , District Attorney

400 St. John St. P.O, Box 1652

Monroe Louisiana 71210-1652

There are no other parties to this action within the scope of Supreme Court Rule 29.1

Joseph Blueford

TABLE OF CONTENTS

Question Presented

List of Parties

Table of Authorities ..:

Petition For A Writ of Certiorari Opinion Below.

Jurisdiction,

Constitutional and Statutory Provisions Involved

Statement of the Case

Statement of Facts

Reason For Granting The Petition

Appealable Questions

State Court Proceedings

Action of the Trial Court,

Summary of the Argument.

Argument.

Conclusion

Proof of Service

INDEX TO APPENDICES

FEDERAL COURT RULINGS:

Appendix A 01-14-20

U.S. Fifth Circuit Court of Appeals denied Certificate of

Appealability Stating that the State and United States

Western District erred in their ruling that applicant made

a substantial showing of the denial of a constitutional

right

Appendix B 11-5-18

U.S. Western District of Louisiana, Certificate of

Appealability was granted stating that applicant made a

substantial showing of the denial of a constitutional

right under docket no. 3:17-CV-00639

Appendix C 10-16-18

U.S. Western District of Louisiana Magistrate Judge

Karen L. Hayes under Docket 17-0639 recommended

Petition for habeas corpus and granted and remanded to

the 4lh Judicial District Court, Parish of Morehouse, for a

new trial or for further proceedings not inconsistent

therein.

Appendix D 4-24-2017

Louisiana Supreme Court denied and his application

for post conviction relief was considered untimely

pursuant to La. S.Ct. R. X § 5 State Ex rel Joseph D.

Blueford v. State ofLouisiana, 217 So.3d 329; La.

Lexis 842 No. 2017-KH-0356 (La. Apr. 24, 2017). \

Appendix E 12-8-2016

The Second Circuit Court of Appeals denied in the

petitioner's application for Post conviction relief on

December 8, 2016.

Appendix F 08-26-2016

The Fourth Judicial District Court denied petitioner's

application for Post conviction relief on August 26,

2016 under Docket No. 12-467F & 11-14F

IV.

TABLE OF AUTHORITIES

CONSTITUTION

United States Constitution, Amendment 5

3,5

United States Constitution, Amendment 6

3,5,8,10,21,25

United States Constitution, Amendment 14

3,5,21,25

United States Constitution, Amendment Art. 3 §2 cl.2

CASES:

Aubin v. Quarterman, 470 F.3d 1Q96, 1103 (5th Cir 2006).

Biagas v. Valentine, No. 4.06-CV-0668, 2007 WL 1217976, at *7 (S.D. Tex. Apr. 23, 2007), affd, 265 F.

App'x 166 (5lh Cir. 2008)

Blue v. Hooper, 2018 U.S. Dist. Lexis 18771 (W.D. Nov. 1, 2018......

Gov't of Virgin Islands v. Nicholas, 759 F.2d 1073, 1078 (3rd Cir. 1985)

In re Murchison, 349 U.S. 133, 136, 75 S.Ct. 623, 625, 99 L.Ed 942 (1955)

Irvin v. Dowd, 366 U.S. 717, 81 S.Ct. 163, 6 LEd.2d 751 (1961)

Jordan v. Massachusetts, 225 U.S. 167, 176 (1912)

Lockhart v. McCree, 476 U.S. 162, 184 (1986)

McIIwainv. United States, 464 U.S. 972, 975 (1983)

Peters v. Kiff 407 U.S. 493, 501-02 (1972)

People v. Trevino, 826 P.2d 399, 401 (Colo App. 1991)

Poree v. Collins, 866 F.3d 235, 244-45 (5th Cir. 2017)

Rhoades v. Davis, 852 F.3d 422, 434 (5th Cir. 2017)...

22,23

Rompilla v. Beard, 545 U.S. 374,162 L. Ed. 2d 360, 125 S. Ct. 2456

Slack v. Me Daniel, 529 U.S. 473, 484, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000)

State v. Colbert, 2007 -094, (La. App. 4th Cir. 7/23/08), 990 So.2d 76, 90

State Ex rel. Joseph D. Blueford v. State ofLouisiana, 217 So.3d 329 (La. 4/24/2017)

,..l

State v. Blueford, 137 So.3d 54, writ denied 14-0745 (La. 11/21/14), 160 So.3d 968. cert denied , U.S.

4,12

135 S.Ct. 1900, 191 L.Ed.2d 770 (4/27/2015)

,22

State v. Fuller, 454 So.2d 119, 123 (La. 1984)

Strickland v. Washington, 466 U.S. 668, 687-88, 694, 104 S. Ct. 2052, 2064-65, 2068, 80 L.Ed.2d 674

24,25

(1984)

Tanner v. United States, 483 U.S. 107, 126 (1987)

United States v. King, 917 F.2d 181, 183 (5th Cir. 1990).........

United States v. Leahy, 82 F.3d 624, 629 (5th Cir. 1996)..........

United States v. L'Hoste, 609 F.2d 796, 801 n.4 (5th Cir. 1980)

United States v. Quiroz-Cortez, 960 F.2d 418, 419 (5th Cir. 1992)

Virgil v. Dretke, 446 F.3d 598, 607 (5th Cir. 2006)........................

10,24

Wiggins v. Smith, 539 U.S. 510,523, 123 S. Ct. 2527, 156 L. Ed. 2d 471 (2003)

Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 2Q L.Ed.2d 776 (1968)

.....6

STATUTES AND RULES

28 U.S.C. § 1254

28 U.S.C.A. § 1651

US.C.A. §1254(1)

28 U.S.C.A. § 1257(a)

28 U.S.C.A. § 2254

3,5

LSA-R.S. 14:27

LSA-R.S. 14:30.1

LSA-R.S. 14:95.1

OTHER AUTHORITIES

Supreme Court Rule 9

vi.

i,2

Supreme Court rule 10

Supreme Court Rule 17.1 (b)

Supreme Court Rule 22

Supreme Court Rule 24

Supreme Court Rule 29

Vll.

IN THE

SUPREME COURT OF THE UNITED STATES

PETITION FOR A WRIT OF CERTIORARI

Petitioner respectfully prays a writ of certiorari issue to review the judgment below.

OPINION BELOW

FEDERAL COURT RULINGS:

The opinion of the United States Fifth Circuit Court of Appeals appear at Appendix A to the

petition and is unpublished, where petitioner was denied Certificate of Appealability under

Docket No. 18-31169.

The opinion(s) of the United States District Court, Western District of Louisiana, which was

granted, appears at Appendix B and is Blueford v. Hopper, 2018 U.S. Dist. Lexis 18771 (W.D.

La. Nov. 1, 2018)

The opinion(s) of the United States District Court Western District of Louisiana U.S. Western

District of Louisiana Magistrate Judge Karen L. Hayes which was granted, appears at

Appendix C under Docket 17-0639 recommended Petition for habeas corpus and granted and

remanded to the 4th Judicial District Court, Parish of Morehouse, for a new trial or for further

proceedings not inconsistent therein.

STATE COURT RULINGS:

The opinion of the highest state court to review the merits appear at Appendix D of petition it

appears that petitioner was denied and his application for post conviction relief was considered

untimely pursuant to La. S.Ct. R. X § 5 State Ex rel Joseph D. Blueford v. State of Louisiana,

217 So.3d 329; La. Lexis 842 No. 2017-KH-0356 (La. Apr. 24, 2017).

The opinion of the state appellate court to review the merits appears at Appendix E of the

petition and is unpublished. Petitioner was denied in the Second Circuit Court of Appeals on

December 8, 2016.

The opinion of the state district court to review the merits appears at Appendix F of the petition

and is unpublished. Petitioner was denied post conviction relief on August 26, 2016 under

Docket No. 12-467F & 11-14F.

JURISDICTION

The Court had jurisdiction under 28 U.S.C. § 1254. The decision under review from the United

States Court of Appeals from the Fifth Circuit is an Order rendered on January 14, 2020 affirming the

U.S. District Court's denial of Petitioner's Petition for Habeas Relief. The instant Petition is timely

filed. The jurisdiction of this court is invoked under 28 U.S.C.A. § 1651, and US.C.A. §1254(1).

The U.S. Western District Court granted petitioner's Application for Certificate of Appealability

on November 5, 2019 in case No: 3:17-CV-00639. The U.S. Western District Court's order denying

Petitioner's Petition for Habeas Corpus was affirmed by the United States Fifth Circuit on January 14,

2020. The United States Fifth Circuit's judgment is reported at Appendix A at Doc No: 18-31169 The

United States Fifth Circuit's Opinion affirmed Petitioner's conviction and sentence is reported at

Appendix A.

The jurisdiction of this court is further invoked under 28 U.S.C.A, § 1651, 28 U.S.C.A.

§1257(a) U.S.C.A. Const. Art. 3 § 2 cl.2; Supreme Court Rule 10,17.1(b), 22, 24 and;

(a) The Supreme Court and all courts established by Acts of Congress may issue all Writs

necessary or appropriate in aid of their respective jurisdictions and agreeable to the usages and

principles of law.

(b) An alternative Writ or rule nisi may be issued by a justice or judge of Court which has

jurisdiction.

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:

(d) An application for 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 Qi

determination of the facts in light of the evidence presented in the State

court proceeding.

The Sixth Amendment to the Constitution of the United States

provides: The United States Constitution, Amendment VI provides in

pertinent part: In all criminal prosecutions, the accused shall enjoy the

right to a speedy and public trial, by an impartial jury of the state and

district wherein the crime shall have been committed, which district shall

have been previously ascertained by the accusation; to be confronted with

the witnesses against him; to have compulsory process for obtaining

witnesses in his favor, and to have the assistance of counsel for his

defense.

The United States Constitution, Amendment XIV, § I provide in

pertinent part:

No state shall make or enforce any law which shall abridge the

privileges or immunities of citizen 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.

(I) STATEMENT OF THE CASE

By bill of information filed March 1, 2011, in the 4th Judicial District Court, Morehouse Parish,

the State of Louisiana charged Joseph Blueford with two counts of attempted second degree murder.

On June 14, 2011, a third count, possession of a firearm by a convicted felon, was added to that bill.

Trial began March 19, 2013 and concluded on March 22, 2013. The jury found Blueford guilty of (1)

aggravated battery as to count one; (2) not guilty as to count two; and (3) guilty as charged as to count

three. The State subsequently, filed a habitual offender bill of information, which was heard on March

5, 2013. Following a sentencing hearing March 7, 2013, the trial court, the Honorable C. W. Manning,

Judge adjudicated Joseph a fourth felony offender and sentenced him to life imprisonment as to count

one and sixty five years as to count three. A motion to reconsider sentence was filed and denied March

14, 2013. A Motion for appeal was timely filed; and, the Louisiana Appellate Project, Mrs. Peggy

Sullivan, P. O. Box 2806 Monroe, La. 71207-2806 was appointed to represent Joseph. On October 7,

2014 appeal counsel filed the appeal in this matter under Docket number 2011-14 F. the court granted

Mr. Blueford until January 21, 2014 to file his supplement.

Mr. Blueford's timely filed a supplemental appeal, No. 2012-467 F. The Court of Appeals,

Second Circuit affirmed the conviction and sentence in State v. Blueford, 48,823 (La.App. 2d Cir.

03/05/14), 137 So.3d 54, writ denied, 14-0745 (La. 11/21/14), 160 So.3d 968, cert, denied, U.S., 135 S.

Ct. 1900, 191 L. Ed. 2d 770, (April 27, 2015).

Mr. Blueford filed his Application for Post Conviction Relief in the district court on April 8,

2016, the same was denied on October 29, 2016. Petitioner mailed his Rule 4-2 Notice of Intent to file

writs and asked the court to set a return date, and for a 20 day extension of time. (See attached Motion).

The district court adopted the States Answer which the state did not serve on petitioner. Therefore,

petitioner was denied the opportunity to rebut the unfounded conclusory allegation suggested by the

ruling. And given the factual disputes raised in the APCR the court erred in not allowing an evidentiary

hearing to present evidence and respond to these disputes.

Blueford timely sought writ with The Court of Appeal for the Second Circuit of Louisiana

which denied relief on December 8, 2016. Because of the August floods in the State of Louisiana, Mr.

Blueford was transferred to the Louisiana State Prison at Angola, he subsequently was transferred back

to Hunt Correctional Center. Unfortunately while in the process of being transferred the December 8,

2016 decision was not received by him until January 26, 2017, the date he signed for legal mail with

the institution. (See Exhibit #3 copy of envelope and decision of the Second Circuit Court of Appeal).

According to the rules of court, it was the fault of the State Prison System for giving Blueford the Court

of Appeals decision late. Blueford contends the limitations period should not start until January 26,

2017, the date on which an alleged state-imposed impediment to filing his writ of certiorari was

removed. Blueford now seeks writs with this Honorable State Supreme Court of Louisiana to review

the lower courts decision and reverse the ruling issued below.

An application for writ of habeas corpus § 2254 was filed with copies of writs and mail

receipts demonstrating timeliness. Petitioner raised the following claims in his § 2254 petition and

forward the claims and arguments by reference herein.

(1) Counsel was ineffective when he failed to object to Ms. Massey remaining on the jury and

returning a verdict when she had not heard or understood the evidence, in violation of the

Fifth, Sixth and Fourteenth Amendment and Article 1 Section 13 of the La. Constitution;

and

(2) Counsel was ineffective in failing to file a motion to quash the Habitual Offender Bill of

Information on the grounds that it contains allegations of irrelevant convictions, and failed to

object to their inclusion and consideration at the HFC hearing, in violation of the Fifth, Sixth

and Fourteenth Amendments and Article 1 Section 13 of the La. Constitution.

(ii) STATEMENT OF FACTS

It is New Year's Day, 2011, at the Townhouse Club in Bastrop, Louisiana. Joseph Blueford steps

outside as the club closes. Lying in wait for him is Mark Ramey. Mark attacks Joseph. The two tussle.

The crowd outside watches. Someone breaks up the fight. Joseph and his friend Bobby Mays break

loose as the fracas begins anew. They make it to Joseph's truck. With people coming at them from all

directions, shots are fired out the passenger's side window. (Vol. IV. pp. 833-835). two people are shot;

Rosahonda Vance, in the upper thigh; and Maurice Pitts, in the hand (Vol. Ill p. 691).

Roshaonda Vance testifies at trial she saw Joseph Blueford shoot her. (Vol. Ill p. 736). Shekeva

King, who was with Roshonda, also testifies Joseph Blueford was the shooter. (Vol. Ill p. 705). Both

deny seeing anyone else in the truck with Joseph. (Vol. Ill pp. 757, 759, 764). Joseph testifies Bobby

Mays was with him in the truck and fired out the passenger side window. (Vol. Ill pp. 835, 847).

Bobby Mays gets out of the truck immediately after firing the shots. (Vol. IV. p. 835). Joseph

goes straight to the Bastrop Police Department to report the shooting. He is turned away and told to go

to the Morehouse Parish Sheriffs Office (MPSO). (Vol. IV. p. 835-36). He goes to the MPSO, but

again is turned away without anyone taking a report. Shortly after leaving the Sheriffs Office, Joseph is

stopped by a sheriff's deputy who had seen a BOLO for Joseph's vehicle. When detectives searched his

vehicle, they found a spent shell casing. (Vol. IV. p. 767).

iii) REASONS FOR GRANTING THE PETITION

The Supreme Court should grant this petition according to Witherspoon v. Illiniois, 391

U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968); Irvin v. Dowd, 366 U.S. 717, 81 S.Ct. 1639, 6 L.Ed.2d

751 (1961).

The right to an 'impartial' jury is guaranteed by the Louisiana Constitution of 1974 and the

Sixth Amendment of the United States Constitution applied to the states through the Due

Process Clause of the Fourteenth Amendment. Thus, the minimal standards of constitutional due

process guarantees to the criminally accused a fair trial by a panel of impartial and 'indifferent'

jurors. A fair trial in a fair tribunal is a basic requirement of due process. In re Murchison, 349

U.S. 133, 136, 75 S.Ct. 623,625, 99 L.Ed 942 (1955).

Also the Supreme Court should grant this petition because in this state of the record, we cannot

say that the juror's inability to hear and understand substantial portion of the testimony was harmless

beyond a reasonable doubt. Indeed, the failure of one juror to participate meaningfully cannot be

justified on the basis that those jurors who did participate found the testimony to be credible. Hence,

the juror's inability to hear denied the defendant the right to a fair trial and that the court abused its

discretion in refusing to declare a mistrial or new trial. Moreover, a juror cannot be aware of what she

cannot hear. Thus, the juror here could not participate in meaningful discussion during the deliberative

stage of the trial nor decide the case intelligently. The effect of the juror's inability to hear the testimony

was tantamount to the juror not being in attendance for more than one-third of the trial, thus denying

the defendant the right to a jury of twelve.

APPEALABLE QUESTIONS

Question 1: Does a petitioner have the right to a fair and impartial trial when a juror does not hear or

understanding the evidence being provided by the Court?

DOES A PETITIONER HAVE THE RIGHT TO A FAIR AND IMPARTIAL TRIAL WHEN A

JUROR DOES NOT HEAR OR UNDERSTANDING THE EVIDENCE BEING PROVIDED BY

THE COURT?

Introduction - Juror Massey's Condition During Trial and Deliberation

Versus Her Conduct During Voir Dire and the Trial.

The District Court committed clear error in finding that Mr. “Blueford failed to prove that

Massey could not hear the proceedings in order to overcome the trial judge's specific factual finding

that there was no indication during the trial that Massey had difficultly hearing or understanding the

proceedings. “ROA.425. The Louisiana state courts have never determined, on direct appeal or in post

conviction proceeding, whether Juror Massey could hear or understand the evidence at Mr. Blueford's

trial. Instead, much like the District Court, the State courts erred by focusing on Juror Massey's conduct

during voir dire and the trial and by ignoring/failing to investigate her condition during the trial and

during deliberations.

Mr. Britton ineffectively represented Mr. Blueford, and the State courts erred - in a manner that

was contrary to, or involved an unreasonable application of, clearly established Federal law. There was

a complete lack of investigation into Juror Massey's condition during the trial and during deliberations

- her inability to hear or to understand any of the evidence at trial - by Mr. Britton and the Louisiana

courts. Juror Massey's condition during trial and during deliberations was not challenged with

investigation or developed with evidence; rather, it was met with cursory and/or uncorroborated

observations of her - conduct during voir dire and the trial. Therefore, the only evidence regarding

Juror Massey's condiction after Mr. Blueford's trial started is the note from the jury that stated she had

not heard or understood anything during the trial.

Moreover, the District Court erred when it rejected the Report and Recommendation of

Magistrate Judge Hayes that the State's habeas decision was “contrary to, or involved an unreasonable

application of, clearly established Federal law.” ROA.425. The District Court found that the state courts

reasonably could have concluded that Mr. Britton made a strategic choice. However, the District

Court's decision is flawed because Mr. Britton's failure to investigate Juror Massey's condition

prevented Mr. Britton from having a factual basis or a foundation of factual knowledge on which to

make a reasonable decision based on his legal knowledge and expertise. The Sixth Amendment which

applies to the States through the Due Process Clause of the Fourteenth Amendment, provide in part: “In

all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial

jury of the State and district wherein the crime shall have been committed,” U.S. Const. Amend Sixth.

This clause has been interpreted to mean that a defendant is entitled to “a tribunal both impartial and

mentally competent to afford a hearing. Tanner v. United States, 483 U.S. 107, 126 (1987) (quoting

Jordan v. Massachusetts, 225 U.S. 167, 176 (1912) To satisfy this fundamental standard, jurors must be

able to “conscientiously and property carry out their sworn duty to apply the law to the facts of the

particular case.” Biagas v. Valentine, No. 4:06-CV-0668, 2007 WL 1217976, at *7 (S.D. Tex. Apr. 23,

2007), afFd, 265 F. App'x 166 (5th Cir. 2008) (quoting Lockhart v. McCree, 476 U.S. 162, 184 (1986);

see McIIwain v. United States, 464 U.S. 972, 975 (1983)

The State courts could not have reasonably determined that Mr. Britton made a reasoned

decision to keep Juror Massey on Mr. Blueford's jury because Mr. Britton failed to investigate, through

any means, including, but not necessarily limited to, an available evidentiary hearing that would have

been mandatory if requested by Mr. Britton and would have established whether Juror Massey had

heard or understood any of the evidence at Mr. Blueford's trial.

The District Court correctly found that Defense counsel's strategic choices made after thorough

investigation of law and facts relevant to plausible options are virtually unchallenged. Moreover, the

District Court correctly noted that this Court has explained that counsel is afforded particular leeway

where a potential strategy carries “double-edged” consequences.

However, while the District Court, the State, and Mr. Britton point out that Mr. Britton made

decisions based on the admittedly “doubled-edged” consequences of removing Juror Massey, the

District Court, the State and Mr. Britton overlooked or undervalued the fact that virtually

unchallengable difference is afforded to Defense counsel's strategic choice only when they have been

made after thorough investigation of law and facts relevant to plausible options.

In the instant matter, Mr. Britton failed to undertake a thorough investigation of law and facts

relevant to plausible options; rather, he undertook no investigation at all.

That is, Mr. Britton was ineffective when he failed to request that the State trial court hold a hearing as

to Juror Massey, who had not heard or understood anything that went on at trial. Due Process “protect a

defendant from jurors who are incapable of rendering an impartial verdict. Such as when a juror is

insane or biased against the defendant. Peters v. Kiff 407 U.S. 493, 501-02 (1972) Like wise, a

physical infirmity, such as a hearing impairment, can render a juror incompetent to serve on jury. See

Gov't of Virgin Islands v. Nicholas, 759 F.2d 1073, 1078 (3rd Cir. 1985)(noting a juror could be

incapable of rendering satisfactory jury service” if unable to hear the trial proceedings); see. e.g.

United States v. Leahy, 82 F.3d 624, 629 (5th Cir. 1996) (district court removed a hearing impaired juror

after jury deliberations had begun because he “had not heard significant amounts of testimony and

could not participate in deliberations”) United States v. Quiroz-Cortez, 960 F.2d 418, 419 (5th Cir. 1992)

(After jury deliberation had begun, district court excused a hard of hearing juror who may not have

heard all of the trial testimony); United States v. L'Hoste, 609 F.2d 796, 801 n.4 (5th Cir. 1980) Prior to

jury deliberations, the district court disqualified a juror as incompetent after concluding “she had a

hearing impairment and had not heard portion of the testimony”).

Further, state courts have found that juror's inability to hear or comprehend testimony can

infringe upon a defendant's Sixth Amendment right. People v. Trevino, 826 P.2d 399, 401 (Colo App.

1991)(the effect of one juror's inability to hear testimony during trial denied defendant “the right to

a jury of twelve”) The presence of a juror with a physical impairment of such magnitude as to interfere

with the juror's ability to hear and understand the presented testimony and evidence precludes a verdict

by all jurors.

“It is clearly established that the Supreme Court views the denial of the right to an impartial

decision-maker to be such an error that taints any resulting conviction with constitutional infirmity.”

Virgil v. Dretke, 446 F.3d 598, 607 (5th Cir. 2006).

The State previously argued, before the State courts and before District Court, that Mr. Britton

took a gamble on Juror Massey because of her prior jury service, wherein a defendant was acquitted.

However, without inquiring as to Juror Massey's inability to hear or to understand any testimony or

evidence, Mr. Britton lacked sufficient knowledge to form an intelligent and reasonable basis to make a

strategic decision as to whether Juror Massey's past experience would benefit Mr. Blueford given her

then current inability to hear or to understand testimony.

Similarly, the State trial court erred -

in a manner that was contrary to, or involve an

unreasonable application of, clearly established Federal law - when it failed to undertake any action to

investigate or to develop evidence regarding the condition of Juror Massey during the trial and during

deliberations and instead focused on her conduct during voir dire and the trial.

II.

STATE COURT PROCEEDINGS

The District Court Judge correctly set forth the State Court Proceedings. Accordingly, the

following is taken verbatim from the District Court's Ruling, ROA.490-13.

“Blueford was charged in the Fourth Judicial District Court, Morehouse Parish, Louisiana, with

two counts of attempted second degree murder, a violation of La. R.S. 14:27 and 14:30.1, and

1 Citation to the ROA. Will be made in footnotes added to the quoted lenguage by the District Court. There were no

footnotes in the original quoted lenguage.

possession of a firearm by a convicted felon, a violation of La. R.S. 14:95.1.2

Blueford was tried by a jury in March 2012. Blueford was represented by George W. Britton, III

('Britton'). The prosecutor was Stephen Sylvester ('Sylvester'). At the conclusion of trial, the Judge

provided jury instructions, directed the jury to retire, and excused the two alternate jurors. After a

recess, the court reconvened, and the following exchange occurred:

Court: Let's return to the record in the State v. Joseph Blueford, 11-14F. The defendant is present with

counsel. The state is also present. Madam Bailiff has handed me a note from the jury. It reads: “Your

Honor, a juror Ms. Massey has said that she has not heard and has not understood anything that was

said in trial and she is wondering what to do. Shouldn't you have an alternative juror?” That is the

question.

Mr. Sylvester:

Too late for that.

Mr. Britton:

We cannot have an alternate juror.

Mr. Sylvester:

That's right.

Court:

The last question is should Ms. Massey be excused or allowed to go

on with deliberations?

Mr. Britton:

I mean, I don't know. If they have ten, they have ten verdicts,

regardless of what Ms. Massey has to say. So I don't think she should

be excused. But if they don't have a verdict, they don't have a verdict,

you know, whichever Ms. Massey goes.

Court:

So at this time it would be the pleasure of the counsel not to excuse

her from any jury deliberations?

Mr. Britton:

That's right.

Mr. Sylvester:

Yes, sir.

Court:

All right.

Mr. Britton:

I think if we look at it this way in terms of the jury,

we go in that courtroom and talk and talk to a witness, there

should be a speaker behind the jury box or

something like that.

Court:

I would like to explain to them that once the deliberations start, the

2 ROA. 1635

jury - alternates are dismissed.

The jury was brought back into the courtroom

Court: Members of the jury, before the proceedings, a note was submitted to the bailiff. The

note reads: “Your Honor, the juror Ms. Massey said she has not heard and does not

understand anything that's been said in the trial. She doesn't know what to do. Should we

have an alternative juror?” Let me advise you that under the Code of Criminal Procedure once

the jury begins jury deliberations, the two alternatives are excused. I'd also like to remind

you that the provisions or charge still say that at least ten of you must agree on the same verdict

on each count. It requires ten of the twelve agreeing on each count. So that is my response to

you. Don't know how may we addressed everyone here and asked them to repeat, and at no

time was there any indication that Ms. Massey was having a problem. So, I'd encourage you to

go back and resume your deliberations.

The jury was then retired from the courtroom for further deliberations, with Ms. Massey

('Massey') included. [Doc. No. 16-2 at 1158-60]3; Blueford, 137 So.3d at 66.4

The jury acquitted Blueford on one count of attempted murder by a vote of 10-2. On the second

count of attempted murder, it convicted him of the responsive verdict of aggravated battery by a vote of

10-2. The jury also convicted Blueford of the possession of a firearm by a convicted felon count by a

vote of 11-1. Ms. Massey voted with the majority on all three ballots. Blueford, 137 So.3dat67.5

After the state filed a habeas offender bill, the district court found that Blueford was a fourthfelony offender and sentenced him to serve a life sentence at hard labor for aggravated battery and a

concurrent 65-years hard labor term, without parole, for possession of a firearm by a convicted felon.6

Blueford's conviction was affirmed on direct appeal by the Louisiana Second Court of Appeal

on March 5, 2014. Blueford, 137 So.3d 54.7. The Louisiana Supreme Court denied Blueford's

subsequent application for writ of certiorari on November 21, 2014; State v. Blueford, 2014-0745, 160

So.3d 968 (La. 11/21/14):

3 ROA. 1388-90.

4 ROA. 1634-62.

5 .ROA. 1635, 1657.

6 ROA. 1635.

7 ROA. 1634-62, esp. 1655-61 (finding the issue with Juror Massey had been waived and noting that the matter could be

further developed in post conviction relief).

8 ROA. 1702 (The written review of the application was limited to the word, Denied.")

On April 8, 2016, Blueford filed an application for post-conviction relief in the state district

court.9 He alleged he was denied effective assistance of counsel when his trial counsel, Britton, (1)

failed to object to Massey remaining on the jury and returned a verdict when she said she had not heard

or understood the evidence; and (2) failed to file a Motion to Quash the Habitual Offender Bill of

Information on grounds that it contained allegations of irrelevant convictions, and failed to object to the

inclusion and consideration of such convictions at the habitual offender hearing. Blueford also claimed

that the trial court erred when it permitted Massey to cast the deciding vote on guilty after admitting

she did not hear and did not understand any of the testimony. [Doc. No. 16-5 at 1473-1504].10

The state district court denied the application on August 29, 2016.11 The district court

incorporated the State's Objection to Petitioner's Application for'Post-Conviction Relief in its Reasons

for Judgment and denied Blueford’s claim of ineffective assistance of counsel on the basis that (1) “[a]t

the outset of voir dire the Court specifically directed the venire that they should inform the Court if

they did not hear a question or response so that it could be repeated”; (2) no member of the venire

indicated she or he was incapable of serving on the jury because of a mental or physical infirmity; (3)

there was no indication during the trial that Massey had difficulty hearing or understanding the

proceedings; (4) “Mr. Britton is a seasoned criminal defense attorney who zealously and competently

represented [Blueford] at all stages of trial;” (5) Mr. Britton knew from voir dire that Massey had

previously served on another criminal jury; and (6) after consulting with Blueford, Mr. Britton “made

the strategic decision to allow deliberations to proceed without objection,” which was a “reasonable

tactical decision. [Doc. No. 16-5 at 1507] 5512

The Second Circuit Court of Appeal denied Blueford's application on December 8, 2016.13 On

9 ROA. 1703-34.

10 ROA. 1703-34.

11 ROA. 1735-38.

12 ROA. 1737.

13 ROA. 1773 (The writ was denied "[o]n the showing made," without analysis.)

February 1, 2017, Blueford filed a writ application in the Louisiana Supreme Court, which the court

denied as untimely on April 24, 2017. »14

III.

ACTION OF THE TRIAL COURT

The District Court correctly set forth the proceedings of the federal Trial Court. Accordingly, the

following is taken verbatim from the District Court's Ruling, ROA. 413-15.15

“On May 15, 2017, Blueford filed the instant federal habeas corpus petition raising the same

claims as in the state court:

Claim One:

Petitioner was denied effective assistance of counsel in

violation of the Fifth, Sixth, and Fourteenth Amendments to the

United States Constitution and Article 1, Section 13 of the

Louisiana Constitution when counsel

(1)

Failed to object to Ms. Massey remaining on the jury and

returning a verdict when she said she had not heard or

understood the evidence; and

(2)

Failed to file a Motion to Quash the Habitual Offender

Bill of Information on grounds that it contained

allegations of irrelevant convictions, and failed to object

to their inclusion and consideration at the habitual

offender hearing.

Claim Two:

The trial court erred when it permitted a juror to cast the

deciding vote on guilty after admitting she did not hear

and did not understand any of the testimony, in violation

of the right to a fair trial and due process under the Fifth,

Sixth, and Fourteenth Amendments to the United States

Constitution and Article 1, Section 17 of the Louisiana

Constitution.

[Doc. Nos. 1-2, 5],16

The State filed its response on March 14, 2018, [Doc. Nos. 15, 16],17 in which it submitted that

Blueford has exhausted his state court remedies and argued the Blueford had no substantive grounds to

14 ROA. 1807-08.

15 Citations to the ROA. Will be made in footnotes to the quoted lenguage by the District Court.

16 ROA. 7-181, 208-24, 237-48.

17 ROA. 260-79, 505-1808.

support his Petition. [Doc. No. 15 at 4],18 On March 26, 2018, Blueford filed a reply. [Doc. No. 17].19

On August 28, 2018, the Magistrate Judge held an evidentiary hearing on the issue of juror

competence, with testimony from Blueford, Britton, Sylvester, and a member of the petitioner jury

from Petitioner's trial.20 Britton explained his decision to have Ms. Massey remain on the jury:

[I]t seemed from my perspective improbable that she

didn't hear anything. We had a voir dire process. She

was questioned during the voir dire process.

It appeared, from the words of the particular message, to

be an effort to get her off the jury from the foreman from the foreman's perspective. Because, like I said, we

had with a little voir dire. I asked questions of each on of

the potential jurors. Mr. Sylvester had questioned each

one of the prospective juror. And the foreman note

suggested to me that that was an effort to get her off the

jury.

[Doc. No. 34,p 9-10].21

And she was a juror that was, in terms of my

experience with a jury appeared to be good juror.

Based on her answers in voir dire, based upon, you know,

gut reaction, gut feelings of any attorney, I thought she

was a good juror.

[Doc. No. 34, p. 13].22

My recollection is during the general course of voir dire,

there were questions generally asked have you ever

served on a jury before?

And my recollection, she had served, and it was not

guilty on that.

18 ROA. 263.

19 ROA. 280-89.

20 ROA. 433-502.

21 ROA. 441-42.

22 ROA. 445.

[Doc. No. 34,p.24].23

In terms of if everybody that says that were found not

guilty, I'm going to try to put them on the jury, that's not

a hard-and-fast rule. It depends on how they respond to

other questions and a totality of the situation, ultimately

gives me some type of grade as to how strongly should

the jury is and how likely that juror is to be receptive to

my case.

[Doc. No. 34, p.25].24

[Fjrom the wording on the note, it appeared the foreman

was trying to get rid of Ms. Massey. And it wasn't like it

was done a note that came from Ms. Massey. It was the note

came from the foreman saying that she didn't hear

anything.

[Doc. No. 34,p.29].25

This is the foreman speaking to Ms. Massey, worded in a

way that would suggest to me that he wants an alternative

to be sent in to be on a jury.

[Doc. No. 24,p. 34] ,26

[S]he was one of the higher-rated [] jurors.

[Doc. No. 34, p.34-35].27

When asked why he didn't ask for a mistrial, Britton responded:

I guess, based upon my recollection and particular

transcript, I would say that whether we could get a

mistrial, would it effect a mistrial, I felt the trial had gone

fairly well at that particular point in time. I felt like, you

know, we were going to get not guilty verdict in

terms - that's just me, you know, projecting in terms of

how the trial was going.

[Doc No. 34, p.32].28

23 ROA. 456.

24 ROA. 457.

25 ROA. 461.

26 ROA. 466.

27 ROA. 466-67.

28 ROA. 464.

As indicated above, the jury found Blueford not guilty on one count of attempted second degree

murder, and guilty of only a responsive verdict of aggravated battery on the other count of attempted

second degree murder.

On October 16, 2018, the Magistrate Judge filed her Report and Recommendation [Doc

No. 33].29 The delay for filing objections has passed, and the matter is ripe.” ROA. 413-15.

On November 1, 2018, the District Court, after “conducting] a de novo review of the record in

this matter,” declined to adopt the report and recommendation “insofar as it recommended that the

Petitioner be granted on the two grounds set forth above.” ROA. 408-26, esp. 409. However, the

District Court, then, adopted “the Report and Recommendation insofar as it recommends that the

petitioner be denied as to the asserted grounds pertaining to his counsel's failure to file a Motion to

Quash the Habitual Offender Bill of Information.” Id.

On November 1, 2018, Mr. Blueford filed a notice of appeal. ROA. 428-29.

On November 5, 2018, the District Court granted a certificate of Appealability. ROA. 431.

SUMMARY OF THE ARGUMENT

III.

The District Judge committed clear error in finding that Mr. “Blueford failed to prove

that Massey could not hear the proceedings in order to overcome the trial judge's specific factual

finding that there was no indication during the trial that Massey had difficulty hearing or understanding

the proceedings.” ROA. 425. The Louisiana proceedings, whether Jury Massey could hear or

understand the evidence at Mr. Blueford's trial. Instead, much like the District Court, the State courts

erred by focusing on Juror Massey's conduct during voir dire and the trial and by ignoring/failing to

investigate her conduct during the trial and during deliberations.

Mr. Britton ineffectively represented Mr. Blueford, and the State trial courts erred-in an manner

that was contrary to, or involved an unreasonable application of, clearly established Federal law. There

29 ROA. 386-407.

was a complete lack of investigation into Juror Massey's conduct during the trial and during

deliberations-her inability to hear or to understand any of the evidence at trial-by Mr. Britton and the

Louisiana courts. Juror Massey's conduct during trial and during deliberations was not challenged with

investigation or developed with evidence; rather, it was met with cursory and/or uncorroborated

observations of her conduct during voir dire and the trial. Therefore, the only evidence regarding Juror

Massey's conduct after Mr. Blueford's trial started is the note from the jury that she had not heard or

understood anything during the trial.

Moreover, the District Court erred when it rejected the Report and Recommendation of the

Magistrate Judge Hayes that the State's habeas decision was “contrary to, or involved an unreasonable

application of, clearly established Federal law.” ROA. 425. The District Court found that the state

courts reasonably could have have concluded that Mr. Britton made a strategic choice. However, the

District Court's decision is flawed because Mr. Britton's failure to investigate Juror Massey's conduct

prevented Mr. Britton from having a factual basis or a foundation of factual knowledge on which to

make a reasoned decision based on his legal knowledge and expertise.

The State courts could not have reasonably determined that Mr. Britton made a reasoned

decision to keep Juror Massey on Mr. Blueford's jury because Mr. Britton failed to investigate, through

any means, including, but not necessarily limited to, an available evidentiary hearing that would have

been mandatory if requested by Mr. Britton and would have established whether Juror Massey had

heard or understood any of the evidence at Mr. Blueford's trial.

The District Court correctly found that Defense counsel's strategic choice made after thorough

investigation of law and facts relevant to plausible options are virtually unchallengable. Moreover, the

District Court correctly noted that this Court has explained, that counsel is afforded particular leeway

where a potential strategy carries “double-edged” consequences of removing Juror Massey, the District

Court, the State , and Mr. Britton overlooked or undervalued the fact that virtually unchallengable

defense is afforded to Defense counsel's strategic choice only when they have been made after thorough

investigation of law and facts relevant to plausible options.

In the instant matter, Mr. Britton failed to undertake a thorough investigation of law and facts

relevant to plausible options; rather, he undertook no investigation at all. This is, Mr. Britton was

ineffective when he failed to request that the State trial court hold a hearing as to Juror Massey, who

had not heard or understood anything that went on at the trial.

The State previously argued, before the State courts and before the District Court, that Mr.

Britton took a gamble on Juror Massey because of her prior jury services, wherein a defendant was

acquitted. However, without inquiring as to juror Massey's inability to hear or understand any

testimony or evidence, Mr. Britton lacked sufficient knowledge to form an intelligent and reasonable

basis to make a strategic decision as to whether Juror Massey's past experiences would benefit Mr.

Blueford given her current inability to hear or to understand testimony.

Similarly, the State trial court erred-in a manner that was contrary to, or involved an

unreasonable application of, clearly established Federal law-when it failed to undertake any action to

investigate or to develop evidence regarding the condition of Juror Massey during the trial and during

deliberations and instead focused on her conduct during voir dire and the trial.

ARGUMENT

STANDARD OF REVIEW

In Poree v. Collins, 866 F.3d 235, 244-45 (5th Cir. 2017), this Court recognized that it “review[s]

the district court's findings of fact for clear error and review its conclusion of law de novo, applying

that same standard or review to the state court's decision as district court.” That is, this Court, “[wjhen

examining mixed question of law and fact,. . . adhere[s] to a de novo standard under which we

independently apply to the facts found by the district court, as long as the district court's factual

findings are not clearly erroneous.” 866 F.3d at 245 (internal quotation marks, citations, and footnote

omitted). Further, the Poree court stated “[fjederal habeas proceedings are subject to the rules

prescribed by the Antiterrorism and Effective Death Penalty Act (AEDPA),” which “Directs that a writ

of habeas corpus shall not be granted unless the state court 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 facts in light of the evidence presented in the State court

proceeding.” 866 F.3d at 245 (internal quotation marks, citations, and footnote omitted).

The District Court committed clear error in finding that Mr. “Blueford failed

II.

to prove that Massey could not hear the proceedings in order to overcome the trial

judge's specific factual finding that there was no indication during the trial that

Massey had difficulty hearing or understanding the proceedings,” ROA. 425, by

focusing on Juror Massey's conduct during voir dire and trial rather than her

condition during trial and deliberation.

The District Court committed clear error in finding that Mr. “Blueford failed to prove that

Massey could not hear the proceedings in order to overcome the trial judge's specific factual finding

that there was no indication during the trial that Massey had difficultly hearing or understanding the

proceedings.” ROA. 425. The Louisiana state courts have never determined, on direct appeal or in post

conviction proceedings, whether Juror Massey could hear or understand the evidence at Mr. Blueford's

trial. Instead, much like the District Court, the State courts erred by focusing on Juror Massey's conduct

during voir dire and the trial and/or by ignoring/failing to investigate her conduct during the trial and

during deliberations.

Mr. Britton ineffectively represented Mr. Blueford when he completely failed to investigate

Juror Massey's condition during the trial and during deliberations-her inability to hear or to understand

any of the evidence at trial. Juror Massey's condition during trial during deliberations was challenged

with investigation or developed with evidence; rather, it was just meet with cursory and/or

uncorroborated observations of her conduct during voir dire and the trial. Therefore, the only evidence

regarding juror Massey's condition after Mr. Blueford's trial started is the note from the jury that she

had not heard or understood anything during the trial. Given the fundamental nature of a defendant's

right to a trial by an impartial and competent jury, the result in case is unreliable. “Our criminal justice

system is predicated on the notion that those accused of criminal offenses are innocent until proven

guilty and are entitled to a jury pf persons willing and able to consider fairly the evidence presented in

order to reach a determination of guilt or innocence.” Blueford was denied these basic rights.

As the Magistrate Judge found in her Report and Recommendation, “After receiving the

foreman's note indicating that Ms. Massey had not heard or understood anything that was during the

trial, the court briefly conferred with the prosecutor and defense counsel. Mr. Sylvester and Mr. Britton

agreed it was too late to replace Ms. Massey with an alternate juror, and Mr. Britton, without consulting

his client, informed the court he did not want to excuse Ms. Massey. Mr. Britton did not challenge Ms.

Massey's remaining on the jury, move for a mistrial request an evidentiary hearing, or consult with

his client regarding any of these possible responses to Ms. Massey's revelation. Blue ford was

prejudiced by the presence of Ms. Massey, an incompetent juror, in violation of the Sixth and

Fourteenth Amendments, and the state court's decision to the contrary is unreasonable application

of clearly established federal law. The trial court brought the jury back into the courtroom, informed

them that there was no indication that Ms. Massey had been having any problems during the trial and

the jury needed only ten jurors to agree on a verdict, and sent all of the jury members, including Ms.

Massey, back to resume deliberations.” ROA. 398-99. As Magistrate Judge Hayes found, the State trial

court “did not hold, and Mr. Britton did not request, a hearing to determine whether Ms. Massey was

actually unable to hear or understand the evidence. Therefore, the trial court made no factual findings

to support the implied conclusion that Ms. Massey was competent.” ROA 399.

Thus, the District Court committed clear error in finding that Mr. “Blueford failed to prove that

Massey could not hear the proceedings in order to overcome the trial judge's specific factual finding

that there was no indication during the trial that Massey had difficultly hearing or understanding the

proceedings,” ROA. 425, by focusing on Juror Massey's conduct during voir dire and the trial rather

then her condition during trial and deliberation.

III.

The District Court Erred When it Rejected the Report and Recommendation

of Magistrate Judge Karen L. Hayes That the State's Habeas Decision “Was

Established Federal Law.” ROA. 425.

The District Court found that the state courts reasonably could have concluded that Mr. Britton

made a strategic choice to keep Juror Massey on the juror. ROA. 425. However, the District Court's

decision is flowed because Mr. Britton's failure to investigate Juror Massey's conduct prevented Mr.

Britton from having a factual basis or a foundation of factual knowledge on which to make a reasoned

decision based on his legal knowledge and expertise.

The State courts could not have reasonably determined that Mr. Britton made a reasonable

decision to keep Juror Massey on Mr. Blueford's jury because Mr. Britton failed to investigate, through

any means, including, but not necessarily limited to, an available evidentiary hearing that would have

been mandatory if requested by Mr. Britton and would have established whether Juror Massey had

heard or understood any of the evidence at Mr. Blueford's trial. See State v. Colbert, 2007-0947, p. 22

(La.App.4,h Cir. 7/23/08), 990 So.2d 76, 90 (citing State v. Fuller, 454 So.2d 119, 123 (La. 1984)).

The District Court correctly found that Defense counsel's strategic choices made after thorough

investigation of law and facts relevant to plausible options are virtually unchallengable. See Rhoades v.

Davis, 852 F.3d 422, 434 (5th Cir. 2017); Wiggins v. Smith, 539 U.S. 510,523, 123 S. Ct. 2527, 156 L.

Ed. 2d 471 (2003). Moreover, the District Court correctly noted that this Court has explained that

counsel is afforded particular leeway where a potential strategy carries “double-edged” consequences.

SzeAubin v. Quarterman, 470 F.3d 1096, 1103 (5th Cir. 2006); Rompilla v. Beard, 545 U.S. 374,162

L.Ed. 2d 360, 125 S. Ct. 2456.

However, while the District Court, the State and Mr. Britton point out that Mr. Britton made

decisions based on the admittedly “double-edged” consequences of removing Juror Massey, the District

Court, the State, and Mr. Britton overlooked or undervalued the fact that virtually unchallengable

deference is afforded to Defense counsel's strategic choice only when they have been made after

investigation of law and facts relevant to plausible options. Rhoades, 852 F.3d at 434.

In the instant matter, Mr. Britton failed to undertake a thorough investigation of law and facts

relevant to plausible options: rather, he undertook no investigation at all. That is, Mr. Britton was

ineffective when he failed to request that the State trial court hold a hearing as to Juror Massey, who

had not heard or understood anything that went on at the trial.

Indeed, Magistrate Judge Hayes noted that, because Mr. Britton did not have “full knowledge of

the facts or the law, defense counsel's decision cannot be considered conscious or strategic. Both the

trial transcript and his testimony at the hearing reveal that Mr. Britton believed an incompetent juror

could remain on the jury simply because Louisiana does not require a unanimous verdict to convict.”

As he stated, “If they have ten, they have ten verdicts, regardless of what Ms. Massey had to say.”

ROA. 399 (citing ROA. 1389). That is, “Mr. Britton demonstrated his ignorance of his client's

constitutional right to twelve competent jurors. Further, Mr. Britton admitted that he did not know of

the right to an evidentiary hearing regarding Ms. Massey's competency.” ROA. 399. Further, as

Magistrate Judge Haynes noted, “[tjhough Mr. Britton testified that he did not ask for a mistrial

because he thought the case had gone well, he agreed that Ms. Massey would not be a good juror if she

could not her or understand anything that was said during the trial.” ROA. 399.

Therefore, Magistrate Judge Hayes correctly concluded that “Mr. Britton's decision to keep Ms.

Massey on the jury cannot be considered a conscious and informed trial tactic. Both the trial transcripts

and his testimony at the hearing reveal that Mr. Britton believed an incompetent juror could

remain on the jury simply because Louisiana does not require a unanimous verdict to convict. As

he stated, “If they have ten, they have ten verdicts, regardless of what Ms. Massey had to say.” [doc

#16-2 at 1159]. In doing so, Mr. Britton demonstrated his ignorance of his client's constitutional right

to twelve competent jurors. Further, Mr. Britton admitted that he did not know of the right to an

evidentiary hearing regarding Ms. Massey competency. Though Mr. Britton testified that he did not ask

for a mistrial because he thought the case had gone well, he agreed that Ms. Massey would not be a

good juror if she could not hear or understand anything that was said during the trial. In this case,

neither the trial court nor defense counsel conducted even a rudimentary inquiry into Ms. Massey's

competence. No effort was made to determine whether she had heard and understood what was said

at trial and whether she could competently consider all of the evidence . When faced with a possibly

incompetent juror, Mr. Britton essentially did nothing. Given the trial court record and Mr. Britton's

hearing testimony, Mr. Britton's decision to keep Ms. Massey on the jury cannot be considered a

conscious

and informed trial tactic. Mr. Brittion's failure to explore Ms. Massey's alleged

incompetence and /or challenge her as a juror constitutes deficient performance under Strickland.

Blueford must also establish that counsel's deficient performance prejudiced his defense and

that the state court's decision was an unreasonable application of clearly established federal law.

Virgil 446 F.3d at 611. Strickland's prejudice standard is a well-rehearsed phrase in the inferior federal

courts: 'The defendant must show that there is a reasonable probability that, but for counsel's

unprofessional errors, the result of the proceeding would have been different. United States v. King,

917 F.2d 181, 183 (5th Cir. 1990); Strickland v. Washington, 466 U.S. 668, 687-88, 694, 104 S. Ct.

2052, 2064-65, 2068, 80 L.Ed.2d 674 (1984). A reasonable probability is a probability sufficient to

undermine confidence in the outcome.” Id. (quoting Strickland, 466 U.S. At 694). Mr. Britton's failure

to explore Ms. Massey's alleged incompetence and/o challenge her as a juror constitutes deficient

performance under Strickland.” ROA 399-400. Expressed in Strickland terms, the deficient

performance of counsel denied Blueford an impartial and competent jury, leaving him with one that

could not constitutionally convict, perforce establishing Strickland prejudice with its focus upon

reliability Id. at 614.

In sum, counsel's failure to follow up in response to Ms. Massey's note constitutes “objective

unreasonable” performance, which denied Blueford a competent jury and thus a fair and reliable trial

under Strickland. The state court's rejection of Blueford's ineffective assistance of counsel claim was

contrary to the Supreme Court's decision in Strickland. See Virgil, 466 F.3d at 614. Therefore, Blueford

is entitled to federal habeas corpus relief under the AEDPA.

As Magistrate Judge Hayes recognized, due to Mr. Britton's deficient performance, Ms. Massey

remained on the jury that convicted Blueford. The law mandates that jurors render a verdict based on

the evidence presented in court, but that did not occur here.” ROA. 400 (internal quotation marks and

citation omitted). As Magistrate Judges Hayes explained “[a] juror who cannot hear or understand any

of the evidence presented in court cannot logically render a verdict based on the evidence, and

therefore, is not an impartial and competent decision maker.” ROA. 400 (internal quotation marks and

citations omitted).

Thus, Juror Massey “was incompetent to serve on the jury and could not render a verdict based

on a fair consideration of the evidence.” ROA. 401 Because of “the fundamental nature of a defendant's

right to a trial by an impartial and competent jury,” the result of Mr. Blueford's “case is unreliable.”

ROA. 401

Thus, because “Mr. Britton did not challenge Ms. Massey's remaining on the jury, move for a

mistrial, request an evidentiary hearing, or consult with his client regarding any of these possible

responses to Ms. Massey's revelation[,] Blueford was prejudiced by the presence of Ms. Massey, an

incompetent juror, in violation of the Sixth and Fourteenth Amendments, and the state court's

decision to the contrary is an unreasonable application of clearly established federal law.” ROA. 401.

Accordingly, as found by Magistrate Judges Hayes, “[t]he state courts rejection of Blueford's

ineffective assistance of counsel claim was contrary to the Supreme Court's decision in Strickland.

Therefore, Blueford is entitled to federal habeas corpus relief under the AEDPA.” ROA 401. (internal

citation omitted).

Similarly, the State trial court erred-in a manner that was contrary to, or involved an

unreasonable application of, clearly established Federal law-when it failed to undertake any action to

investigate or develop evidence regarding the condition of Juror Massey during the trial and during

deliberations and instead focused on her conduct during voir dire and the trial.

As Magistrate Judge Hayes noted, “the trial court did not offer a mistrial, conduct an

evidentiary hearing, or even question Ms. Massey about her claim that she had not heard the testimony

at trial. Absent some sort of hearing or fact finding, the State's argument that Ms. Massey was clearly

competent is unavailing. Without evidence to the contrary, this Court must assume that Ms. Massey

was telling the truth when she said did not hear or understand anything said at trial, and therefore was

incompetent.” ROA. 405. Indeed, either the foreman or Juror Massey were wrong or were lying for

nefarious and unknown reasons or Juror Massey was incompetent. These are possibilities that should

have been, and had to have been, explored in order to produce a trustworthy and constitutional trial and

verdict.

Mr. Blueford was was denied his constitutional right to a competent jury when Juror “Massey

was permitted to remain on the jury and render a verdict.

Therefore, the trial court's decision to allow Ms. Massey to remain on the jury had a substantial and

injurious effect on the jury's verdict.” ROA. 406. As a Magistrate Judge Haynes correctly found this

error ny the trial court also entitled Mr. Blueford to habeas corpus relief. Id.

CONCLUSION:

For the above reason the defendant-appellant, Joseph D. Blueford, respectfully submits that (1)

this Court should find District Court committed clear error in determining that Mr. “Blueford failed to

prove that Massey could not hear the proceedings in order to overcome the trial judge's specific factual

finding that there was no indication during the trial that Massey had difficulty hearing or understanding

the proceedings.” ROA. 425, by focusing on Juror Massey's conduct during voir dire and trial rather

her condition during trial and deliberation; and (2) this Court should find the District Court erred when

it rejected the Report and Recommendation of Magistrate Judge Karen L. Hayes that the State's habeas

decision “was contrary to, or involved an unreasonable application of, clearly established federal law.”

The Honorable Magistrate Judge, Karen L. Hayes granted and remanded the matter back to the

4th Judicial District Court, Parish of Morehouse, for a new trial or for further proceedings not consistent

therewith. In addition, the Honorable Judge, Terry A. Doughty in Blueford's Certificate of

Appealability stated and ruled that the applicant, Blueford made a substantial showing of denial of a

constitutional right, issues this Certificate of Appealability on the following issues:

(1) Whether he received ineffective assistance of counsel at trial when his attorney failed to object to a

juror remaining on the jury and returning a verdict when he received notice that she claimed not to

have heard or understood the evidence; and

(2) Whether the trial court violated his Sixth Amendment right to a competent jury when he allowed a

juror to remain on the jury and to return a verdict after he received notice she claimed not to have heard

or understood the evidence.

Therefore a reason of jurist shows that Blueford claim is debatable and wrong. The Fifth Circuit

Court of Appeal should have granted Blueford Certificate of Appealability. Blueford has shown (1) that

reasonable jurists found this court's assessment of the constitutional claims debatable and wrong. (2)

that reasonable jurists found claim debatable and that petition stated a valid claim of denial of a

constitutional right and debatable whether this court was correct in it's procedural ruling. Slack v. Me

Daniel, 529 U.S. 473, 484, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000).

Respectfully submitted on this

day of March, 2020.

Joseph Blueford # 393195

EHCC Fox

P.O. Box 174

St. Gabriel, Louisiana 70776

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.